8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): May 14, 2019

Cloud Peak Energy Inc.

(Exact name of registrant as specified in its charter)

Delaware	001-34547	26-3088162
(State or other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

748 T-7 Road, Gillette, Wyoming	82718
(Address of Principal Executive Offices)	(Zip Code)

Registrant’s telephone number, including area code: (307) 687-6000

Not Applicable

(Former name or former address if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

oWritten communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

oSoliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

oPre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

oPre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

Emerging growth company o

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o

Securities registered pursuant to Section 12(b) of the Act:

Title of Each Class	Trading Symbol(s)	Name of Each Exchange on Which Registered
*	*	*

*On April 11, 2019, the New York Stock Exchange filed a Form 25 with the Securities and Exchange Commission to remove the common stock of  Cloud Peak Energy Inc. from listing and registration on the New York Stock Exchange. Deregistration under Section 12(b) of the Act will become effective 90 days after the filing date of the Form 25.

Item 1.01Entry into a Material Definitive Agreement.

The information regarding the Receivables Purchase Agreement Amendment (as defined below) and the DIP Credit Agreement (as defined below) set forth in Item 2.03 of this Current Report on Form 8-K is incorporated into this Item 1.01 by reference.

Item 1.03Bankruptcy or Receivership.

As previously disclosed, on May 10, 2019 (the “Petition Date”), Cloud Peak Energy Inc. (“CPE,” the “Company” or “we”) and substantially all of its wholly owned domestic subsidiaries (together with CPE, the “Debtors”) filed voluntary petitions (collectively, the “Bankruptcy Petitions”) under chapter 11 (“Chapter 11”) of Title 11 of the U.S. Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Court”).  Pursuant to a motion filed by the Debtors, their Chapter 11 cases (collectively, the “Chapter 11 Cases”) are being jointly administered under the caption In re Cloud Peak Energy Inc., et al., Case No. 19-11047. Each Debtor will continue to operate its business as a “debtor in possession” under the jurisdiction of the Court and in accordance with the applicable provisions of the Bankruptcy Code and the orders of the Court.

On the Petition Date, the Debtors filed a number of motions with the Court generally designed to stabilize their operations and facilitate the Debtors’ transition into Chapter 11.  Certain of these motions sought authority from the Court for the Debtors to make payments upon, or otherwise honor, certain obligations that arose prior to the Petition Date, including obligations related to employee wages, salaries and benefits, taxes,  and certain vendors and other providers essential to the Debtors’ businesses. On May 14, 2019, the Court approved the relief sought in these motions on an interim basis.

The Debtors are seeking to sell all or substantially all of their assets pursuant to Section 363 of the Bankruptcy Code.  On May 13, 2019, to facilitate their continued marketing and sale process, the Debtors filed a motion with the Court to approve a bidding procedures process, including milestones by which parties in interest will be required to submit indications of interest and bids for all or a portion of the Debtors’ assets.

Copies of all of the court filings, including the motions and orders described above, are available at https://cases.primeclerk.com/cloudpeakenergy.

The information regarding the Receivables Purchase Agreement Amendment and DIP Credit Agreement set forth in Item 2.03 of this Current Report on Form 8-K is incorporated into this Item 1.03 by reference.

Item 2.03Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

Amendment to A/R Securitization Program

As previously disclosed, Cloud Peak Energy Resources LLC is party to an Accounts Receivable Securitization Program (the “A/R Securitization Program”) with PNC Bank, National Association, as administrator.  On May 15, 2019, we entered into a Second Amended and Restated Receivables Purchase Agreement (the “Receivables Purchase Agreement Amendment”), by and among Cloud Peak Energy Receivables LLC (“CPE Receivables”), Cloud Peak Energy Resources LLC (“CPER LLC”), the various Conduit Purchasers and Related Committed Purchasers (collectively, the “Purchasers”), LC Participants and Purchaser Agents from time to time party thereto, PNC Bank, National Association, as Administrator (the “Administrator”), and PNC Capital Markets LLC, as Structuring Agent. Prior to entering into the Receivables Purchase Agreement Amendment, it was approved by the Court on May 14, 2019.

Under the terms of the A/R Securitization Program, eligible trade receivables consist of certain trade receivables from certain of the Company’s operating subsidiaries. The amount available with respect to the receivables sold into the A/R Securitization Program is subject to customary limits and reserves, including reserves based on customer concentration and prior past due balances. Of the eligible pool of receivables sold to CPE Receivables, undivided interests in only a portion of the pool are sold to the Purchasers under the facility, subject to a $35,000,000 purchase limit, which was reduced from $70,000,000 under the A/R Securitization Program prior to

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the Receivables Purchase Agreement Amendment. Although the Purchasers in the program bear the risk of non-payment of purchased receivables, CPER LLC has agreed to indemnify the Purchasers, Purchaser Agents, Administrator and other secured parties with respect to various matters, including any defaults by CPER LLC or its operating subsidiaries under the documents relating to the A/R Securitization Program, and may be required to repurchase receivables which do not comply with the requirements of the program. CPER LLC services the receivables sold into the A/R Securitization Program.

The Purchasers under the A/R Securitization Program will be entitled to receive payments reflecting a specified discount on amounts funded thereunder calculated on the basis of the commercial paper rate or alternate rate, as applicable.  The commercial paper rate, which is applicable to the extent a Purchaser issues commercial paper to fund its purchases of receivables, is a rate equivalent to the weighted average cost incurred in connection with the issuance of such commercial paper.  If the commercial paper rate is not applicable, the alternate rate will apply.  The alternate rate is equal to 2.00% plus (i) one month LIBOR (subject to a 0% floor) or, (ii) if LIBOR is unavailable, the daily average base rate which is defined as the higher of either the prime rate or the federal funds rate plus 50 basis points.  CPE Receivables will pay fees to the Administrator and Purchaser, including paying (i) the Administrator a structuring fee, (ii) each of the Purchasers facility fees and program fees and (iii) letter of credit fees to each letter of credit participants.

The Receivables Purchase Agreement Amendment contains representations and warranties and affirmative, negative and financial covenants customary for financings of this type. The Receivables Purchase Agreement Amendment includes customary termination events for facilities of this type (with customary grace periods, if applicable), including termination events that relate specifically to certain aspects of the Chapter 11 Cases.

The foregoing description is only a summary of the Receivables Purchase Agreement Amendment, and is qualified in its entirety by reference to the full text of the Receivables Purchase Agreement Amendment, which is filed as Exhibit 10.1 hereto, respectively, and which is incorporated by reference herein.

Debtor-In-Possession Financing

On May 15, 2019, the Debtors entered into a Superpriority Senior Secured Priming Debtor-in-Possession Credit Agreement (the “DIP Credit Agreement”) by and among Cloud Peak Energy Inc. and the other Debtors, as borrowers, the various lenders from time to time party thereto (the “Lenders”) and Ankura Trust Company, LLC, as administrative agent and collateral agent providing for a debtor-in-possession term loan facility (the “DIP Financing”) in an amount not to exceed (i) $35,000,000 (as may be increased to give effect to any fees or interest that are paid in kind and to give effect to any incremental loans described below) (the “New Money Loans”) plus (ii) subject to the entry of a final order of the Court approving the financing under the DIP Credit Agreement (the “Final DIP Order”), Roll-Up Loans (as defined below) on terms and conditions set forth in the DIP Credit Agreement. On May 15, 2019, the Court granted interim approval of the motion to approve the DIP Financing (the “Interim DIP Order”) and borrowing of up to $10,000,000 of the New Money Loans thereunder.

The Debtors’ obligations under the DIP Credit Agreement are secured by first priority priming liens on substantially all of the Debtors’ assets, subject to certain permitted liens and agreed exclusions, including the exclusion of assets that secure obligations under the A/R Securitization Program.   The DIP Credit Agreement terminates on the earliest of: (a) February 15, 2020; (b) the date that without prior written consent of the requisite Lenders, any of the Chapter 11 Cases are converted to cases under chapter 7 of the Bankruptcy Code; (c) the date of dismissal of any of the Chapter 11 Cases without the prior written consent of the requisite Lenders; (d) the date of appointment in any Chapter 11 Case of a trustee without the prior written consent of the requisite Lenders; (e) the date of appointment in any of the Chapter 11 Cases of an examiner with expanded powers without prior written consent of the requisite Lenders; (f) consummation of a sale of all or substantially all of the Debtors’ assets, whether under Section 363 of the Bankruptcy Code or otherwise; (g) the consummation date of any plan under Chapter 11; (h) the termination in whole of the commitments following an event of default under the DIP Credit Agreement; or (i) thirty-five days after entry of the Interim DIP Order (or such later date as agreed by the Lenders), if the Final DIP Order has not been entered.

Proceeds of the New Money Loans will be used only in connection with an approved budget (adjusted for agreed variances), for the purposes of: (i) general corporate and working capital purposes; (ii) costs of the

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administration of the Chapter 11 Cases; and (iii) payment of transaction costs, fees and expenses with respect to the DIP Financing. New Money Loans will be made available in two or three draws, each subject to the satisfaction of certain conditions under the Credit Agreement, including compliance with a Borrowing Base (as defined in the DIP Credit Agreement). The first borrowing, which is capped at $10,000,000, will be funded within three business days of the date on which the Interim DIP Order is entered. The second borrowing will be funded within three business days of the date the Final DIP Order is entered. The third borrowing (if any), must occur within 30 days of the date the Final DIP Order is entered or any remaining unused commitments will expire.

Each Lender who is a party to the DIP Credit Agreement and a holder of 12.00% second lien senior notes due 2021 (the “2021 Notes”) issued by Cloud Peak Energy Resources, LLC and Cloud Peak Energy Finance Corp. will, subject to entry of and the terms of the Final DIP Order, roll-up an amount of the indebtedness they hold under the 2021 Notes equal to 80% of the New Money Loans provided by such Lender into loans incurred under the DIP Credit Agreement (all such loans, the “Roll-Up Loans”). The proceeds of such Roll-Up Loans will be used to refinance and discharge such indebtedness under the 2021 Notes or as otherwise set forth in the DIP Credit Agreement.

The DIP Credit Agreement also provides for up to $10,000,000 in uncommitted incremental term loans. Roll-Up Loans would also be incurred in an amount of up to 80% of such incremental loans if they are provided.

New Money Loans bear interest at a rate equal to, at our option, (a) the alternate base rate (subject to a 2% floor) plus 8% per annum or (b) the adjusted LIBOR rate (subject to a 1% floor) plus 9% annum. Roll-Up Loans will initially bear interest at the adjusted LIBOR rate (subject to a 1% floor) plus 9% per annum rate based on a one month interest period. The Debtors will pay certain other agreed fees to the Lenders and the agents under the DIP Credit Agreement. Fees and interests will be paid-in-kind and added to the principal amount of loans outstanding under the DIP Credit Agreement.

The DIP Credit Agreement contains usual and customary affirmative and negative covenants and events of default for transactions of this type. In addition,  the Debtors are required to maintain a minimum liquidity of $12,000,000 at all times, $6,000,000 of which must be held at all times in a segregated escrow account.

The foregoing description is only a summary of the DIP Credit Agreement, and is qualified in its entirety by reference to the full text of the DIP Credit Agreement, which is filed as Exhibit 10.2 hereto, respectively, and which is incorporated by reference herein.

Item 7.01Regulation FD Disclosure.

On May 14, 2019, the Company issued a press release announcing that the Company received interim approvals from the Court for all the “First Day” motions related to the Chapter 11 Cases. A copy of the press release is attached hereto as Exhibit 99.1.

The information contained in this Item 7.01 (including Exhibit 99.1) is furnished pursuant to this Item 7.01 and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, or otherwise subject to the liabilities of that Section, notwithstanding any general incorporation by reference language in other filings by the Company.

Cautionary Note Regarding Forward Looking Statements

This Report on Form 8-K, including Item 7.01, contains “forward-looking statements” within the meaning of the safe harbor provisions of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements are not statements of historical facts and often contain words such as “may,” “will,” “expect,” “believe,” “anticipate,” “plan,” “estimate,” “seek,” “could,” “should,” “intend,” “potential,” or words of similar meaning. Forward-looking statements are based on management’s current expectations, beliefs, assumptions and estimates regarding the company, industry, economic conditions, government regulations and energy policies and other factors. Forward-looking statements may include, for example, statements regarding the Board of Directors’ strategic evaluation process, the Company’s operational and financial priorities, the Company’s responses to the structural changes in the U.S. coal industry, the Company’s efforts to position the

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Company for future growth opportunities, and other statements regarding the Company’s plans, strategies, prospects and expectations concerning the Company’s business, operating results, financial condition, liquidity and other matters that do not relate strictly to historical facts. These statements are subject to significant risks, uncertainties, and assumptions that are difficult to predict and could cause actual results to differ materially and adversely from those expressed or implied in the forward-looking statements, including risks and uncertainties regarding the Company’s ability to continue as a going concern, the Company’s ability to successfully complete a sale process under Chapter 11; potential adverse effects of the Chapter 11 Cases on the Company’s liquidity and results of operations; the Company’s ability to obtain timely approval by the Court with respect to the motions filed in the Chapter 11 Cases; objections to the Company’s sale process or other pleadings filed that could protract the Chapter 11 Cases; employee attrition and the Company’s ability to retain senior management and other key personnel due to the distractions and uncertainties, including the Company’s ability to provide adequate compensation and benefits during the Chapter 11 Cases; the Company’s ability to comply with the restrictions imposed by the A/R Securitization Program, DIP Financing and other financing arrangements; the Company’s ability to maintain relationships with suppliers, customers, employees and other third parties and regulatory authorities as a result of the Chapter 11 filing; the effects of the Bankruptcy Petitions on the Company and on the interests of various constituents, including holders of the Company’s common stock; the Court’s rulings in the Chapter 11 Cases, and the outcome of the Chapter 11 Cases generally; the length of time that the Company will operate under Chapter 11 protection and the continued availability of operating capital during the pendency of the proceedings; risks associated with third party motions in the Chapter 11 Cases, which may interfere with the Company’s ability to consummate a sale; and increased administrative and legal costs related to the Chapter 11 process and other litigation and inherent risks involved in a bankruptcy process.  Forward-looking statements are also subject to the risk factors and cautionary language described from time to time in the reports and registration statements the Company files with the Securities and Exchange Commission, including those in Item 1A — Risk Factors in the Company’s most recent Form 10-K and any updates thereto in the Company’s Forms 10-Q and current reports on Form 8-K.  Additional factors, events, or uncertainties that may emerge from time to time, or those that the Company currently deems to be immaterial, could cause the Company’s actual results to differ, and it is not possible for the Company to predict all of them.  The Company makes forward-looking statements based on currently available information, and the Company assumes no obligation to, and expressly disclaim any obligation to, update or revise publicly any forward-looking statements made in this Report, whether as a result of new information, future events or otherwise, except as required by law.

Item 9.01Financial Statements and Exhibits

(d)   Exhibits.  The following exhibit is being furnished herewith.

Exhibit Number	Description
10.1	Second Amended and Restated Receivables Purchase Agreement, dated as of May 15, 2019, by and among Cloud Peak Energy Receivables LLC, Cloud Peak Energy Resources LLC, the various Conduit Purchasers, Related Committed Purchasers, LC Participants and Purchaser Agents from time to time party thereto, PNC Bank, National Association, as Administrator, and PNC Capital Markets LLC, as Structuring Agent
10.2	Superpriority Senior Secured Priming Debtor-in-Possession Credit Agreement, dated as of May 15, 2019, by and among Cloud Peak Energy Inc. and its subsidiaries party thereto, the lenders party thereto and Ankura Trust Company, LLC, as Administrative Agent and Collateral Agent
99.1	Furnished Press Release of Cloud Peak Energy Inc., dated May 14, 2019

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: May 17, 2019

CLOUD PEAK ENERGY INC.
By:	/s/ Bryan J. Pechersky
	Name:	Bryan J. Pechersky
	Title:	Executive Vice President, General Counsel and Corporate Secretary

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EX-10.1

Exhibit 10.1

EXECUTION VERSION

SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

dated as of May 15, 2019

among

CLOUD PEAK ENERGY RECEIVABLES LLC,
as Seller,

CLOUD PEAK ENERGY RESOURCES LLC,
a debtor and debtor-in-possession under
chapter 11 of the Bankruptcy Code, as initial Servicer,

THE VARIOUS CONDUIT PURCHASERS, RELATED COMMITTED PURCHASERS, LC PARTICIPANTS AND PURCHASER AGENTS FROM TIME TO TIME PARTY HERETO,

PNC BANK, NATIONAL ASSOCIATION,
as Administrator and as LC Bank,

and

PNC CAPITAL MARKETS LLC,

as Structuring Agent

TABLE OF CONTENTS

			Page
ARTICLE I	AMOUNTS AND TERMS OF THE PURCHASES		2
Section 1.1		Purchase Facility	2
Section 1.2		Making Purchases	4
Section 1.3		Purchased Interest Computation	5
Section 1.4		Settlement Procedures	6
Section 1.5		Fees	11
Section 1.6		Payments and Computations, Etc.	12
Section 1.7		Increased Costs	13
Section 1.8		Requirements of Law	14
Section 1.9		Funding Losses	15
Section 1.10		Taxes	15
Section 1.11		Inability to Determine Euro-Rate or LMIR	18
Section 1.12		Mitigation Obligations	19
Section 1.13		Extension of Termination Date	19
Section 1.14		Intended Tax Treatment	19
Section 1.15		Letters of Credit	20
Section 1.16		Issuance of Letters of Credit	20
Section 1.17		Requirements For Issuance of Letters of Credit	21
Section 1.18		Disbursements, Reimbursement	21
Section 1.19		Repayment of Participation Advances	22
Section 1.20		Documentation; Documentary and Processing Charges	23
Section 1.21		Determination to Honor Drawing Request	23
Section 1.22		Nature of Participation and Reimbursement Obligations	23
Section 1.23		[Reserved]	25
Section 1.24		Liability for Acts and Omissions	25
Section 1.25		Successor Euro-Rate or LMIR Index	26
ARTICLE II	REPRESENTATIONS AND WARRANTIES; COVENANTS; TERMINATION EVENTS		27
Section 2.1		Representations and Warranties; Covenants	27
Section 2.2		Termination Events	27
ARTICLE III	INDEMNIFICATION		28
Section 3.1		Indemnities by the Seller	28
Section 3.2		Indemnities by the Servicer	30
ARTICLE IV	ADMINISTRATION AND COLLECTIONS		31
Section 4.1		Appointment of the Servicer	31
Section 4.2		Duties of the Servicer	32
Section 4.3		Lock-Box Account and LC Collateral Account Arrangements	33
Section 4.4		Enforcement Rights	34
Section 4.5		Responsibilities of the Seller	35
Section 4.6		Servicing Fee	35

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TABLE OF CONTENTS

(continued)

			Page
ARTICLE V	THE AGENTS		36
Section 5.1		Appointment and Authorization	36
Section 5.2		Delegation of Duties	37
Section 5.3		Exculpatory Provisions	37
Section 5.4		Reliance by Agents	37
Section 5.5		Notice of Termination Events	38
Section 5.6		Non-Reliance on Administrator, Purchaser Agents and Other Purchasers	38
Section 5.7		Administrator, Purchasers, Purchaser Agents and Affiliates	39
Section 5.8		Indemnification	39
Section 5.9		Successor Administrator	39
Section 5.10		Structuring Agent	40
ARTICLE VI	MISCELLANEOUS		40
Section 6.1		Amendments, Etc.	40
Section 6.2		Notices, Etc.	41
Section 6.3		Successors and Assigns; Participations; Assignments	41
Section 6.4		Costs, Expenses and Taxes	43
Section 6.5		No Proceedings; Limitation on Payments	44
Section 6.6		GOVERNING LAW AND JURISDICTION	45
Section 6.7		Confidentiality	45
Section 6.8		Execution in Counterparts	46
Section 6.9		Survival of Termination	46
Section 6.10		WAIVER OF JURY TRIAL	46
Section 6.11		Sharing of Recoveries	46
Section 6.12		Right of Setoff	47
Section 6.13		Entire Agreement	47
Section 6.14		Headings	47
Section 6.15		Purchaser Groups’ Liabilities	47
Section 6.16		USA Patriot Act	47
Section 6.17		Severability	48
Section 6.18		Mutual Negotiations	48

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TABLE OF CONTENTS

(continued)

		Page
EXHIBIT I	Definitions
EXHIBIT II	Conditions of Purchases
EXHIBIT III	Representations and Warranties
EXHIBIT IV	Covenants
EXHIBIT V	Termination Events
SCHEDULE I	Credit and Collection Policy
SCHEDULE II	Lock-Box Banks and Lock-Box Accounts
SCHEDULE III	Trade Names
SCHEDULE IV	Mortgages
SCHEDULE V	Addresses for Notice
SCHEDULE VI	Group Commitments
ANNEX A	Form of Information Package
ANNEX B-1	Form of Purchase Notice
ANNEX B-2	Form of Issuance Notice
ANNEX C	Form of Assumption Agreement
ANNEX D	Form of Transfer Supplement
ANNEX E	Form of Paydown Notice
ANNEX F	Closing Memorandum
ANNEX G	Form of Compliance Certificate
ANNEX H	Form of Daily Report
ANNEX I	Form of Weekly Report
ANNEX J	Form of Letter of Credit Application
ANNEX K	Interim Order

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This SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) is entered into as of May 15, 2019, among CLOUD PEAK ENERGY RECEIVABLES LLC, a Delaware limited liability company, as seller (the “Seller”), CLOUD PEAK ENERGY RESOURCES LLC, a Delaware limited liability company and a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code (together with its successors and permitted assigns, “Cloud Peak”), as initial servicer (in such capacity, together with its successors and permitted assigns in such capacity, the “Servicer”), the various Conduit Purchasers, Related Committed Purchasers, LC Participants and Purchaser Agents (in each case, as defined herein) from time to time party hereto, PNC BANK, NATIONAL ASSOCIATION, as Administrator (in such capacity, together with its successors and assigns in such capacity, the “Administrator”) and as issuer of Letters of Credit (in such capacity, together with its successors and assigns in such capacity, the “LC Bank”), and PNC CAPITAL MARKETS LLC, a Pennsylvania limited liability company, as Structuring Agent.

PRELIMINARY STATEMENTS.  Certain terms that are capitalized and used throughout this Agreement are defined in Exhibit I.  References in the Exhibits, Schedules and Annexes hereto to the “Agreement” refer to this Agreement, as amended, supplemented or otherwise modified from time to time.

This Agreement amends and restates in its entirety, as of the Closing Date, the Amended and Restated Receivables Purchase Agreement, dated as of January 31, 2017 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Prior Agreement”), among each of the parties hereto (other than the Structuring Agent).  Upon the effectiveness of this Agreement, the terms and provisions of the Prior Agreement (including the provisions set forth in Section 2 of that certain Second Amendment to the Prior Agreement, dated as of May 10, 2019) shall, subject to this paragraph, be superseded hereby in their entirety.  Notwithstanding the amendment and restatement of the Prior Agreement by this Agreement, (i) the Seller and Servicer shall continue to be liable to PNC and any other Indemnified Party or Affected Person (as such terms are defined in the Prior Agreement) for fees and expenses which are accrued and unpaid under the Prior Agreement on the date hereof (collectively, the “Prior Agreement Outstanding Amounts”) and all agreements to indemnify such parties in connection with events or conditions arising or existing prior to the effective date of this Agreement, (ii) the undivided percentage ownership interests and security interest created under the Prior Agreement shall remain in full force and effect as security for such Prior Agreement Outstanding Amounts until such Prior Agreement Outstanding Amounts shall have been paid in full and (iii) Letters of Credit (as defined in the Prior Agreement) issued and outstanding pursuant to the Prior Agreement shall constitute Letters of Credit issued and outstanding hereunder.  Upon the effectiveness of this Agreement, each reference to the Prior Agreement in any other Transaction Document shall mean and be a reference to this Agreement.  Nothing contained herein, unless expressly herein stated to the contrary, is intended to amend, modify or otherwise affect any other instrument, document or agreement executed and/or delivered in connection with the Prior Agreement.

The Seller (i) desires to sell, transfer and assign an undivided variable percentage ownership interest in a pool of receivables, and the Purchasers desire to acquire such undivided variable percentage ownership interest, as such percentage interest shall be adjusted from time to

time based upon, in part, reinvestment payments that are made by such Purchasers and (ii) may, subject to the terms and conditions hereof, request that the LC Bank issue or cause the issuance of one or more Letters of Credit.

In consideration of the mutual agreements, provisions and covenants contained herein, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

AMOUNTS AND TERMS OF THE PURCHASES

Section 1.1            Purchase Facility.

(a)           On the terms and subject to the conditions hereof, the Seller may, from time to time before the Facility Termination Date, (i) request that the Purchasers ratably make Funded Purchases.  Each Funded Purchase shall be made ratably by the respective Purchaser Groups, and each Purchaser Group’s Ratable Share of each Funded Purchase shall be made and funded (x) if such Purchaser Group contains a Conduit Purchaser and such Conduit Purchaser elects (in its sole discretion) to make and fund such portion of such Funded Purchase, by such Conduit Purchaser, or (y) if such Purchaser Group does not contain a Conduit Purchaser or if the Conduit Purchaser in such Purchaser Group declines (in its sole discretion) to make or fund such portion of such Funded Purchase, by the Committed Purchaser in such Purchaser Group and (ii) request that the LC Bank issue or cause the issuance of Letters of Credit, in each case subject to the terms hereof (each such purchase, reinvestment or issuance is referred to herein as a “Purchase”).  Subject to Section 1.4(b) concerning reinvestments, at no time will a Conduit Purchaser have any obligation to make a Purchase.  Each Related Committed Purchaser severally hereby agrees, on the terms and subject to the conditions hereof, to make purchases of and reinvestments in undivided percentage ownership interests with regard to the Purchased Interest from the Seller from time to time from the Closing Date to (but excluding) the Facility Termination Date, based on the applicable Purchaser Group’s Group Commitment Percentage of each Purchase requested pursuant to Section 1.2(a) (and, in the case of each Related Committed Purchaser, its Commitment Percentage of its Purchaser Group’s Group Commitment Percentage of such Purchase) and, on the terms of and subject to the conditions hereof, the LC Bank hereby agrees to issue Letters of Credit in return for  (and each LC Participant hereby severally agrees to make participation advances in connection with any draws under such Letters of Credit equal to such LC Participant’s Pro Rata Share of such draws), undivided percentage ownership interests with regard to the Purchased Interest from the Seller from time to time from the date hereof to the Facility Termination Date.  Notwithstanding anything set forth in this Section 1.1(a) or otherwise herein to the contrary, under no circumstances shall any Purchaser make any purchase (including, without limitation, any Funded Purchase deemed requested by the Seller pursuant to Section 1.1(c) or 1.18(a)) or reinvestment or the LC Bank issue any Letters of Credit hereunder, as applicable, if, after giving effect to such Purchase:

(i)            any event has occurred and is continuing, or would result from such Purchase, that constitutes a Termination Event or an Unmatured Termination Event;

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(ii)           the aggregate outstanding Capital of such Purchaser, when added to all other Capital of all other Purchasers in such Purchaser’s Purchaser Group, would exceed (A) its Purchaser Group’s Group Commitment minus (B) the related LC Participant’s Pro Rata Share of the LC Participation Amount;

(iii)          (x) the Aggregate Capital plus the LC Participation Amount would exceed the Purchase Limit or (y) the LC Participation Amount would exceed the aggregate of the Commitments of the LC Participants; or

(iv)          the Purchased Interest would exceed 100%.

The Seller may, subject to this paragraph (a) and the other requirements and conditions herein, use the proceeds of any Purchase by the Purchasers hereunder to satisfy its Reimbursement Obligation to the LC Bank and the LC Participants (ratably, based on the outstanding amounts funded by  the LC Bank and each such LC Participant) pursuant to Section 1.18 below.

(b)           The Seller may, upon at least 10 days’ written notice to the Administrator and each Purchaser Agent, terminate the purchase facility provided hereunder in whole or reduce the Purchase Limit in whole or in part (but not below the amount that would cause the sum of the Aggregate Capital plus the LC Participation Amount to exceed the Purchase Limit or would cause the Group Capital of any Purchaser Group to exceed its Group Commitment, in either case, after giving effect to such reduction); provided that each partial reduction shall be in the amount of at least $5,000,000, or an integral multiple of $1,000,000 in excess thereof and that, unless terminated in whole, the Purchase Limit shall in no event be reduced below $15,000,000.  In connection with each such reduction of the Purchase Limit, the Commitment of each Purchaser and the Group Commitment of each Purchaser Group shall automatically be ratably reduced by a proportionate amount.  The Administrator shall advise the Purchaser Agents of any notice received by it pursuant to this Section 1.1(b); it being understood and agreed that no such termination of the purchase facility provided hereunder shall be effective unless and until (i) if any Letters of Credit are outstanding, the amount on deposit in the LC Collateral Account is at least equal to the aggregate undrawn face amount of such Letters of Credit plus all related fees to accrue through the stated expiration dates thereof (such fees to accrue, as reasonably estimated by the LC Bank, the “LC Fee Expectation”), (ii) the Aggregate Capital is reduced to zero and (iii) all other amounts then owed to the Administrator, the Purchaser Agents and the Purchasers under the Transaction Documents have been paid in full.

(c)           If there is a drawing under any Letter of Credit, the Seller shall, on the applicable Drawing Date, automatically (and without the requirement of any further action on the part of any Person hereunder) be deemed to have requested a new Purchase from the Conduit Purchasers or Committed Purchasers, as applicable, on such date, on the terms and subject to satisfaction of the conditions hereof (other than conditions with respect to notice and the minimum Purchase amount) in an aggregate amount equal to the amount of such drawing.  Subject to the limitations on funding set forth in paragraph (a) above (and the other requirements and conditions herein set forth (other than conditions with respect to notice and minimum Purchase amount)), the Conduit Purchasers or Committed Purchasers, as applicable, shall fund such Purchase so requested and deliver the proceeds thereof directly to the Administrator to be immediately distributed by the

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Administrator to the LC Bank.  If any of the conditions to the funding of such Purchase are not satisfied on the applicable Drawing Date (other than conditions with respect notice and the minimum Purchase amount), the Seller shall reimburse the LC Bank for the full amount of the drawing under such Letter of Credit (out of its own funds available therefor) in accordance with Section 1.18.

Section 1.2            Making Purchases.  (a) Each Funded Purchase (but not reinvestment) of undivided percentage ownership interests with regard to the Purchased Interest hereunder may be made on any day upon the Seller’s irrevocable written notice in the form of Annex B-1 (each, a “Purchase Notice”) delivered to the Administrator and each Purchaser Agent in accordance with Section 6.2 (which notice must be received by the Administrator and each Purchaser Agent before 2:00 p.m., New York City time) at least two Business Days before the requested Purchase Date, which notice shall specify: (A) solely in the case of a Funded Purchase, the amount requested to be paid to the Seller (which amount shall not be less than $200,000 (or such lesser amount as agreed to by the Administrator) and shall be in integral multiples of $100,000 in excess thereof) with respect to each Purchaser Group in connection with such Funded Purchase, (B) the date of such Funded Purchase (which shall be a Business Day) and (C) the pro forma calculation of the Purchased Interest after giving effect to the increase in the Aggregate Capital resulting from such Funded Purchase.

(b)           On the date of each Funded Purchase (but not reinvestment or issuance of a Letter of Credit) of undivided percentage ownership interests with regard to the Purchased Interest hereunder, each applicable Conduit Purchaser or Related Committed Purchaser, as the case may be, shall, upon satisfaction of the applicable conditions set forth in Exhibit II, make available to the Seller in same day funds, at such account as may be designated in writing by the Seller to the Administrator and each Purchaser Agent from time to time, an amount equal to the portion of Capital relating to the undivided percentage ownership interest then being funded by such Purchaser.

(c)           Effective on the date of each Purchase, the Seller hereby sells and assigns to the Administrator for the benefit of the Purchasers (ratably, based on the Purchasers’ respective outstanding Capital plus its share of the LC Participation Amount at such time after giving effect to such Purchase) an undivided percentage ownership interest in: (i) each Pool Receivable then existing, (ii) all Related Security with respect to such Pool Receivables, and (iii) all Collections with respect to, and other proceeds of, such Pool Receivables and Related Security.

(d)           To secure all of the Seller’s obligations (monetary or otherwise) under this Agreement and the other Transaction Documents to which it is a party, whether now or hereafter existing or arising, due or to become due, direct or indirect, absolute or contingent, the Seller hereby grants to the Administrator (for the benefit of the Secured Parties), a security interest in all of the Seller’s right, title and interest (including any undivided interest of the Seller) in, to and under all of the following, whether now or hereafter owned, existing or arising: (i) all Pool Receivables, (ii) all Related Security with respect to such Pool Receivables, (iii) all Collections with respect to such Pool Receivables, (iv) the Lock-Box Accounts and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such Lock-Box Accounts and amounts on deposit therein, (v) the LC Collateral Account and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such LC

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Collateral Account and amounts on deposit therein, (vi) all rights (but none of the obligations) of the Seller under the Purchase and Sale Agreement, (vii) all proceeds of, and all amounts received or receivable under any or all of, the foregoing and (viii) all of its other property (collectively, the “Pool Assets”).  The Seller hereby authorizes the Administrator to file financing statements naming the Seller as debtor or seller and describing as the collateral covered thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such wording may be broader in scope than the collateral described in this Agreement.  The Administrator (on behalf of the Secured Parties) shall have, with respect to the Pool Assets, and in addition to all the other rights and remedies available to the Administrator, the Purchasers and the Purchaser Agents, all the rights and remedies of a secured party under any applicable UCC.  The Seller hereby acknowledges and agrees that pursuant to the Prior Agreement, the Seller granted to the Administrator a security interest in all of the Seller’s right, title and interest in, to and under the Pool Assets (as defined in the Prior Agreement).  The Seller hereby confirms such security interest and acknowledges and agrees that such security interest is continuing and is supplemented and restated by the security interest granted by the Seller pursuant to this Section 1.2(d).

(e)           Each Related Committed Purchaser’s obligations hereunder shall be several, such that the failure of any Related Committed Purchaser to make a payment in connection with any Funded Purchase hereunder, shall not relieve any other Related Committed Purchaser of its obligation hereunder to make payment for any Funded Purchase. Further, in the event any Related Committed Purchaser fails to satisfy its obligation to make a Funded Purchase as required hereunder, upon receipt of notice of such failure from the Administrator (or any relevant Purchaser Agent), subject to the limitations set forth herein, the non-defaulting Related Committed Purchasers in such defaulting Related Committed Purchaser’s shall fund the defaulting Related Committed Purchaser’s Commitment Percentage of the related Funded Purchase pro rata in proportion to their relative remaining Commitment Percentages (determined without regard to the Commitment Percentage of the defaulting Related Committed Purchaser; it being understood that a defaulting Related Committed Purchaser’s Commitment Percentage of any Funded Purchase shall be first funded by the Related Committed Purchasers in such defaulting Related Committed Purchaser’s Purchaser Group and thereafter if there are no other Related Committed Purchasers in such Purchaser Group or if such other Related Committed Purchasers are also defaulting Related Committed Purchasers, then such defaulting Related Committed Purchaser’s Commitment Percentage of such Funded Purchase shall be funded by each other Purchaser Group ratably and applied in accordance with this paragraph (e)). Notwithstanding anything in this paragraph (e) to the contrary, no Related Committed Purchaser shall be required to make a Funded Purchase pursuant to this paragraph for an amount which would cause the aggregate Capital of such Related Committed Purchaser (after giving effect to such Funded Purchase) to exceed its Commitment.

Section 1.3            Purchased Interest Computation.  The Purchased Interest shall be initially computed on the Closing Date.  Thereafter, until the Facility Termination Date, the Purchased Interest shall be automatically recomputed (or deemed to be recomputed) on each Business Day other than a Termination Day.  On each Termination Day, the Purchased Interest shall be deemed to be 100%. The Purchased Interest shall become zero on the Final Payout Date.

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Section 1.4            Settlement Procedures.

(a)           The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.

(b)           The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer in accordance with this Agreement, including Section 1.4(g):

(i)            set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of the Secured Parties, out of such Collections, an amount equal to the sum of (i) the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (ii) an amount equal to the Fees accrued and unpaid through such day and (iii) an amount equal to the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;

(ii)           subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller by wire transfer of immediately available funds to the Seller, ratably, on behalf of the Purchasers, the remainder of such Collections.  Such remainder shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested, ratably according to each Purchaser’s Capital, in Pool Receivables and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if, after giving effect to any such reinvestment, (x) the Purchased Interest would exceed 100%, or (y) the sum of the Aggregate Capital plus the LC Participation Amount would exceed the Purchase Limit then in effect, then the Servicer shall not remit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Secured Parties) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100% or cause the sum of the Aggregate Capital plus the LC Participation Amount not to exceed the Purchase Limit, as the case may be (determined as if such Collections set aside had been applied to reduce the Aggregate Capital or LC Participation Amount, as applicable, at such time), which amount shall either (x) be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers) for distribution and application or (y) be deposited in the LC Collateral Account, in each case, as applicable, on the next Settlement Date in accordance with Sections 1.4(c) and (d); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.13, to extend the then-scheduled Facility Termination Date hereunder (an “Exiting Purchaser”)

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then in either case set forth in subclauses (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;

(iii)          if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust for the benefit of the Secured Parties (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) the entire remainder of such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); and

(iv)          release to the Seller (subject to Section 1.4(f)), by wire transfer of immediately available funds for its own account, any Collections in excess of:  (w) amounts required to be reinvested in accordance with clause (ii) plus (x) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.

(c)           On each Settlement Date, the Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the account specified by each Purchaser Agent Collections held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Section 1.4(b)(i) or 1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Sections 1.4(b)(ii) and 1.4(b)(iii); provided, that if Cloud Peak or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Cloud Peak (or such Affiliate) that such right is revoked, Cloud Peak (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of the Purchasers’ Share of the Servicing Fee.  Not later than 1 Business Day prior to each Settlement Date, each Purchaser Agent will notify the Servicer by electronic mail of the amount of Discount accrued with respect to each Portion of Capital during the related Settlement Period.

(d)           The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:

(i)            if such distribution occurs on a day that is not a Termination Day:

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(A)          first, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate Purchasers’ Share of the accrued Servicing Fees so set aside; and

(B)          second,  to each Purchaser Agent ratably according to the Discount and Fees accrued during such Settlement Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Capital maintained by such Purchasers and all such accrued Fees owing to such Purchasers and their respective related Secured Parties; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers and related Secured Parties within its Purchaser Group ratably according to Discount and Fees, respectively; and

(ii)           if such distribution occurs on a Termination Day:

(A)          first, to the Servicer (if the Servicer is not Cloud Peak of an Affiliate thereof), in payment in full of the Purchasers’ Share of all accrued Servicing Fees;

(B)          second to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers and their respective related Secured Parties at such time) (for the benefit of the relevant Purchasers and related Secured Parties in such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees;

(C)          third to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital; it being understood that each Purchaser Agent shall distribute the amounts described in the first, second and third clauses of this Section 1.4(d)(ii) to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount, Fees and Capital, respectively;

(D)          fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account (other than amount representing LC Fee Expectation) equals 100% of the LC Participation Amount (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount) and (y) if such day is a Termination Day of the type described in clause (b) of the definition thereof or a Termination Event is continuing, an amount

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equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Account);

(E)           fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the aggregate of the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer have been paid in full, to each Purchaser Agent ratably, based on the remaining amounts, if any, payable to each Purchaser in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder; and

(F)           sixth, to the Servicer (if the Servicer is Cloud Peak or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees.

After the Aggregate Capital, Aggregate Discount, Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and after an amount equal to 100% of the LC Participation Amount and the LC Fee Expectation is on deposit in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller by wire transfer of immediately available funds for its own account.

(e)           For the purposes of this Section 1.4:

(i)            if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall (i) if such day is not a Termination Day, hold any and all such amounts in trust for the benefit of the Purchasers and their assigns and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (ii) if such day is a Termination Day, promptly, and in any event within one Business Day, pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Secured Parties pursuant to Section 1.4;

(ii)           if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay the amount of such deemed Collection to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Secured Parties and for application pursuant to this Section 1.4 (Collections deemed to have been

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received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);

(iii)          except as provided in clause (i) or (ii) otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables;

(iv)          if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and

(v)           if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collections, so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account or hold such amount in trust and apply it in accordance with this Section 1.4, as the case may be, by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%.

(f)            If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:

(i)            the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) at least two Business Days prior to the date of such reduction and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;

(ii)           on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and

(iii)          the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Settlement Date (or such other date as agreed to by the Administrator and Seller) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Settlement Period, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its

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related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid;

provided, that:

(A)the amount of any such reduction shall be not less than $100,000 for each Purchaser Group and shall be an integral multiple of $100,000 in excess thereof, and unless reduced to zero, the entire Aggregate Capital after giving effect to such reduction shall be not less than $1,000,000; and

(B)with respect to any Portion of Capital, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Settlement Period.

(g)The Servicer shall deliver a Daily Report to the Administrator on any Business Day when the Administrator is then exercising exclusive dominion and control over the Lock-Box Accounts.  Upon receipt of such Daily Report, the Administrator shall promptly review such Daily Report to determine if such Daily Report constitutes a Qualifying Interim Report.  In the event that the Administrator reasonably determines that such Daily Report constitutes a Qualifying Interim Report, so long as no Termination Event or Unmatured Termination Event has occurred, the Administrator shall promptly remit to the Servicer from the Lock-Box Accounts (or the LC Collateral Account, if applicable) the lesser of (i) the amount identified on such Qualifying Interim Report as Collections on deposit in the Lock-Box Accounts and/or LC Collateral Account in excess of the amount necessary to (x) ensure that the Purchased Interest does not exceed 100% and (y) pay all amounts that will become payable (as estimated by the Administrator) on the next occurring Settlement Date pursuant to Sections 1.4(c) and (d), and (ii) the aggregate amount of available amounts then on deposit in the Lock-Box Accounts and the LC Collateral Account.

Section 1.5Fees.

(a)The Seller shall pay to the Administrator, LC Bank, Structuring Agent, Purchaser Agents and Purchasers certain fees in the amounts and on the dates set forth in one or more fee letter agreements, in each case entered into from time to time by and among the Seller, (the Servicer if applicable) and the applicable Purchaser Agent and/or the Administrator (as any such fee letter agreement may be amended, restated, supplemented or otherwise modified from time to time, each, a “Fee Letter”).

(b)In consideration of the facility provided pursuant to this Agreement, the Seller hereby agrees to pay the following fees:

(i)to each Purchaser Agent, a “Commitment Fee” for each day in an amount equal to the product of (i) 75 basis points, multiplied by (ii) the excess, if any, of (A) such Purchaser Group’s Group Commitment on such day, over (B) the sum of (1) the aggregate outstanding Capital of all Purchasers in such Purchaser Group on such day, plus (2) the Pro Rata Share of the LC Participation Amount of all LC Participants in such Purchaser Group on such day, multiplied by (iii) 1/360, which Commitment Fee shall accrue on each day from the Closing Date to (but excluding) the Final Payout Date, and

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Commitment Fees accrued during any Settlement Period shall be due and payable in arrears on the first Settlement Date following such Settlement Period; provided that all accrued and unpaid Commitment Fees shall be due and payable on the Final Payout Date;

(ii)to each Purchaser Agent, a “Drawn Fee” for each day in an amount equal to the product of (i) 300 basis points, multiplied by (ii) the aggregate outstanding Capital of all Purchasers in such Purchaser Group on such day, multiplied by (iii) 1/360, which Drawn Fee shall accrue on each day from the Closing Date to (but excluding) the Final Payout Date, and Drawn Fees accrued during any Settlement Period shall be due and payable in arrears on the first Settlement Date following such Settlement Period; provided that all accrued and unpaid Drawn Fees shall be due and payable on the Final Payout Date;

(iii)to each Purchaser Agent, an “LC Participation Fee” for each day in an amount equal to the product of (i) 300 basis points, multiplied by (ii) the Pro Rata Share of the LC Participation Amount of all LC Participants in such Purchaser Group on such day, multiplied by (iii) 1/360, which LC Participation Fee shall accrue on each day from the Closing Date to (but excluding) the Final Payout Date, and LC Participation Fees accrued during any Settlement Period shall be due and payable in arrears on the first Settlement Date following such Settlement Period; provided that all accrued and unpaid LC Participation Fees shall be due and payable on the Final Payout Date;

(iv)to each Purchaser Agent, a “Default LC Participation Fee” (which, for the avoidance of doubt, is in addition to the LC Participant Fee) for each day while a Termination Event exists, equal to the product of (i) 2.00% (200 basis points), multiplied by (ii) the Pro Rata Share of the LC Participation Amount of all LC Participants in such Purchaser Group on such day, multiplied by (iii) 1/360, which Default LC Participation Fee shall accrue on each day while a Termination Event exists from the Closing Date until the Final Payout Date and shall be payable in arrears on each Settlement Date for the prior Settlement Period and on the Final Payout Date; and

Section 1.6Payments and Computations, Etc.

(a)All amounts to be paid or deposited by the Seller or the Servicer hereunder or under any other Transaction Document shall be made without reduction for offset or counterclaim and shall be paid or deposited no later than 3:00 p.m. (New York City time) on the day when due in same day funds to the account for each Purchaser maintained by the applicable Purchaser Agent (or such other account as may be designated from time to time by such Purchaser Agent to the Seller and the Servicer).  All amounts received after 3:00 p.m. (New York City time) will be deemed to have been received on the next Business Day. Except as expressly set forth herein, each Purchaser Agent shall distribute the amounts paid to it hereunder for the benefit of the Purchasers in its Purchaser Group to the Purchasers within its Purchaser Group ratably (x) in the case of such amounts paid in respect of Discount and Fees, according to the Discount and Fees payable to such Purchasers and (y) in the case of such amounts paid in respect of Capital (or in respect of any other obligations other than Discount and Fees), according to the outstanding Capital funded by such Purchasers.

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(b)The Seller or the Servicer, as the case may be, shall, to the extent permitted by law, pay interest on any amount not paid or deposited by the Seller or the Servicer, as the case may be, when due hereunder, at an interest rate per annum equal to the sum of 2.00% per annum plus the greater of the Base Rate at such time and the Euro-Rate or LMIR (as applicable to such Purchaser pursuant to the definition of the Alternate Rate) at such time, payable on demand.

(c)All computations of interest under Section 1.6(b) and all computations of Discount, Fees and other amounts hereunder shall be made on the basis of a year of 360 (or 365 or 366, as applicable, with respect to Discount or other amounts calculated by reference to the Base Rate) days for the actual number of days elapsed. Whenever any payment or deposit to be made hereunder shall be due on a day other than a Business Day, such payment or deposit shall be made on the next Business Day and such extension of time shall be included in the computation of such payment or deposit.

Section 1.7Increased Costs.  (a) If after the Initial Closing Date the Administrator, any Purchaser Agent, any Purchaser, any Liquidity Provider or any other Program Support Provider or any of their respective Affiliates (each an “Affected Person”) reasonably determines that any Change in Law affects or would affect the amount of capital required or expected to be maintained by such Affected Person, and such Affected Person determines that the amount of such capital is increased by or based upon the existence of any commitment to make purchases of (or otherwise to maintain the investment in) Pool Receivables or to issue or maintain any such Letter of Credit or any related liquidity facility, credit enhancement facility and other commitments of the same type, then, upon demand by such Affected Person or its related Purchaser Agent (with a copy to the Administrator), the Seller shall promptly pay to the related Purchaser Agent, for the account of such Affected Person, from time to time as specified by such Affected Person or its related Purchaser Agent, additional amounts sufficient to compensate such Affected Person for such increased costs in the light of such circumstances, to the extent that such Affected Person reasonably determines such increase in capital to be allocable to the existence of any of such commitments.

(b)If due to any Change in Law, there shall be any increase after the Initial Closing Date in the cost to any Affected Person of agreeing to purchase or purchasing, or maintaining the ownership of, the Purchased Interest (or its portion thereof and including, without limitation, funding or maintaining its Capital or issuing or maintaining any Letter of Credit), then, upon demand by such Affected Person, the Seller shall promptly pay to such Affected Person, from time to time as specified by such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs.

(c)A certificate of an Affected Person (or its related Purchaser Agent) setting forth the amount or amounts necessary to compensate such Affected Person as specified in clause (a) or (b) of this Section and delivered to the Seller and the Administrator, shall be conclusive absent manifest error.  The Seller shall pay such Affected Person’s related Purchaser Agent (for the account of such Affected Person) the amount shown as due on the first Settlement Date occurring after the Seller’s receipt of such certificate.

(d)Failure or delay on the part of any Affected Person to demand compensation pursuant to this Section 1.7 shall not constitute a waiver of such Affected Person’s right to

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demand such compensation; provided that the Seller shall not be required to compensate an Affected Person pursuant to this Section for any increased costs or reductions incurred more than 270 days prior to the date that such Affected Person, notifies the Seller of the Change in Law giving rise to such increased costs or reductions and of such Affected Person’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.

Section 1.8Requirements of Law.  (a) If, after the date hereof, any Affected Person determines that any Change in Law:

(i)does or shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, or deposits or other liabilities in or for the account of, purchases, advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Affected Person that are not otherwise included in the determination of the Euro-Rate or LMIR hereunder; or

(ii)does or shall impose on such Affected Person any other condition;

and the result of any of the foregoing is: (A) to increase the cost to such Affected Person of acting as Administrator or as a Purchaser Agent, agreeing to purchase or purchasing or maintaining the ownership of undivided percentage ownership interests with regard to the Purchased Interest (or interests therein), any Portion of Capital or any Letter of Credit, or (B) to reduce any amount receivable hereunder (whether directly or indirectly), then, in any such case, upon demand by such Affected Person, the Seller shall promptly pay to such Affected Person additional amounts necessary to compensate such Affected Person for such additional cost or reduced amount receivable.  All such amounts shall be payable as incurred.  A certificate as to such amounts submitted to the Seller and the Administrator by such Affected Person shall be conclusive and binding for all purposes, absent manifest error.

(b)A certificate of an Affected Person (or its related Purchaser Agent) setting forth the amount or amounts necessary to compensate such Affected Person as specified in clause (a) of this Section and delivered to the Seller and the Administrator, shall be conclusive absent manifest error.  The Seller shall pay such Affected Person’s related Purchaser Agent (for the account of such Affected Person) the amount shown as due on each Settlement Date occurring after the Seller’s receipt of such certificate.

(c)Failure or delay on the part of any Affected Person to demand compensation pursuant to this Section 1.8 shall not constitute a waiver of such Affected Person’s right to demand such compensation; provided that the Seller shall not be required to compensate an Affected Person pursuant to this Section for any increased costs or reductions incurred more than 270 days prior to the date that such Affected Person, notifies the Seller of the Change in Law giving rise to such increased costs or reductions and of such Affected Person’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.

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Section 1.9Funding Losses.

(a)The Seller will compensate each Purchaser in accordance with the terms of this Section 1.8 for all losses, expenses and liabilities (including any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Purchaser in order to fund or maintain any Portion of Capital hereunder, but expressly excluding any foregone Drawn Fees (as defined in Section 1.5(b)(ii))) as a result of (i) any repayment (in whole or in part) of any Portion of Capital of such Purchaser on any day other than a Settlement Date or (ii) any Funded Purchase not being completed by the Seller in accordance with its request therefor pursuant to Section 1.2.  Such losses, expenses and liabilities will include the amount, if any, by which (A) the additional Discount that would have accrued had such repayment or failure to Purchase not have occurred, exceeds (B) the income, if any, received by the applicable Purchaser.

(b)A certificate of a Purchaser (or its related Purchaser Agent) setting forth the amount or amounts necessary to compensate such Purchaser as specified in clause (a) of this Section and delivered to the Seller and the Administrator, shall be conclusive absent manifest error.  The Seller shall pay such Purchaser’s related Purchaser Agent (for the account of such Purchaser) the amount shown as due on each Settlement Date occurring after the Seller’s receipt of such certificate.

Section 1.10Taxes.  The Seller agrees that:

(a)Any and all payments by the Seller under this Agreement and any other Transaction Document shall be made free and clear of and without deduction for any Taxes or Other Taxes; provided, however, that such payments shall exclude (i) overall income, franchise or branch profits taxes, in either case, imposed on the Person receiving such payment by the Seller hereunder by the jurisdiction under whose laws such Person is organized, the jurisdiction of such Person’s principal place of business or the jurisdiction in which such Person holds its undivided percentage ownership interest in the Purchased Interest, or any political subdivision thereof, (ii) any U.S. Federal withholding tax imposed on amounts payable to or for the account of such Person with respect to the Purchased Interest pursuant to a law in effect on the date on which (x) such Person acquires such interest in the Purchased Interest or (y) such Person changes its office through which it owns the Purchased Interest, except in each case to the extent that, pursuant to Section 1.10, amounts with respect to such Taxes were payable either to such Person’s assignor immediately before such Person became a party hereto or to such Person immediately before it changed its office through which it owns such interest in the Purchased Interest,  and (iii) any withholding tax imposed by FATCA (all such Taxes described in clauses (i), (ii) and (iii) shall be referred to as “Excluded Taxes” and all such Taxes imposed on payments by the Seller under this Agreement and any other Transaction Document,other than Excluded Taxes,  shall hereinafter be referred to as “Indemnified Taxes”).  If the Seller shall be required by law to deduct any Indemnified Taxes from or in respect of any sum payable hereunder to any Purchaser, any Liquidity Provider, Program Support Provider or the Administrator, then the sum payable shall be increased by the amount necessary to yield to such Person (after payment of all Indemnified Taxes) an amount equal to the sum it would have received had no such deductions been made.

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(b)Whenever any Indemnified Taxes are payable by the Seller, as promptly as possible thereafter, the Seller shall send to the Administrator for its own account or for the account of any Purchaser or any Liquidity Provider or other Program Support Provider, as the case may be, a certified copy of an original official receipt showing payment thereof or such other evidence of such payment as may be available to the Seller and acceptable to the taxing authorities having jurisdiction over such Person.  If the Seller fails to pay any Indemnified Taxes when due to the appropriate taxing authority or fails to remit to the Administrator the required receipts or other required documentary evidence, the Seller shall indemnify the Administrator and/or any other Affected Person, as applicable, for any incremental Taxes, interest or penalties that may become payable by such party as a result of any such failure.

(c)The Seller shall indemnify each Affected Person within ten Business Days after written demand therefor, for the full amount of any Indemnified Taxes paid by such  Affected Person on or with respect to any payment by or on account of any obligation of the Seller hereunder (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 1.10) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  None of Sections 1.7, 1.8, 3.1, 3.2 or 6.4(a) shall apply to Taxes, which shall be governed exclusively by this Section 1.10.

(d)If an Affected Person requests indemnification or repayment under this Section 1.10, a certificate describing such amounts shall be submitted to the Seller and the applicable Purchaser Agent by such Affected Person and shall be conclusive and binding for all purposes, absent manifest error.

(e)(i) Any Affected Person that is entitled to an exemption from or reduction of withholding tax with respect to payments under this Agreement shall deliver to the Seller and the Administrator, at the time or times reasonably requested by the Seller or the Administrator, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Seller or the Administrator as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any  Affected Person, if reasonably requested by the Seller or the Administrator, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Seller or the Administrator as will enable the Seller or the Administrator to determine whether or not such Affected Person is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation required to be delivered by the applicable Affected Person pursuant to the terms of clause (ii) below) shall not be required if in such Affected Person’s reasonable judgment such completion, execution or submission would subject such Affected Person to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Affected Person.

(ii) Without limiting the generality of the foregoing, each Affected Person shall deliver to the Seller and the Administrator on or prior to the date on which such Affected Person, becomes a party to this Agreement (and from time to time thereafter upon the expiration or invalidity of any of the certificates or IRS forms described below or upon the request of the Seller or the Administrator), two (2) original copies of whichever of the following is applicable:

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(A)duly completed and executed IRS Form W-8BEN-E or IRS Form W-8BEN, as applicable (or successor form) establishing eligibility for benefits of an income tax treaty to which the United States is a party or that such party is not subject to deduction or withholding of United States federal income tax,

(B) duly completed and executed IRS Form W-8ECI (or successor form), establishing that such party is not subject to deduction or withholding of United States federal income tax,

(C) in the case of a party claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) duly executed certificate to the effect that such Affected Person is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Seller within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code, and (y) duly completed and executed IRS Form W-8BEN-E or IRS Form W-8BEN, as applicable (or successor form),

(D) duly completed and executed IRS Form W-8IMY (or successor form), accompanied by appropriate attachments from each beneficial owners that either (a) satisfies one of the clauses (A) through (C) above, or (b) is a duly completed and executed IRS Form W-9 (or successor form), or

(E) IRS Form W-9 (or successor form), establishing that such party is not subject to backup withholding or information reporting requirements.

Notwithstanding any other provisions of this paragraph, any Affected Person shall not be required to deliver any form or certificate pursuant to this subparagraph (ii) that such Affected Person, is not legally able to deliver.

(iii) If a payment made to a Affected Person under any Transaction Document would be subject to U.S. Federal income withholding tax imposed by FATCA, such Affected Person shall deliver to Seller and the Administrator, at the time or times prescribed by law and at such time or times reasonably requested by Seller or the Administrator, such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by Seller or the Administrator as may be necessary for Seller and the Administrator to comply with their obligations under FATCA and to determine that such Affected Person has complied with such Affected Person’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the Initial Closing Date.

(f)If an Affected Person determines, in its reasonable discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Seller or with respect to which the Seller has paid additional amounts pursuant to this Section 1.10, it shall pay over such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller under this Section 1.10 with respect to the Taxes or Other Taxes

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giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes) of the Affected Person, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Seller, upon the request of such Affected Person, agrees to repay the amount paid over to the Seller (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Affected Person in the event such Affected Person is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this clause (f), in no event will any Affected Person be required to pay any amount to the Seller pursuant to this clause (f) the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.  This Section 1.10 shall not be construed to require any Affected Person to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Seller or any other Person.

Section 1.11Inability to Determine Euro-Rate or LMIR. (a)  If the Administrator (or any Purchaser Agent) determines before the first day of any Settlement Period (or solely with respect to LMIR, on any day) (which determination shall be final and conclusive) that, by reason of circumstances affecting the interbank eurodollar market generally, (i) deposits in dollars (in the relevant amounts for such Settlement Period) are not being offered to banks in the interbank eurodollar market for such Settlement Period, (ii) adequate means do not exist for ascertaining the Euro-Rate or LMIR for such Settlement Period (or portion thereof) or (iii) the Euro-Rate or LMIR does not accurately reflect the cost to any Purchaser (as determined by the related Purchaser or the applicable Purchaser Agent) of maintaining any Portion of Capital during such Settlement Period (or portion thereof), then the Administrator shall give notice thereof to the Seller.  Thereafter, until the Administrator or such Purchaser Agent notifies the Seller that the circumstances giving rise to such suspension no longer exist, (a) no Portion of Capital shall be funded at the Alternate Rate determined by reference to the Euro-Rate or LMIR and (b) the Discount for any outstanding Portions of Capital then funded at the Alternate Rate determined by reference to the Euro-Rate or LMIR shall, on the last day of the then current Settlement Period (or solely with respect to LMIR, immediately), be converted to the Alternate Rate determined by reference to the Base Rate.

(b)If, on or before the first day of any Settlement Period (or solely with respect to LMIR, on any day), the Administrator shall have been notified by any Affected Person that such Affected Person has determined (which determination shall be final and conclusive) that any Change in Law, or compliance by such Affected Person with any Change in Law, shall make it unlawful or impossible for such Affected Person to fund or maintain any Portion of Capital at the Alternate Rate and based upon the Euro-Rate or LMIR, the Administrator shall notify the Seller thereof.  Upon receipt of such notice, until the Administrator notifies the Seller that the circumstances giving rise to such determination no longer apply, (a) no Portion of Capital shall be funded at the Alternate Rate determined by reference to the Euro-Rate or LMIR and (b) the Discount for any outstanding Portions of Capital then funded at the Alternate Rate determined by reference to the Euro-Rate or LMIR shall be converted to the Alternate Rate determined by reference to the Base Rate either (i) on the last day of the then current Settlement Period (or solely with respect to LMIR, immediately) if such Affected Person may lawfully continue to maintain such Portion of Capital at the Alternate Rate determined by reference to the Euro-Rate or LMIR to such day, or (ii) immediately, if such Affected Person may not lawfully continue to

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maintain such Portion of Capital at the Alternate Rate determined by reference to the Euro-Rate or LMIR to such day.

Section 1.12Mitigation Obligations.

If any Purchaser requests compensation under Sections 1.7 or 1.8, or if the Seller is required to pay any additional amount to any Purchaser or any Governmental Authority for the account of any Purchaser pursuant to Section 1.10, then such Purchaser shall use reasonable efforts to designate a different lending office for funding or booking its Purchases hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Purchaser, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Sections 1.7, 1.8 or 1.10, as the case may be, in the future and (ii) would not subject such Purchaser to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Purchaser.  The Seller hereby agrees to pay all reasonable costs and expenses incurred by any Purchaser in connection with any such designation or assignment.

Section 1.13Extension of Termination Date.

Provided that no Termination Event or Unmatured Termination Event has occurred and is continuing, the Seller may request, in a written notice given to the Administrator and each Purchaser Agent not less than 60 days and not more than 120 days prior to the then current Facility Termination Date, that the date set forth in clause (a) of the then-current definition of “Facility Termination Date” be extended to the date that is 364 days after such then-current date.  In the event that the Purchasers are all agreeable to such extension, the Administrator shall so notify the Seller and the Servicer in writing (it being understood that the Purchasers may accept or decline such a request in their sole discretion and on such terms as they may elect) not less than 30 days prior to the then current Facility Termination Date and the Seller, the Servicer, the Administrator, the Purchaser Agents and the Purchasers shall enter into such documents as the Purchasers may deem necessary or appropriate to reflect such extension, and all reasonable costs and expenses incurred by the Purchasers, the Administrator and the Purchaser Agents in connection therewith (including reasonable Attorney Costs) shall be paid by the Seller.  In the event any Purchaser declines the request for such extension, such Purchaser (or the applicable Purchaser Agent on its behalf) shall so notify the Administrator and the Administrator shall so notify the Seller of such determination; provided, that the failure of the Administrator to notify the Seller of the determination to decline such extension shall not affect the understanding and agreement that the applicable Purchasers shall be deemed to have refused to grant the requested extension in the event the Administrator fails to affirmatively notify the Seller, in writing, of their agreement to accept the requested extension.

Section 1.14Intended Tax Treatment.  All parties to this Agreement covenant and agree to treat any Purchase under this Agreement as debt for all federal income tax purposes (the “Intended Tax Treatment”). All parties to this Agreement agree not to take any position on any tax return inconsistent with the Intended Tax Treatment.

Section 1.15Letters of Credit.  Subject to the terms and conditions hereof and the satisfaction of the applicable conditions set forth in Exhibit II, the LC Bank shall issue or cause the issuance of Letters of Credit (“Letters of Credit”) on behalf of the Seller, an Originator or an

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Affiliate of an Originator which is (x) a wholly owned Subsidiary of Cloud Peak and (y) acceptable to the applicable LC Bank in its sole discretion in favor of such beneficiaries as the Seller may approve); provided, however, that, for the avoidance of doubt, the LC Bank’s obligation to issue a Letter of Credit  shall be subject in all respects to the limitations set forth in Section 1.1(a).  Discount shall accrue on all amounts drawn under Letters of Credit for each day on and after the applicable Drawing Date so long as such drawn amounts shall have not been reimbursed to the LC Bank pursuant to the terms hereof.  Letters of Credit that have not been drawn upon shall not accrue Discount.

Section 1.16Issuance of Letters of Credit.

(a)The Seller may request the LC Bank, upon two (2) Business Days’ prior written notice submitted on or before 1:00 p.m., New York time, to issue a Letter of Credit by delivering to the Administrator a letter of credit application (the “Letter of Credit Application”), substantially in the form of Annex J attached hereto and an Issuance Notice, substantially in the form of Annex B-2 (each, an “Issuance Notice”), in each case completed to the satisfaction of the Administrator and the LC Bank; and, such other certificates, documents and other papers and information as the Administrator and LC Bank may reasonably request.  The Seller also has the right to give instructions and make agreements with respect to any Letter of Credit Application and the disposition of documents, and to agree with the Administrator upon any amendment, extension or renewal of any Letter of Credit.

(b)Each Letter of Credit shall (i) provide for the payment of sight drafts or other written demands for payment when presented for honor thereunder in accordance with the terms thereof and when accompanied by the documents described therein and (ii) have an expiry date not later than twelve (12) months after such Letter of Credit’s date of issuance, extension or renewal, as the case may be, and in no event later than twelve (12) months after the date in clause (a) of the definition of “Facility Termination Date”.  The terms of each Letter of Credit may include customary “evergreen” provisions providing that such Letter of Credit’s expiry date shall automatically be extended for additional periods not to exceed twelve (12) months unless, not less than thirty (30) days (or such longer period as may be specified in such Letter of Credit) (the “Notice Date”) prior to the applicable expiry date, the LC Bank delivers written notice to the beneficiary thereof declining such extension; provided, however, that if (x) any such extension would cause the expiry date of such Letter of Credit to occur after the date that is twelve (12) months after the date in clause (a) of the definition of “Facility Termination Date” or (y) the LC Bank determines that any condition precedent (including, without limitation, those set forth in Section 1.1(a) or Exhibit II) to issuing such Letter of Credit hereunder is not satisfied (other than any such condition requiring the Seller to submit an Issuance Notice or Letter of Credit Application in respect thereof), then the LC Bank, in the case of clause (x) above, may (or at the written direction of any LC Participant, shall) or, in the case of clause (y) above, shall, use reasonable efforts in accordance with (and to the extent permitted by) the terms of such Letter of Credit to prevent the extension of such expiry date (including notifying the Seller and the beneficiary of such Letter of Credit in writing prior to the Notice Date that such expiry date will not be so extended).  Each Letter of Credit shall be subject either to the Uniform Customs and Practice for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600, and any amendments or revisions thereof adhered to by the LC Bank or the International Standby Practices (ISP98-International Chamber of Commerce Publication Number

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590), and any amendments or revisions thereof adhered to by the LC Bank, as determined by the LC Bank.

(c)Immediately upon the issuance by the LC Bank of any Letter of Credit (or any amendment to a Letter of Credit increasing the amount thereof), the LC Bank shall be deemed to have sold and transferred to each LC Participant, and each LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from the LC Bank, without recourse or warranty, an undivided interest and participation, to the extent of such LC Participant’s Pro Rata Share, in such Letter of Credit, each drawing made thereunder and the obligations of the Seller hereunder with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Commitments or Pro Rata Shares of the LC Participants pursuant to this Agreement, it is hereby agreed that, with respect to all outstanding Letters of Credit and unreimbursed drawings thereunder, there shall be an automatic adjustment to the participations pursuant to this Section 1.16(c) to reflect the new Pro Rata Shares of the assignor and assignee LC Participant or of all LC Participants with Commitments, as the case may be.  In the event that the LC Bank makes any payment under any Letter of Credit and the Seller shall not have reimbursed such amount in full to the LC Bank pursuant to Section 1.18(a), each LC Participant shall be obligated to make Participation Advances with respect to such Letter of Credit in accordance with Section 1.18(b).

Section 1.17Requirements For Issuance of Letters of Credit.  The Seller hereby authorizes and directs the LC Bank to name the Seller, an Originator or an Affiliate of an Originator for whose benefit a Letter of Credit has been issued in accordance with Section 1.15 as the “Applicant” or “Account Party” of such Letter of Credit.

Section 1.18Disbursements, Reimbursement.

(a)In the event of any request for a drawing under a Letter of Credit by the beneficiary or transferee thereof, the LC Bank will promptly notify the Administrator, each Purchaser Agent and the Seller of such request and of any funding thereunder. On the date that an amount is paid by the LC Bank under any Letter of Credit (each such date, a “Drawing Date”), the Seller shall be deemed to have requested that a Funded Purchase in an amount equal to the amount so paid by the LC Bank be made by the Purchasers in the Purchaser Group for the LC Bank and the LC Participants to be disbursed on the Drawing Date under such Letter of Credit in accordance with Section 1.1(c).  In the event that the conditions precedent to making a Purchase are satisfied on such Drawing Date, the applicable Purchasers shall make a Funded Purchase in accordance with (and subject to the terms of) Section 1.1(c). The proceeds of each such Funded Purchase shall be delivered directly to the Administrator to be immediately distributed by the Administrator to the LC Bank.

(b)If any Funded Purchase described in the preceding clause (a) cannot be made because the conditions precedent to such Purchase are not satisfied, the Seller shall (out of its own funds available therefor) reimburse the LC Bank (such obligation to reimburse the LC Bank, a “Reimbursement Obligation”) by 2:00 p.m., New York time on the applicable Drawing Date (or, if notice of the Drawing Date is not received by the Seller by 10:00 a.m., New York time on the Drawing Date, by 2:00 p.m., New York time on the first Business Day after such notice is received by the Seller) in an amount equal to the positive difference between (x) the

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amount so paid by the LC Bank and not repaid in accordance with clause (a) above and (y) the amount of available funds on deposit in the LC Collateral Account. Available funds on deposit in the LC Collateral Account shall be applied by the Administrator to satisfy the Reimbursement Obligation in respect of such drawing or a portion thereof. In the event the Seller fails to so reimburse the LC Bank for the full amount of any drawing under any Letter of Credit when and as required hereunder, the LC Bank will promptly notify each LC Participant thereof whereupon (i) each LC Participant shall upon receipt of such notice make available to the LC Bank a participation advance in immediately available funds equal to its Pro Rata Share of the amount of the drawing (a “Participation Advance”), whereupon the LC Participants shall each be deemed to have made a Purchase in that amount. If any LC Participant so notified fails to make available to the LC Bank the amount of such LC Participant’s Pro Rata Share of such amount by 2:00 p.m. (New York City time) on the Drawing Date, then interest shall accrue on such LC Participant’s obligation to make such payment, from the Drawing Date to the date on which such LC Participant makes such payment (i) at a rate per annum equal to the Federal Funds Rate during the first three days following the Drawing Date and (ii) at a rate per annum equal to the Base Rate on and after the fourth day following the Drawing Date. The LC Bank will promptly give notice to each LC Participant of the occurrence of the Drawing Date, but failure of the LC Bank to give any such notice on the Drawing Date or in sufficient time to enable any LC Participant to effect such payment on such date shall not relieve such LC Participant from its obligation under this clause (b). Each LC Participant’s Commitment shall continue until the Final Payout Date.  No Participation Advance by any LC Participant shall reduce the then outstanding Reimbursement Obligation owed by the Seller to the LC Bank.

(c)Any notice given by the LC Bank pursuant to this Section 1.18 may be oral if promptly confirmed in writing; provided that the lack of such a prompt written confirmation shall not affect the conclusiveness or binding effect of such oral notice.

Section 1.19Repayment of Participation Advances.

(a)Upon (and only upon) receipt by the LC Bank for its account of immediately available funds from or for the account of the Seller (i) in reimbursement of any payment made by the LC Bank under a Letter of Credit with respect to which any LC Participant has made a Participation Advance to the LC Bank or (ii) in payment of Discount on the Purchases made or deemed to have been made in connection with any such draw, the LC Bank will pay to each LC Participant, ratably (based on the outstanding drawn amounts funded by each such LC Participant in respect of such Letter of Credit) its share of such funds, in the same funds as those received by the LC Bank; it being understood, that the LC Bank shall retain a ratable amount of such funds that were not the subject of any payment in respect of such Letter of Credit by any LC Participant.

(b)If the LC Bank is required at any time to return to the Seller, or to a trustee, receiver, liquidator, custodian, or any official in any Insolvency Proceeding, any portion of the payments made by the Seller to the LC Bank pursuant to this Agreement in reimbursement of a payment made under the Letter of Credit or interest or fee thereon, each LC Participant shall, on demand of the LC Bank, forthwith return to the LC Bank the amount of its Pro Rata Share of any amounts so returned by the LC Bank plus interest at the Federal Funds Rate, from the date the

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payment was first made to such LC Participant through, but not including, the date the payment is returned by such LC Participant.

Section 1.20Documentation; Documentary and Processing Charges.  The Seller agrees to be bound by the terms of the Letter of Credit Application and by the LC Bank’s written regulations and customary practices relating to letters of credit. In the event of a conflict between the Letter of Credit Application and this Agreement, this Agreement shall govern.  Except in the case of gross negligence or willful misconduct, the LC Bank shall not be liable for any error, negligence and/or mistakes, whether of omission or commission, in following the Seller’s instructions or those contained in the Letters of Credit or any modifications, amendments or supplements thereto.  In addition to any other fees or expenses owing under the Fee Letter or any other Transaction Document or otherwise pursuant to any Letter of Credit Application, the Seller shall pay to the LC Bank for its own account it standard and customary fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder.  Such customary fees shall be payable in arrears on each Settlement Date for the prior Settlement Period and on the Final Payout Date and shall be nonrefundable.

Section 1.21Determination to Honor Drawing Request.  In determining whether to honor any request for drawing under any Letter of Credit by the beneficiary thereof, the LC Bank shall be responsible only to determine that the documents and certificates required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit and that any other drawing condition appearing on the face of such Letter of Credit has been satisfied in the manner so set forth.

Section 1.22Nature of Participation and Reimbursement Obligations.  Each LC Participant’s obligation in accordance with this Agreement to make Participation Advances as a result of a drawing under a Letter of Credit, and the obligations of the Seller to reimburse the LC Bank upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article I under all circumstances, including the following circumstances:

(a)any set-off, counterclaim, recoupment, defense or other right which such LC Participant may have against the LC Bank, the Administrator, the Purchaser Agents, the Purchasers, the Seller, the Servicer, an Originator, the Performance Guarantor or any other Person for any reason whatsoever;

(b)the failure of the Seller or any other Person to comply with the conditions set forth in this Agreement for the making of a purchase, reinvestments, requests for Letters of Credit or otherwise, it being acknowledged that such conditions are not required for the making of Participation Advances hereunder;

(c)any lack of validity or enforceability of any Letter of Credit or any set-off, counterclaim, recoupment, defense or other right which Seller, the Servicer, an Originator, the Performance Guarantor or any Affiliate thereof on behalf of which a Letter of Credit has been issued may have against the LC Bank, the Administrator, any Purchaser, any Purchaser Agent or any other Person for any reason whatsoever;

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(d)any claim of breach of warranty that might be made by the Seller, an Originator or an Affiliate thereof, the LC Bank or any LC Participant against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, defense or other right which the Seller, the Servicer, the LC Bank or any LC Participant may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the LC Bank, any LC Participant, the Administrator, any Purchaser or any Purchaser Agent or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Seller or any Affiliates of the Seller and the beneficiary for which any Letter of Credit was procured);

(e)the lack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or other document presented under any Letter of Credit, or any such draft, demand, instrument, certificate or other document proving to be forged, fraudulent, invalid, defective or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, even if the Administrator or the LC Bank has been notified thereof;

(f)payment by the LC Bank under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit;

(g)the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;

(h)[Reserved];

(i)any Material Adverse Effect on the Seller, any Originator or any Affiliates thereof;

(j)any breach of this Agreement or any Transaction Document by any party thereto;

(k)the occurrence or continuance of an Insolvency Proceeding with respect to the Seller, any Originator or any Affiliate thereof;

(l)the fact that a Termination Event or an Unmatured Termination Event shall have occurred and be continuing;

(m)the fact that this Agreement or the obligations of Seller or Servicer hereunder shall have been terminated; and

(n)any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.

Section 1.23[Reserved].

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Section 1.24Liability for Acts and Omissions.  As between the Seller, on the one hand, and the Administrator, the LC Bank, the LC Participants, the Purchaser Agents and the Purchasers, on the other, the Seller assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by, the respective beneficiaries of such Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Bank, the LC Participants, the Purchaser Agents or the Purchasers shall be responsible for: (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Bank, any LC Participant or any Purchaser shall have been notified thereof); (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of the Seller against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Seller and any beneficiary of any Letter of Credit or any such transferee; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, electronic mail, cable, telegraph, telex, facsimile or otherwise, whether or not they be encrypted; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of the Administrator, the LC Bank, the LC Participants, the Purchaser Agents and the Purchasers, including any Governmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Bank’s rights or powers hereunder.  Nothing in the preceding sentence shall relieve the LC Bank from liability to the Seller in any independent action or proceeding brought by the Seller against the LC Bank following reimbursement or payment by the Seller to the extent of any unavoidable direct damages suffered by the Seller that are caused directly by the LC Bank’s gross negligence or willful misconduct in connection with the actions or omissions described in such clauses (i) through (viii) of such sentence.; provided that (i) the LC Bank shall be deemed to have acted with due diligence and reasonable care if it acts in accordance with standard letter of credit practice of commercial banks; and (ii) the Seller’s aggregate remedies against the LC Bank for wrongfully honoring a presentation or wrongfully retaining honored documents shall in no event exceed the aggregate amount paid by the Seller to the LC Bank with respect to the honored presentation, plus interest.  In no event shall the Administrator, the LC Bank, the LC Participants, the Purchaser Agents or the Purchasers or their respective Affiliates, be liable to the Seller or any other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation Attorney Costs), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.

Without limiting the generality of the foregoing, the Administrator, the LC Bank, the LC Participants, the Purchaser Agents and the Purchasers and each of its Affiliates (i) may rely on any written communication believed in good faith by such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit; (ii) may honor any

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presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Bank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of  Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Bank, the LC Participants, the Purchaser Agents or the Purchasers or their respective Affiliates, in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.

In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to the Seller, any LC Participant or any other Person.

Section 1.25Successor Euro-Rate or LMIR Index.

(a)If the Administrator determines (which determination shall be final and conclusive, absent manifest error) that either (i) (A) the circumstances set forth in Section 1.11 have arisen and are unlikely to be temporary, or (B) the circumstances set forth in Section 1.11 have not arisen but the applicable supervisor or administrator (if any) of the Euro-Rate or LMIR or a Governmental Authority having jurisdiction over the Administrator has made a public statement identifying the specific date after which the Euro-Rate or LMIR shall no longer be used for determining interest rates for loans (either such date, a “LIBOR Termination Date”), or (ii) a rate other than the Euro-Rate or LMIR has become a widely recognized benchmark rate for newly originated loans in Dollars in the U.S. market, then the Administrator may (with the prior consent of the Seller) choose a replacement index for the Euro-Rate or LMIR, as applicable, and make adjustments to applicable margins and related amendments to this Agreement as agreed to by the Seller as referred to below such that, to the extent practicable, the all-in Discount based on the replacement index will be substantially equivalent to the all-in Discount based on the Euro-Rate or LMIR, as applicable, in effect prior to its replacement.

(b)The Administrator and the Seller shall enter into an amendment to this Agreement to reflect the replacement index, the adjusted margins and such other related amendments as may be appropriate, as agreed to by the Administrator and the Seller, for the implementation and administration of the replacement index-based rate.  Notwithstanding anything to the contrary in

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this Agreement or the other Transaction Documents (including, without limitation, Section 6.1), such amendment shall become effective without any further action or consent of any party to this Agreement (other than the Administrator and the Seller) at 5:00 p.m. New York City time on the tenth (10th) Business Day after the date a draft of the amendment is provided to the Purchaser Agents, unless the Administrator receives, on or before such tenth (10th) Business Day, a written notice from the Majority Purchaser Agents stating that such Majority Purchaser Agents object to such amendment.

(c)Selection of the replacement index, adjustments to the applicable margins, and amendments to this Agreement (i) will be determined with due consideration to the then-current market practices for determining and implementing a rate of interest for newly originated loans in the United States and loans converted from a rate based on the Euro-Rate or LMIR, as applicable, to a replacement index-based rate, and (ii) may also reflect adjustments to account for (A) the effects of the transition from the Euro-Rate or LMIR, as applicable, to the replacement index and (B) yield- or risk-based differences between the Euro-Rate or LMIR, as applicable, and the replacement index.

(d)Until an amendment reflecting a new replacement index in accordance with this Section 1.25 is effective, any Portion of Capital for which Discount is determined by reference to the Euro-Rate or LMIR will continue to accrue Discount with reference to the Euro-Rate or LMIR, as applicable, provided however, that if the Administrator determines (which determination shall be final and conclusive, absent manifest error) that a LIBOR Termination Date has occurred, then following the LIBOR Termination Date, all Portions of Capital for which Discount would otherwise be determined with reference to the Euro-Rate or LMIR, as applicable, shall automatically begin accruing Discount with reference to the Base Rate until such time as an amendment reflecting a replacement index and related matters as described above is implemented.

(e)Notwithstanding anything to the contrary contained herein, if at any time the replacement index is less than zero, at such times, such index shall be deemed to be zero for purposes of this Agreement.

ARTICLE II

REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS

Section 2.1Representations and Warranties; Covenants.  Each of the Seller and the Servicer hereby makes the representations and warranties, and hereby agrees to perform and observe the covenants, applicable to it as set forth in Exhibits III and IV, respectively.

Section 2.2Termination Events.  If any of the Termination Events set forth in Exhibit V shall occur, the Administrator may (with the consent of the Majority Purchaser Agents) or shall (at the direction of the Majority Purchaser Agents), by notice to the Seller, declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred); provided, that automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in

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paragraph (f) of Exhibit V, the Facility Termination Date shall occur. Upon any such declaration, occurrence or deemed occurrence of the Facility Termination Date, the Administrator, each Purchaser Agent and each Purchaser shall have, in addition to the rights and remedies that they may have under this Agreement, all other rights and remedies provided to secured parties after default under the UCC and under other Applicable Law, which rights and remedies shall be cumulative.

ARTICLE III

INDEMNIFICATION

Section 3.1Indemnities by the Seller.  Without limiting any other rights any such Person may have hereunder or under Applicable Law, the Seller hereby indemnifies and holds harmless, on an after-tax basis, the Administrator, each Purchaser Agent, each Liquidity Provider, each Program Support Provider and each Purchaser and their respective officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, liabilities, penalties, Taxes, costs and expenses (including reasonable attorneys’ fees and court costs) (all of the foregoing collectively, the “Indemnified Amounts”) at any time imposed on or incurred by any Indemnified Party arising out of or otherwise relating to any Transaction Document, the transactions contemplated thereby or the acquisition of any portion of the Purchased Interest, or any action taken or omitted by any of the Indemnified Parties (including any action taken by the Administrator as attorney-in-fact for the Seller, the Servicer or any Originator hereunder or under any other Transaction Document and including as a consequence, direct or indirect, of the issuance of any Letter of Credit), whether arising by reason of the acts to be performed by the Seller hereunder or otherwise, excluding only Indemnified Amounts to the extent (a) a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct of the Indemnified Party seeking indemnification, (b) due to the credit risk of the Obligor and for which reimbursement would constitute recourse to any Originator, or the Servicer for uncollectible Receivables or (c) such Indemnified Amounts include Taxes imposed or based on, or measured by, the gross or net income or receipts of such Indemnified Party by the jurisdiction under the laws of which such Indemnified Party is organized (or any political subdivision thereof); provided, however, that nothing contained in this sentence shall limit the liability of the Seller or the Servicer or limit the recourse of any Indemnified Party to the Seller or the Servicer for any amounts otherwise specifically provided to be paid by the Seller or the Servicer hereunder.  Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b), (c) and (d) of the previous sentence, the Seller shall indemnify each Indemnified Party for Indemnified Amounts (including losses in respect of uncollectible Receivables, regardless, for purposes of these specific matters, whether reimbursement therefor would constitute recourse to the Seller or the Servicer) relating to or resulting from any of the following:

(i)the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable as of the date of such calculation, the failure of any information contained in any Information Package or Interim Report to be true and correct, or the failure of any other information provided to any Purchaser or the Administrator with respect to the Receivables or this Agreement to be true and correct;

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(ii)the failure of any representation, warranty or statement made or deemed made by the Seller (or any employee, officer or agent of the Seller) under or in connection with this Agreement, any other Transaction Document, or any Information Package, any Interim Report or any other information or report delivered by or on behalf of the Seller pursuant hereto to have been true and correct as of the date made or deemed made;

(iii)the failure by the Seller to comply with any Applicable Law, rule or regulation with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or related Contract with any such Applicable Law, rule or regulation;

(iv)the failure of the Seller to vest and maintain vested in the Administrator (on behalf of the Secured Parties) a first priority perfected ownership or security interest in the Purchased Interest and the property conveyed hereunder, free and clear of any Adverse Claim (other than Permitted Liens);

(v)any commingling of funds to which the Administrator, any Purchaser Agent or any Purchaser is entitled hereunder with any other funds;

(vi)the failure to have filed, or any delay in filing, financing statements (including fixture filings and as extracted collateral filings) or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Receivables in, or purporting to be in, the Receivables Pool and the other Pool Assets, whether at the time of any Purchase or at any subsequent time;

(vii)any failure of a Lock-Box Bank to comply with the terms of the applicable Lock-Box Agreement;

(viii)any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including without limitation a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale or lease of goods or the rendering of services related to such Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;

(ix)any failure of the Seller (or any of its Affiliates acting as the Servicer) to perform its duties or obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party;

(x)any action taken by the Administrator as attorney-in-fact for the Seller or any Originator pursuant to this Agreement or any other Transaction Document;

(xi)any reduction in Capital as a result of the distribution of Collections pursuant to Section 1.4(d), if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any reason;

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(xii)the use of proceeds of Purchases or the issuance of any Letter of Credit; or

(xiii)any environmental liability claim, products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort, arising out of or in connection with any Receivable or any other suit, claim or action of whatever sort relating to any of the Transaction Documents.

Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Seller’s indemnification obligations set forth in this Section 3.1, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified.

If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold it harmless, then the Seller shall contribute to such Indemnified Party the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Seller and its Affiliates on the one hand and such Indemnified Party on the other hand in the matters contemplated by this Agreement as well as the relative fault of the Seller and its Affiliates and such Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations in any event to the maximum extent permitted under Applicable Law.  The reimbursement, indemnity and contribution obligations of the Seller under this Section shall be in addition to any liability which the Seller may otherwise have, shall extend upon the same terms and conditions to each Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Seller and the Indemnified Parties.

Any indemnification or contribution obligations under this Section shall survive the termination of this Agreement.

Section 3.2Indemnities by the Servicer.  Without limiting any other rights that any Indemnified Party may have hereunder or under Applicable Law, rules or regulations, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts arising out of or resulting from (whether directly or indirectly): (a) the failure of any information contained in any Information Package or Interim Report to be true and correct, or the failure of any other information provided to such Indemnified Party by, or on behalf of, the Servicer to be true and correct, (b) the failure of any representation, warranty or statement made or deemed made by the Servicer (or any of its officers) under or in connection with this Agreement or any other Transaction Document to which it is a party to have been true and correct as of the date made or deemed made when made, (c) the failure by the Servicer to comply with any Applicable Law, rule or regulation with respect to any Pool Receivable or the related Contract, or the failure of any Pool Receivable or the related Contract to conform to any such Applicable Law,  (d) any dispute, claim, offset or defense of the Obligor (other than as a result of discharge in bankruptcy with respect to such Obligor) to the payment of any Receivable in, or purporting to be in, the Receivables Pool resulting from or related to the collection activities with respect to such Receivable, (e) any commingling of funds to which the Administrator, any Purchaser Agent or any Purchaser is entitled hereunder with any other funds, (f) any failure of a Lock-Box Bank to comply with the terms of the applicable Lock-Box

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Agreement, the termination by a Lock-Box Bank of any Lock-Box Agreement or any amounts (including in respect of any indemnity) payable by the Administrator to a Lock-Box Bank under any Lock-Box Agreement or (g) any failure of the Servicer to perform its duties or obligations in accordance with the provisions hereof or any other Transaction Document to which it is a party.

If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold it harmless, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Servicer and its Affiliates on the one hand and such Indemnified Party on the other hand in the matters contemplated by this Agreement as well as the relative fault of the Servicer and its Affiliates and such Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations in any event to the maximum extent permitted under Applicable Law.  The reimbursement, indemnity and contribution obligations of the Servicer under this Section shall be in addition to any liability which the Servicer may otherwise have, shall extend upon the same terms and conditions to Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Servicer and the Indemnified Parties.

Any indemnification or contribution obligations under this Section shall survive the termination of this Agreement.

ARTICLE IV

ADMINISTRATION AND COLLECTIONS

Section 4.1            Appointment of the Servicer.

(a)           The servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to time as the Servicer in accordance with this Section 4.1. Until the Administrator gives notice to Cloud Peak (in accordance with this Section 4.1) of the designation of a new Servicer, Cloud Peak is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. Upon the occurrence of a Termination Event, the Administrator may (with the consent of the Majority Purchaser Agents) or shall (at the direction of the Majority Purchaser Agents) designate as Servicer any Person (including itself) to succeed Cloud Peak or any successor Servicer, on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of the Servicer pursuant to the terms hereof.

(b)           Upon the designation of a successor Servicer as set forth in clause (a), Cloud Peak agrees that it will terminate its activities as Servicer hereunder in a manner that the Administrator reasonably determines will facilitate the transition of the performance of such activities to the new Servicer, and Cloud Peak shall cooperate with and assist such new Servicer. Such cooperation shall include access to and transfer of related records (including all Contracts) and use by the new Servicer of all licenses (or the obtaining of new licenses), hardware or software necessary or reasonably desirable to collect the Pool Receivables and the Related Security.

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(c)           Cloud Peak acknowledges that, in making its decision to execute and deliver this Agreement, the Administrator and each member in each Purchaser Group have relied on Cloud Peak agreement to act as Servicer hereunder. Accordingly, Cloud Peak agrees that it will not voluntarily resign as Servicer.

(d)           The Servicer may delegate its duties and obligations hereunder to any subservicer (each a “Sub-Servicer”); provided, that, in each such delegation: (i) such Sub-Servicer shall agree in writing to perform the delegated duties and obligations of the Servicer pursuant to the terms hereof, (ii) the Servicer shall remain liable for the performance of the duties and obligations so delegated, (iii) the Seller, the Administrator and each Purchaser Group shall have the right to look solely to the Servicer for performance, (iv) the terms of any agreement with any Sub-Servicer shall provide that the Administrator may terminate such agreement upon the termination of the Servicer hereunder by giving notice of its desire to terminate such agreement to the Servicer (and the Servicer shall provide appropriate notice to each such Sub-Servicer) and (v) if such Sub-Servicer is not an Affiliate of Cloud Peak, the Administrator and the Majority Purchaser Agents shall have consented in writing in advance to such delegation.

Section 4.2            Duties of the Servicer.

(a)           The Servicer shall take or cause to be taken all such action as may be necessary or reasonably advisable to administer and collect each Pool Receivable from time to time, all in accordance with this Agreement and all Applicable Laws, rules and regulations, with reasonable care and diligence, and in accordance with the Credit and Collection Policy and consistent with the past practices of the Originators.  The Servicer shall set aside for the accounts of the Seller and each Purchaser Group the amount of Collections to which each such Purchaser Group is entitled in accordance with Article I hereof.  The Servicer may, in accordance with the applicable Credit and Collection Policy and consistent with past practices of the Originators, extend the maturity of any Pool Receivable and extend the maturity or adjust the Outstanding Balance of any Defaulted Receivable, as the Servicer may reasonably determine to be appropriate to maximize Collections thereof or reflect adjustments expressly permitted under the Credit and Collection Policy or as expressly required under Applicable Laws, rules or regulations or the applicable Contract; provided, that for purposes of this Agreement: (i) such extension shall not, and shall not be deemed to, change the number of days such Pool Receivable has remained unpaid from the date of the original due date related to such Pool Receivable, (ii) such extension or adjustment shall not alter the status of such Pool Receivable as a Delinquent Receivable or a Defaulted Receivable or limit the rights of any Purchaser, Purchaser Agent or the Administrator under this Agreement or any other Transaction Document and (iii) if a Termination Event has occurred and is continuing and Cloud Peak or an Affiliate thereof is serving as the Servicer, Cloud Peak or such Affiliate may take such action only upon the prior approval of the Administrator.  The Seller shall deliver to the Servicer and the Servicer shall hold for the benefit of the Seller and the Administrator (individually and for the benefit of each Purchaser Group), in accordance with their respective interests, all records and documents (including computer tapes or disks) with respect to each Pool Receivable. Notwithstanding anything to the contrary contained herein, if a Termination Event has occurred and is continuing, the Administrator may direct the Servicer (whether the Servicer is Cloud Peak or any other Person) to commence or settle any legal action to enforce collection of any Pool Receivable or to foreclose upon or repossess any Related Security.

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(b)           The Servicer shall, as soon as practicable following actual receipt of collected funds, turn over to the Seller the collections of any indebtedness that is not a Pool Receivable, less, if Cloud Peak or an Affiliate thereof is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of such Servicer of servicing, collecting and administering such collections. The Servicer, if other than Cloud Peak or an Affiliate thereof, shall, as soon as practicable upon demand, deliver to the Seller all records in its possession that evidence or relate to any indebtedness that is not a Pool Receivable, and copies of records in its possession that evidence or relate to any indebtedness that is a Pool Receivable.

(c)           The Servicer’s obligations hereunder shall terminate on the Final Payout Date.  After such termination, if Cloud Peak or an Affiliate thereof was not the Servicer on the date of such termination, the Servicer shall promptly deliver to the Seller all books, records and related materials that the Seller previously provided to the Servicer, or that have been obtained by the Servicer, in connection with this Agreement.

Section 4.3            Lock-Box Account and LC Collateral Account Arrangements.  Prior to the Closing Date, the Seller shall have entered into Lock-Box Agreements with all of the Lock-Box Banks and delivered executed counterparts thereof to the Administrator.  At all times on and after the Closing Date, the Administrator may (and shall, at the direction of the Majority Purchaser Agents), at any time thereafter give notice to each Lock-Box Bank that the Administrator is exercising its rights under the Lock-Box Agreements to do any or all of the following: (a) to exercise exclusive dominion and control (for the benefit of the Secured Parties) over each of the Lock-Box Accounts and all funds on deposit therein and (b) to take any or all other actions permitted under the applicable Lock-Box Agreement. The Seller and the Servicer each hereby agree that if the Administrator at any time takes any action set forth in the preceding sentence, the Administrator shall have exclusive control (for the benefit of the Secured Parties) of the proceeds (including Collections) of all Pool Receivables and the Seller and the Servicer hereby further agree to take any other action that the Administrator may reasonably request to transfer such control or to ensure that the Administrator maintains such control.  Upon the occurrence and during the continuance of any Termination Event, any proceeds of Pool Receivables received by the Seller or the Servicer thereafter shall be sent immediately to, or as otherwise instructed by, the Administrator.  The Seller and the Servicer hereby irrevocably instruct the Administrator on each Business Day, so long as the Administrator has taken exclusive dominion and control over each of the Lock-Box Accounts and no Termination Event or Unmatured Termination Event exists, to transfer all available amounts on deposit in the Lock-Box Accounts as of the end of each Business Day and after giving effect to any distributions to the Servicer on such day pursuant to Section 1.4(g), to the LC Collateral Account and the Administrator agrees that so long as no Termination Event or Unmatured Termination Event exists, that it shall not direct the application of amounts on deposit in the Lock-Box Accounts in any manner other than as set forth in Sections 1.4(c), (d) and (g) or as otherwise directed by the Seller in a manner permitted under this Agreement.

The Administrator shall have exclusive dominion and control, including the exclusive right of withdrawal, over the LC Collateral Account.  Amounts, if any, on deposit in the LC Collateral Account on the Final Payout Date shall be remitted by the Administrator to the Seller.

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The Administrator shall, on each Settlement Date (if such date occurs on a Termination Day), remove any available amounts then on deposit in the LC Collateral Account and deposit such amounts into each Purchaser Agent’s account in accordance with the priorities set forth in Section 1.4(d), to the extent that any amounts are then due and owing under clauses first through third of Section 1.4(d)(ii) after giving effect to the distribution, if any, by the Servicer on such date in accordance with Section 1.4(d).

Section 4.4            Enforcement Rights.

(a)           At any time following the occurrence and during the continuation of a Termination Event:

(i)            the Administrator may (at the Seller’s expense) direct the Obligors that payment of all amounts payable under any Pool Receivable is to be made directly to the Administrator or its designee,

(ii)           the Administrator may instruct the Seller or the Servicer to give notice of the Purchaser Groups’ interest in Pool Receivables to each Obligor promptly following instruction by the Administrator, which notice shall direct that payments be made directly to the Administrator or its designee (on behalf the Secured Parties), and the Seller or the Servicer, as the case may be, shall give such notice at the expense of the Seller or the Servicer, as the case may be; provided, that if the Seller or the Servicer, as the case may be, fails to so notify each Obligor, the Administrator (at the Seller’s or the Servicer’s, as the case may be, expense) may so notify the Obligors,

(iii)          the Administrator may request the Servicer to, and upon such request the Servicer shall: (A) assemble all of the records necessary or desirable to collect the Pool Receivables and the Related Security, and transfer or license to a successor Servicer the use of all software necessary or desirable to collect the Pool Receivables and the Related Security, and make the same available to the Administrator or its designee (for the benefit of the Purchasers) at a place selected by the Administrator, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections in a manner reasonably acceptable to the Administrator and, promptly upon receipt, remit all such cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to the Administrator or its designee,

(iv)          the Administrator may collect any amounts due from an Originator under the Purchase and Sale Agreement, and

(v)           the Administrator may replace the Person then acting as Servicer in accordance with Section 4.1(a).

(b)           The Seller hereby authorizes the Administrator (on behalf of each Secured Party), and irrevocably appoints the Administrator as its attorney-in-fact with full power of substitution and with full authority in the place and stead of the Seller, which appointment is coupled with an interest, to take any and all steps in the name of the Seller and on behalf of the Seller necessary or desirable, in the reasonable determination of the Administrator, after the occurrence and during the continuation of a Termination Event, to collect any and all amounts or portions

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thereof due under any and all Pool Assets, including endorsing the name of the Seller on checks and other instruments representing Collections and enforcing such Pool Assets. Notwithstanding anything to the contrary contained in this subsection, none of the powers conferred upon such attorney-in-fact pursuant to the preceding sentence shall subject such attorney-in-fact to any liability if any action taken by it shall prove to be inadequate or invalid, nor shall they confer any obligations upon such attorney-in-fact in any manner whatsoever.

Section 4.5            Responsibilities of the Seller.

(a)           Anything herein to the contrary notwithstanding, the Seller shall: (i) perform all of its obligations, if any, under the Contracts related to the Pool Receivables to the same extent as if interests in such Pool Receivables had not been transferred hereunder, and the exercise by the Administrator, the Purchaser Agents or the Purchasers of their respective rights hereunder shall not relieve the Seller from such obligations, and (ii) to the extent the Seller is under any obligation to do so, pay when due any taxes, including any sales taxes payable in connection with the Pool Receivables and their creation and satisfaction. None of the Administrator, the Purchaser Agents or any of the Purchasers shall have any obligation or liability with respect to any Pool Asset, nor shall any of them be obligated to perform any of the obligations of Seller, Servicer, Cloud Peak or any Originator thereunder.

(b)           Cloud Peak hereby irrevocably agrees that if at any time it shall cease to be the Servicer hereunder, it shall act (if the then-current Servicer so requests) as the data-processing agent of the Servicer and, in such capacity, Cloud Peak shall conduct the data-processing functions of the administration of the Receivables and the Collections thereon in substantially the same way that Cloud Peak conducted such data-processing functions while it acted as the Servicer.  In connection with any such processing functions, the Seller shall pay to Cloud Peak its reasonable out-of-pocket costs and expenses from the Seller’s own funds (subject to the priority of payments set forth in Section 1.4).

Section 4.6            Servicing Fee.  (a)  Subject to clause (b), the Servicer shall be paid a fee (the “Servicing Fee”) equal to 1.00% per annum (the “Servicing Fee Rate”) of the daily average aggregate Outstanding Balance of the Pool Receivables.  The Purchasers’ Share of the Servicing Fee shall be paid through the distributions contemplated by Section 1.4(d) and the Seller’s Share of the Servicing Fee shall be paid by the Seller on each Settlement Date.

(b)           If the Servicer ceases to be Cloud Peak or an Affiliate thereof, the Servicing Fee shall be the greater of: (i) the amount calculated pursuant to clause (a), and (ii) an alternative amount specified by the successor Servicer not to exceed 110% of the aggregate reasonable costs and expenses incurred by such successor Servicer in connection with the performance of its obligations as Servicer.

ARTICLE V

THE AGENTS

Section 5.1            Appointment and Authorization.  (a)  Each Purchaser and Purchaser Agent hereby irrevocably designates and appoints PNC Bank, National Association, as the

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“Administrator” hereunder and authorizes the Administrator to take such actions and to exercise such powers as are delegated to the Administrator hereby and to exercise such other powers as are reasonably incidental thereto.  The Administrator shall have no duties or responsibilities except those expressly set forth in this Agreement or in the other Transaction Documents.  The duties of the Administrator shall be mechanical and administrative in nature.  At no time shall the Administrator have any duty or responsibility to any Person to investigate or confirm the correctness or accuracy of any information or documents delivered to it in its role as Administrator hereunder or any obligation in respect of the failure of any Person (other than the Administrator) to perform any obligation hereunder or under any other Transaction Document.  The Administrator shall not have, by reason of this Agreement, a fiduciary relationship in respect of any Purchaser Agent, Purchaser, the Seller, the Servicer or any Originator.  Nothing in this Agreement or any of the Transaction Documents, express or implied, is intended to or shall be construed to impose upon the Administrator any obligations in respect of this Agreement or any of the Transaction Documents except as expressly set forth herein or therein.  The Administrator shall not have any duty or responsibility, either initially or on a continuing basis, to provide any Purchaser or Purchaser Agent with any credit or other information with respect to the Seller, any Originator, Cloud Peak or their Affiliates, whether coming into its possession before the Closing Date or at any time or times thereafter.

(b)           Each Purchaser hereby irrevocably designates and appoints the respective institution identified as the Purchaser Agent for such Purchaser’s Purchaser Group on the signature pages hereto or in the Assumption Agreement or Transfer Supplement pursuant to which such Purchaser becomes a party hereto, and each authorizes such Purchaser Agent to take such action on its behalf under the provisions of this Agreement and to exercise such powers and perform such duties as are expressly delegated to such Purchaser Agent by the terms of this Agreement, if any, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Purchaser Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Purchaser or other Purchaser Agent or the Administrator, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of such Purchaser Agent shall be read into this Agreement or otherwise exist against such Purchaser Agent.

(c)           Except as otherwise specifically provided in this Agreement, the provisions of this Article V are solely for the benefit of the Purchaser Agents, the Administrator and the Purchasers, and none of the Seller or Servicer shall have any rights as a third-party beneficiary or otherwise under any of the provisions of this Article V, except that this Article V shall not affect any obligations which any Purchaser Agent, the Administrator or any Purchaser may have to the Seller or the Servicer under the other provisions of this Agreement. Furthermore, no Purchaser shall have any rights as a third-party beneficiary or otherwise under any of the provisions hereof in respect of a Purchaser Agent which is not the Purchaser Agent for such Purchaser.

(d)           In performing its functions and duties hereunder, the Administrator shall act solely as the agent of the Purchasers and the Purchaser Agents and does not assume nor shall be deemed to have assumed any obligation or relationship of trust or agency with or for the Seller or Servicer or any of their successors and assigns. In performing its functions and duties hereunder, each Purchaser Agent shall act solely as the agent of its respective Purchaser and does not

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assume nor shall be deemed to have assumed any obligation or relationship of trust or agency with or for the Seller, the Servicer, any other Purchaser, any other Purchaser Agent or the Administrator, or any of their respective successors and assigns.

Section 5.2            Delegation of Duties.  The Administrator may execute any of its duties through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties.  The Administrator shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.

Section 5.3            Exculpatory Provisions.  None of the Purchaser Agents, the Administrator or any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted (i) with the consent or at the direction of the Majority Purchaser Agents (or in the case of any Purchaser Agent, the Purchasers within its Purchaser Group that have a majority of the aggregate Commitments of such Purchaser Group) or (ii) in the absence of such Person’s gross negligence or willful misconduct.  The Administrator shall not be responsible to any Purchaser, Purchaser Agent or other Person for (i) any recitals, representations, warranties or other statements made by the Seller, the Servicer, any Originator or any of their Affiliates, (ii) the value, validity, effectiveness, genuineness, enforceability or sufficiency of any Transaction Document, (iii) any failure of the Seller, the Servicer, any Originator or any of their Affiliates to perform any obligation hereunder or under the other Transaction Documents to which it is a party (or under any Contract), or (iv) the satisfaction of any condition specified in Exhibit II.  The Administrator shall not have any obligation to any Purchaser or Purchaser Agent to ascertain or inquire about the observance or performance of any agreement contained in any Transaction Document or to inspect the properties, books or records of the Seller, the Servicer, any Originator or any of their respective Affiliates.

Section 5.4            Reliance by Agents.  (a)  Each Purchaser Agent and the Administrator shall in all cases be entitled to rely, and shall be fully protected in relying, upon any document or other writing or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person and upon advice and statements of legal counsel (including counsel to the Seller), independent accountants and other experts selected by the Administrator.  Each Purchaser Agent and the Administrator shall in all cases be fully justified in failing or refusing to take any action under any Transaction Document unless it shall first receive such advice or concurrence of the Majority Purchaser Agents (or in the case of any Purchaser Agent, the Purchasers within its Purchaser Group that have a majority of the aggregate Commitment of such Purchaser Group), and assurance of its indemnification, as it deems appropriate.

(b)           The Administrator shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with a request of the Majority Purchaser Agents or the Purchaser Agents, and such request and any action taken or failure to act pursuant thereto shall be binding upon all Purchasers, the Administrator and Purchaser Agents.

(c)           The Purchasers within each Purchaser Group with a majority of the Commitments of such Purchaser Group shall be entitled to request or direct the related Purchaser Agent to take action, or refrain from taking action, under this Agreement on behalf of such Purchasers. Such Purchaser Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with a request of such Majority Purchaser Agents, and such

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request and any action taken or failure to act pursuant thereto shall be binding upon all of such Purchaser Agent’s Purchasers.

(d)           Unless otherwise advised in writing by a Purchaser Agent or by any Purchaser on whose behalf such Purchaser Agent is purportedly acting, each party to this Agreement may assume that (i) such Purchaser Agent is acting for the benefit of each of the Purchasers in respect of which such Purchaser Agent is identified as being the “Purchaser Agent” in the definition of “Purchaser Agent” hereto, as well as for the benefit of each assignee or other transferee from any such Person, and (ii) each action taken by such Purchaser Agent has been duly authorized and approved by all necessary action on the part of the Purchasers on whose behalf it is purportedly acting. Each Purchaser Agent and its Purchaser(s) shall agree amongst themselves as to the circumstances and procedures for removal, resignation and replacement of such Purchaser Agent.

Section 5.5            Notice of Termination Events.  Neither any Purchaser Agent nor the Administrator shall be deemed to have knowledge or notice of the occurrence of any Termination Event or Unmatured Termination Event unless the Administrator and the Purchaser Agents have received notice from any Purchaser, the Servicer or the Seller stating that a Termination Event or an Unmatured Termination Event has occurred hereunder and describing such Termination Event or Unmatured Termination Event.  In the event that the Administrator receives such a notice, it shall promptly give notice thereof to each Purchaser Agent whereupon each such Purchaser Agent shall promptly give notice thereof to its related Purchasers.  In the event that a Purchaser Agent receives such a notice (other than from the Administrator), it shall promptly give notice thereof to the Administrator.  The Administrator shall take such action concerning a Termination Event or an Unmatured Termination Event as may be directed by the Majority Purchaser Agents (unless such action otherwise requires the consent of all Purchasers or the LC Bank), but until the Administrator receives such directions, the Administrator may (but shall not be obligated to) take such action, or refrain from taking such action, as the Administrator deems advisable and in the best interests of the Purchasers and the Purchaser Agents.

Section 5.6            Non-Reliance on Administrator, Purchaser Agents and Other Purchasers.  Each Purchaser expressly acknowledges that none of the Administrator, the Purchaser Agents nor any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrator, or any Purchaser Agent hereafter taken, including any review of the affairs of the Seller, Cloud Peak, the Servicer or any Originator, shall be deemed to constitute any representation or warranty by the Administrator or such Purchaser Agent, as applicable.  Each Purchaser represents and warrants to the Administrator and the Purchaser Agents that, independently and without reliance upon the Administrator, Purchaser Agents, the LC Bank or any other Purchaser and based on such documents and information as it has deemed appropriate, it has made and will continue to make its own appraisal of and investigation into the business, operations, property, prospects, financial and other conditions and creditworthiness of the Seller, Cloud Peak, the Servicer or any Originator, and the Receivables and its own decision to enter into this Agreement and to take, or omit, action under any Transaction Document.  Except for items specifically required to be delivered hereunder, the Administrator shall not have any duty or responsibility to provide any Purchaser Agent with any information concerning the Seller, Cloud Peak, the Servicer or any

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Originator or any of their Affiliates that comes into the possession of the Administrator or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.

Section 5.7            Administrator, Purchasers, Purchaser Agents and Affiliates.  Each of the Administrator, the Purchasers and the Purchaser Agents and any of their respective Affiliates may extend credit to, accept deposits from and generally engage in any kind of banking, trust, debt, equity or other business with the Seller, Cloud Peak, the Servicer or any Originator or any of their Affiliates.  With respect to the acquisition of the Eligible Receivables pursuant to this Agreement, each of the Purchaser Agents and the Administrator shall have the same rights and powers under this Agreement as any Purchaser and may exercise the same as though it were not such an agent, and the terms “Purchaser” and “Purchasers” shall include, to the extent applicable, each of the Purchaser Agents and the Administrator in their individual capacities.

Section 5.8            Indemnification.  Each LC Participant and Related Committed Purchaser shall indemnify and hold harmless the Administrator (but solely in its capacity as Administrator) and its respective officers, directors, employees, representatives and agents and the LC Bank (to the extent not reimbursed by the Seller, the Servicer or any Originator and without limiting the obligation of the Seller, the Servicer or any Originator to do so), ratably (based on its Commitment) from and against any and all liabilities, obligations, losses, damages, penalties, judgments, settlements, costs, expenses and disbursements of any kind whatsoever (including in connection with any investigative or threatened proceeding, whether or not the Administrator, the LC Bank or such Person shall be designated a party thereto) that may at any time be imposed on, incurred by or asserted against the Administrator, the LC Bank or such Person as a result of, or related to, any of the transactions contemplated by the Transaction Documents or the execution, delivery or performance of the Transaction Documents or any other document furnished in connection therewith; provided, however, that no LC Participant or Related Committed Purchaser shall be liable for any such liabilities, obligations, losses, damages, penalties, judgments, settlements, costs, expenses or disbursements resulting solely from the Administrator’s or the LC Bank’s gross negligence or willful misconduct of the Administrator or such Person as determined by final non-appealable judgment of a court of competent jurisdiction).  Without limiting the generality of the foregoing, each LC Participant agrees to reimburse the Administrator and the LC Bank, ratably according to their Pro Rata Shares, promptly upon demand, for any out-of-pocket expenses (including reasonable counsel fees) incurred by the Administrator or the LC Bank in connection with the administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of its rights or responsibilities under, this Agreement.

Section 5.9            Successor Administrator.  The Administrator may, upon at least thirty (30) days’ prior written notice to the Seller, each Purchaser and Purchaser Agent, resign as Administrator.  Such resignation shall not become effective until (x) a successor Administrator is appointed by the Majority Purchaser Agents and the LC Bank and has accepted such appointment and (y) so long as no Termination Event or Unmatured Termination Event has occurred and is continuing, the Seller and the Servicer shall have consented to such successor Administrator (such consent not to be unreasonably withheld or delayed).  Upon such acceptance of its appointment as Administrator hereunder by a successor Administrator, such successor Administrator shall succeed to and become vested with all the rights and duties of the retiring Administrator, and the retiring Administrator shall be discharged from its duties and obligations

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under the Transaction Documents.  After any retiring Administrator’s resignation hereunder, the provisions of Sections 3.1 and 3.2 and this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrator.

Section 5.10          Structuring Agent.  Each of the parties hereto hereby acknowledges and agrees that the Structuring Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement, other than the Structuring Agent’s right to receive fees pursuant to Section 1.5.  Each Purchaser acknowledges that it has not relied, and will not rely, on the Structuring Agent in deciding to enter into this Agreement and to take, or omit to take, any action under any Transaction Document.

ARTICLE VI

MISCELLANEOUS

Section 6.1            Amendments, Etc.  No amendment or waiver of any provision of this Agreement or any other Transaction Document, or consent to any departure by the Seller or the Servicer therefrom, shall be effective unless in a writing signed by the Administrator, the Majority Purchaser Agents and the LC Bank and, in the case of an amendment, by the other parties thereto; provided, however, that no such amendment or waiver shall, (a) without the consent of each affected Purchaser, (i) extend the date of any payment or deposit of Collections by the Seller or the Servicer or decrease the outstanding amount of or rate of Discount or extend the repayment of or any scheduled payment date for the payment of any Discount in respect of any Portion of Capital or any fees owed to a Purchaser; (ii) reduce any fees payable pursuant to the applicable Fee Letter, (iii) forgive or waive or otherwise excuse any repayment of Capital or change either the amount of Capital of any Purchaser or any Purchaser’s pro rata share of the Purchased Interest; (iv) amend or modify the Pro Rata Share of any LC Participant; (v) increase the Commitment of any Purchaser; (vi) amend or modify the provisions of this Section 6.1 or the definition of “Capital”, “Eligible Foreign Obligor”, “Eligible Receivables”, “Facility Termination Date” (other than pursuant to an extension thereof in accordance with Section 1.13 hereof), “Majority Purchaser Agents”, “Net Receivables Pool Balance”, “Purchased Interest”, “Termination Day” or “Total Reserves”, (vii) release all or substantially all of the Pool Assets from the security interest granted by the Seller to the Administrator hereunder or (viii) amend or modify any defined term (or any term used directly or indirectly in such defined term) used in clauses (i) through (vi) above in a manner that would circumvent the intention of the restrictions set forth in such clauses and (b) without the consent of the Majority Purchaser Agents amend, waive or modify any provision expressly requiring the consent of the Majority Purchaser Agents.  Each such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given.  No failure on the part of any Purchaser Agent, any Purchaser or the Administrator to exercise, and no delay in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.

Section 6.2            Notices, Etc.  All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including facsimile and email communications) and shall be personally delivered or sent by facsimile or email, or by overnight mail, to the intended party at the mailing or email address or facsimile number of such party set

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forth on Schedule V hereto (or in any other document or agreement pursuant to which it is or became a party hereto), or at such other address or facsimile number as shall be designated by such party in a written notice to the other parties hereto.  All such notices and communications shall be effective (i) if delivered by overnight mail, when received, and (ii) if transmitted by facsimile or email, when sent, receipt confirmed by telephone or electronic means.

Section 6.3            Successors and Assigns; Participations; Assignments.

(a)           Successors and Assigns.  Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party; all covenants, promises and agreements by or on behalf of any parties hereto that are contained in this Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. Except as otherwise provided in Section 4.1(d), neither the Seller nor the Servicer may assign or transfer any of its rights or delegate any of its duties hereunder or under any Transaction Document without the prior written consent of the Administrator, each Purchaser Agent and the LC Bank.  The Administrator, acting solely for this purpose as an agent of the Seller, shall maintain at one of its offices a copy of each assignment agreement delivered to it and a register for the recordation of the names and addresses of the Purchasers, and the rights and obligations hereunder of, and principal amounts (and stated interest) of the Purchases owing to, each Purchaser pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive absent manifest error, and the Seller, the Administrator and the Purchaser shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Purchaser hereunder for all purposes of this Agreement.  The Register shall be available for inspection by the Seller and any Purchaser, at any reasonable time and from time to time upon reasonable prior notice.

(b)           Participations.  Except as otherwise specifically provided herein, any Purchaser may sell to one or more Persons (each a “Participant”) participating interests in the interests of such Purchaser hereunder; provided, that no Purchaser shall grant any participation under which the Participant shall have rights to approve any amendment to or waiver of this Agreement or any other Transaction Document.  Such Purchaser shall remain solely responsible for performing its obligations hereunder, and the Seller, the Servicer, each Purchaser Agent and the Administrator shall continue to deal solely and directly with such Purchaser in connection with such Purchaser’s rights and obligations hereunder.  A Purchaser shall not agree with a Participant to restrict such Purchaser’s right to agree to any amendment hereto, except amendments that require the consent of all Purchasers.  Any such Participant shall not have any rights hereunder or under the Transaction Documents.  Each Committed Purchaser that sells a participation shall, acting solely for this purpose as an agent of the Seller, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Capital or other obligations under this Agreement (the “Participant Register”); provided that no Committed Purchaser shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Capital, Letters of Credit or its other obligations under any this Agreement) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Capital, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Committed

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Purchaser shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrator (in its capacity as Administrator) shall have no responsibility for maintaining a Participant Register.

(c)           Assignments by Certain Related Committed Purchasers.  Any Related Committed Purchaser may assign to one or more Persons (each a “Purchasing Related Committed Purchaser”), reasonably acceptable to each of the Administrator, the LC Bank and the related Purchaser Agent in each such Person’s sole discretion, any portion of its Commitment pursuant to a supplement hereto, substantially in the form of Annex D with any changes as have been approved by the parties thereto (each, a “Transfer Supplement”), executed by each such Purchasing Related Committed Purchaser, such selling Related Committed Purchaser, such related Purchaser Agent and the Administrator and with the consent of the Seller (provided, that the consent of the Seller shall not be unreasonably withheld or delayed and that no such consent shall be required if a Termination Event or Unmatured Termination Event has occurred and is continuing; provided, further, that no consent of the Seller shall be required if the assignment is made by any Related Committed Purchaser to the Administrator, to any other Related Committed Purchaser, to any Affiliate of the Administrator or any Related Committed Purchaser, to any Program Support Provider or any Person which (i) is in the business of issuing commercial paper notes and (ii) is associated with or administered by the Administrator or such Related Committed Purchaser or any Affiliate of the Administrator or such Related Committed Purchaser).  Any such assignment by Related Committed Purchaser cannot be for an amount less than $10,000,000.  Upon (i) the execution of the Transfer Supplement, (ii) delivery of an executed copy thereof to the Seller, the Servicer, such related Purchaser Agent and the Administrator and (iii) payment by the Purchasing Related Committed Purchaser to the selling Related Committed Purchaser of the agreed purchase price, if any, such selling Related Committed Purchaser shall be released from its obligations hereunder to the extent of such assignment and such Purchasing Related Committed Purchaser shall for all purposes be a Related Committed Purchaser party hereto and shall have all the rights and obligations of a Related Committed Purchaser hereunder to the same extent as if it were an original party hereto.  The amount of the Commitment of the selling Related Committed Purchaser allocable to such Purchasing Related Committed Purchaser shall be equal to the amount of the Commitment of the selling Related Committed Purchaser transferred regardless of the purchase price, if any, paid therefor.  The Transfer Supplement shall be an amendment hereof only to the extent necessary to reflect the addition of such Purchasing Related Committed Purchaser as a “Related Committed Purchaser” and a related “LC Participant” and any resulting adjustment of the selling Related Committed Purchaser’s Commitment  and, if applicable, selling related LC Participant’s Pro Rata Share of the LC Participation Amount.

(d)           Assignments to Liquidity Providers and other Program Support Providers.  Any Conduit Purchaser may at any time grant to one or more of its Liquidity Providers or other Program Support Providers, participating interests in its portion of the Purchased Interest.  In the event of any such grant by such Conduit Purchaser of a participating interest to a Liquidity Provider or other Program Support Provider, such Conduit Purchaser shall remain responsible for the performance of its obligations hereunder.  The Seller agrees that each Liquidity Provider and Program Support Provider of any Conduit Purchaser hereunder shall be entitled to the benefits of Sections 1.7 and 1.8.

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(e)           Other Assignment by Conduit Purchasers.  Each party hereto agrees and consents (i) to any Conduit Purchaser’s assignment, participation, grant of security interests in or other transfers of any portion of, or any of its beneficial interest in, the Purchased Interest (or portion thereof), including without limitation to any collateral agent in connection with its commercial paper program and (ii) to the complete assignment by any Conduit Purchaser of all of its rights and obligations hereunder to any other Person, and upon such assignment such Conduit Purchaser shall be released from all obligations and duties, if any, hereunder; provided, that such Conduit Purchaser may not, without the prior consent of its Related Committed Purchasers, make any such transfer of its rights hereunder unless the assignee (x) is a commercial paper conduit that (i) is principally engaged in the purchase of assets similar to the assets being purchased hereunder, (ii) has as its Purchaser Agent the Purchaser Agent of the assigning Conduit Purchaser and (iii) issues commercial paper or other Notes with credit ratings substantially comparable to the ratings of the assigning Conduit Purchaser or (y) is a Related Committed Purchaser or Liquidity Provider for such Conduit Purchaser.  Any assigning Conduit Purchaser shall deliver to any assignee a Transfer Supplement with any changes as have been approved by the parties thereto, duly executed by such Conduit Purchaser, assigning any portion of its interest in the Purchased Interest to its assignee.  Such Conduit Purchaser shall promptly (i) notify each of the other parties hereto of such assignment and (ii) take all further action that the assignee reasonably requests in order to evidence the assignee’s right, title and interest in such interest in the Purchased Interest and to enable the assignee to exercise or enforce any rights of such Conduit Purchaser hereunder.  Upon the assignment of any portion of its interest in the Purchased Interest, the assignee shall have all of the rights hereunder with respect to such interest (except that the Discount therefor shall thereafter accrue at the rate, determined with respect to the assigning Conduit Purchaser unless the Seller, the related Purchaser Agent and the assignee shall have agreed upon a different Discount).

(f)            Certain Pledges.  Without limiting the right of any Purchaser to sell or grant interests, security interests or participations to any Person as otherwise described in this Section 6.3, any Purchaser may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure its obligations as a Purchaser hereunder, including any pledge or assignment to secure obligations to a Federal Reserve Bank;  provided that no such pledge or assignment shall release such Purchaser from any of its obligations hereunder or substitute any such pledgee or assignee for such Purchaser as a party hereto.

Section 6.4            Costs, Expenses and Taxes.  (a)  Without limiting any of the Seller’s other obligations hereunder or under any other Transaction Document (including, without limitation, its obligations under Sections 1.5, 1.7, 1.8, 1.10 and 3.1 of this Agreement and under Section 1(e) of Exhibit IV of this Agreement), the Seller shall pay to the Administrator, each Purchaser Agent and each Purchaser on demand all costs and expenses in connection with (i) the preparation, execution, delivery and administration of this Agreement or the other Transaction Documents and the other documents and agreements to be delivered hereunder and thereunder (and all reasonable costs and expenses in connection with any amendment, waiver or modification of any thereof), (ii) the sale of the Purchased Interest (or any portion thereof), (iii) the perfection (and continuation) of the Administrator’s rights (on behalf of the Secured Parties) in the Receivables, Collections and other Pool Assets, (iv) the enforcement by the Administrator, any Purchaser Agent or any member of any Purchaser Group of the obligations of the Seller, the Servicer or any Originator under the Transaction Documents or of any Obligor under a

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Receivable and (v) the maintenance by the Administrator of the Lock-Box Accounts (and any related lock-box or post office box), including Attorney Costs for the Administrator, the Purchaser Agents and the Purchasers relating to any of the foregoing or to advising the Administrator or any member of any Purchaser Group (including, any related Liquidity Provider or any other related Program Support Provider) about its rights and remedies under any Transaction Document or any other document, agreement or instrument related thereto and all costs and expenses (including Attorney Costs) of the Administrator, any Purchaser Agent and any Purchaser in connection with the enforcement or administration of the Transaction Documents or any other document, agreement or instrument related thereto.  The Administrator and each member of a Purchaser Group agree, however, that unless a Termination Event has occurred and is continuing, all such entities will be represented by a single law firm.  The Seller shall, subject to the provisos in clause (e) of each of Sections 1 and 2 of Exhibit IV, reimburse the Administrator, each Purchaser Agent and each Purchaser for the cost of such Person’s auditors (which may be employees of such Person) auditing the books, records and procedures of the Seller or the Servicer.

(b)           In addition, the Seller shall pay on demand any and all stamp, franchise and other taxes and fees payable in connection with the execution, delivery, filing and recording of this Agreement or the other documents or agreements to be delivered hereunder, and agrees to save each Indemnified Party and Affected Person harmless from and against any liabilities with respect to or resulting from any delay in paying or omission to pay such taxes and fees.

Section 6.5            No Proceedings; Limitation on Payments.  (a)  Each of the Seller, Cloud Peak, the Servicer, the Administrator, the Purchaser Agents, the Purchasers, the LC Bank, each assignee of the Purchased Interest or any interest therein, and each Person that enters into a commitment to purchase the Purchased Interest or interests therein, hereby covenants and agrees that it will not institute against, or join any other Person in instituting against, any Conduit Purchaser any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any federal or state bankruptcy or similar law, for one year and one day after the latest maturing Note issued by such Conduit Purchaser is paid in full.

(b)           Each party hereto agrees that it will not institute against, or join any Person in instituting against, the Seller any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or any other proceeding under any federal or state bankruptcy or similar law, for one year and one day after the Final Payout Date; provided that the Administrator may take any such action with the prior written consent of the Majority Purchaser Agents and the LC Bank.

(c)           Notwithstanding any provisions contained in this Agreement to the contrary, no Conduit Purchaser shall or shall be obligated to, pay any amount, if any, payable by it pursuant to this Agreement or any other Transaction Document unless (i) such Conduit Purchaser has received funds which may be used to make such payment and which funds are not required to repay the Notes when due and (ii) after giving effect to such payment, either (x) such Conduit Purchaser could issue Notes to refinance all outstanding Notes (assuming such outstanding Notes matured at such time) in accordance with the program documents governing such Conduit Purchaser’s securitization program or (y) all Notes are paid in full.  Any amount which such Conduit Purchaser does not pay pursuant to the operation of the preceding sentence shall not

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constitute a claim (as defined in §101 of the Bankruptcy Code) against or company obligation of such Conduit Purchaser for any such insufficiency unless and until such Conduit Purchaser satisfies the provisions of clauses (i) and (ii) above.

(d)           The provisions of this Section 6.5 shall survive any termination of this Agreement.

Section 6.6            GOVERNING LAW AND JURISDICTION.

(a)           THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY OTHERWISE APPLICABLE CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.

(b)           ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK; AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS; PROVIDED THAT WITH RESPECT TO ANY LEGAL ACTION OR PROCEEDING RELATING TO SERVICER OR ANY ORIGINATOR, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY TO THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT.  EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH SERVICE MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.

Section 6.7            Confidentiality.  Unless otherwise required by Applicable Law, each of the Seller and the Servicer agrees to maintain the confidentiality of this Agreement and the other Transaction Documents (and all drafts thereof) in communications with third parties and otherwise; provided, that this Agreement may be disclosed (a) to third parties to the extent such disclosure is made pursuant to a written agreement of confidentiality in form and substance reasonably satisfactory to the Administrator and each Purchaser Agent and (b) to the Seller’s and Servicer’s legal counsel and auditors if they agree to hold it confidential.  Unless otherwise required by Applicable Law, rules or regulations, the Administrator, the Purchaser Agents and the Purchasers agree to maintain the confidentiality of non-public financial information regarding the Seller, the Servicer and any Originator; provided, that such information may be

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disclosed (i) to third parties to the extent such disclosure is made pursuant to a written agreement of confidentiality in form and substance reasonably satisfactory to the Servicer, (ii) to legal counsel and auditors of the Purchasers, the Purchaser Agents or the Administrator if they agree to hold it confidential, (iii) to any nationally recognized statistical rating organization, (iv) to any Program Support Provider or potential Program Support Provider (if they agree to hold it confidential), (v) to any placement agency placing the Notes, and (vi) to any regulatory authorities having jurisdiction over the Administrator, the Purchaser Agents, any Purchaser, any Program Support Provider or any Liquidity Provider.

Section 6.8            Execution in Counterparts.  This Agreement may be executed in any number of counterparts, each of which, when so executed, shall be deemed to be an original, and all of which, when taken together, shall constitute one and the same agreement.

Section 6.9            Survival of Termination.  The provisions of Sections 1.7, 1.8, 1.9, 1.10, 1.22, 1.23, 3.1, 3.2, 6.4, 6.5, 6.6, 6.7, 6.10 and 6.15 shall survive any termination of this Agreement.

Section 6.10          WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE.  EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

Section 6.11          Sharing of Recoveries.  Each Purchaser agrees that if it receives any recovery, through set-off, judicial action or otherwise, on any amount payable or recoverable hereunder in a greater proportion than should have been received hereunder or otherwise inconsistent with the provisions hereof, then the recipient of such recovery shall purchase for cash an interest in amounts owing to the other Purchasers (as return of Capital or otherwise), without representation or warranty except for the representation and warranty that such interest is being sold by each such other Purchaser free and clear of any Adverse Claim created or granted by such other Purchaser, in the amount necessary to create proportional participation by the Purchaser in such recovery.  If all or any portion of such amount is thereafter recovered from the recipient, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.

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Section 6.12          Right of Setoff.  Each Secured Party is hereby authorized (in addition to any other rights it may have) to setoff, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly waived) any deposits and any other indebtedness held or owing by such Secured Party (including by any branches or agencies of such Secured Party) to, or for the account of, the Seller against amounts owing by the Seller hereunder (even if contingent or unmatured).

Section 6.13          Entire Agreement.  This Agreement and the other Transaction Documents embody the entire agreement and understanding between the parties hereto, and supersede all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof and thereof.

Section 6.14          Headings.  The captions and headings of this Agreement and any Exhibit, Schedule or Annex hereto are for convenience of reference only and shall not affect the interpretation hereof or thereof.

Section 6.15          Purchaser Groups’ Liabilities.  The obligations of each Purchaser Agent and each Purchaser under the Transaction Documents are solely the corporate obligations of such Person. Except with respect to any claim arising out of the willful misconduct or gross negligence of the Administrator, any Purchaser Agent or any Purchaser, no claim may be made by the Seller or the Servicer or any other Person against the Administrator, any Purchaser Agent or any Purchaser or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement or any other Transaction Document, or any act, omission or event occurring in connection therewith; and each of Seller and Servicer hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

Section 6.16          USA Patriot Act.  Each of the Administrator and each of the other Secured Parties hereby notifies the Seller and the Servicer that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT Act”), the Administrator and the other Secured Parties may be required to obtain, verify and record information that identifies the Seller, the Servicer and the Performance Guarantor, which information includes the name, address, tax identification number and other information regarding the Seller, the Servicer and the Performance Guarantor that will allow the Administrator and the other Secured Parties to identify the Seller, the Servicer and the Performance Guarantor in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act.  Each of the Seller and the Servicer agrees to provide the Administrator and each other Secured Parties, from time to time, with all documentation and other information required by bank regulatory authorities under “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act.

Section 6.17          Severability.  Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any

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such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 6.18          Mutual Negotiations. This Agreement and the other Transaction Documents are the product of mutual negotiations by the parties thereto and their counsel, and no party shall be deemed the draftsperson of this Agreement or any other Transaction Document or any provision hereof or thereof or to have provided the same.  Accordingly, in the event of any inconsistency or ambiguity of any provision of this Agreement or any other Transaction Document, such inconsistency or ambiguity shall not be interpreted against any party because of such party’s involvement in the drafting thereof.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective signatories thereunto duly authorized, as of the date first above written.

THE SELLER:

CLOUD PEAK ENERGY RECEIVABLES LLC, as Seller
By:	/s/ Heath A. Hill
Name:	Heath A. Hill
Title:	Executive V.P. and Chief Financial Officer

Amended & Restated
Receivables Purchase Agreement
(Cloud Peak Energy Receivables LLC)

S-1

THE SERVICER:

CLOUD PEAK ENERGY RESOURCES LLC, a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, as initial Servicer, as Servicer
By:	/s/ Heath A. Hill
Name:	Heath A. Hill
Title:	Executive V.P. and Chief Financial Officer

Amended & Restated
Receivables Purchase Agreement
(Cloud Peak Energy Receivables LLC)

S-2

PNC’S PURCHASER GROUP:

PNC BANK, NATIONAL ASSOCIATION, as the Related Committed Purchaser and as an LC Participant
By:	/s/ Michael Brown
Name: Michael Brown
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION, as Purchaser Agent for its Purchaser Group
By:	/s/ Michael Brown
Name: Michael Brown
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION, as the LC Bank
By:	/s/ Michael Brown
Name: Michael Brown
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION, as Administrator
By:	/s/ Michael Brown
Name: Michael Brown
Title: Senior Vice President

Amended & Restated
Receivables Purchase Agreement
(Cloud Peak Energy Receivables LLC)

S-3

PNC CAPITAL MARKETS LLC, as Structuring Agent
By:	/s/ Michael Brown
Name: Michael Brown
Title: Senior Vice President

Amended & Restated
Receivables Purchase Agreement
(Cloud Peak Energy Receivables LLC)

S-4

EXHIBIT I

DEFINITIONS

As used in this Agreement (including its Exhibits, Schedules and Annexes), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined). Unless otherwise indicated, all Section, Annex, Exhibit and Schedule references in this Exhibit are to Sections of and Annexes, Exhibits and Schedules to this Agreement.

“Adjusted LC Participation Amount” means, at any time, the greater of (i) LC Participation Amount less the amount of cash collateral held in the LC Collateral Account at such time and (ii) zero ($0).

“Administrator” has the meaning set forth in the preamble to this Agreement.

“Adverse Claim” means any ownership interest or claim, mortgage, deed of trust, pledge, lien, security interest, hypothecation, charge or other encumbrance or security arrangement of any nature whatsoever, whether voluntarily or involuntarily given, including, but not limited to, any conditional sale or title retention arrangement, and any assignment, deposit arrangement or lease intended as, or having the effect of, security and any filed financing statement or other notice of any of the foregoing (whether or not a lien or other encumbrance is created or exists at the time of the filing); it being understood that any thereof in favor of the Administrator (for the benefit of the Purchasers) or the Seller as contemplated by the Purchase and Sale Agreement shall not constitute an Adverse Claim.

“Affected Person” has the meaning set forth in Section 1.7 of this Agreement.

“Affiliate” means, as to any Person: (a) any Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person, or (b) who is a director or officer: (i) of such Person or (ii) of any Person described in clause (a), except that, in the case of each Conduit Purchaser, Affiliate shall mean the holder of its capital stock or membership interest, as the case may be.  For purposes of this definition, control of a Person shall mean the power, direct or indirect: (x) to vote 25% or more of the securities having ordinary voting power for the election of directors of such Person, or (y) to direct or cause the direction of the management and policies of such Person, in either case whether by ownership of securities, contract, proxy or otherwise.

“Aggregate Capital” means at any time the aggregate outstanding Capital of all Purchasers at such time.

“Aggregate Discount” at any time, means the sum of the aggregate for each Purchaser of the accrued and unpaid Discount with respect to each such Purchaser’s Capital at such time.

“Agreement” has the meaning set forth in the preamble hereto.

“Alternate Rate” for any Settlement Period for any Capital (or portion thereof) funded by any Purchaser other than through the issuance of Notes, means an interest rate per annum equal

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to: (i) solely with respect to PNC, as a Purchaser, (a) the daily average LMIR for such Settlement Period or (b) if LMIR is unavailable pursuant to Section 1.11, the daily average Base Rate for such Settlement Period or (ii) with respect to any Purchaser other than PNC, (a) the Euro-Rate for such Settlement Period or (b) if the Euro-Rate is unavailable pursuant to Section 1.11, the daily average Base Rate for such Settlement Period; provided, however, that the “Alternate Rate” for any day while a Termination Event has occurred and is continuing shall be an interest rate per annum equal to the sum of 2.00% per annum plus the greater of (i) the Base Rate in effect on such day and (ii) the Euro-Rate at such time.

“Anti-Terrorism Laws” means any Applicable Law relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery, and any regulation, order, or directive promulgated, issued or enforced pursuant to such Applicable Laws, all as amended, supplemented or replaced from time to time.

“Applicable Law” means, with respect to any Person, (x) all provisions of law, statute, treaty, constitution, ordinance, rule, regulation, ordinance, requirement, restriction, permit, executive order, certificate, decision, directive or order of any Governmental Authority applicable to such Person or any of its property and (y) all judgments, injunctions, orders, writs, decrees and awards of all courts and arbitrators in proceedings or actions in which such Person is a party or by which any of its property is bound.

“Assumption Agreement” means an agreement substantially in the form set forth in Annex C to this Agreement.

“Attorney Costs” means and includes all reasonable fees and disbursements of any law firm or other external counsel.

“Bankruptcy Code” means the United States Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.), as amended from time to time.

“Bankruptcy Court” means the United States Bankruptcy Court for the District of Delaware or such other court as shall have jurisdiction over the Chapter 11 Cases.

“Base Rate” means, with respect to any Purchaser, for any day, a fluctuating interest rate per annum as shall be in effect from time to time, which rate shall be at all times equal to the higher of:

(a)the rate of interest in effect for such day as publicly announced from time to time by the applicable Purchaser Agent or its Affiliate as its “reference rate” or “prime rate”, as applicable.  Such “reference rate” or “prime rate” is set by the applicable Purchaser Agent based upon various factors, including such Person’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such announced rate, and is not necessarily the lowest rate charged to any customer; and

(b)0.50% per annum above the latest Federal Funds Rate.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

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“Benefit Plan” means any employee benefit pension plan as defined in Section 3(2) of ERISA including a multi-employer plan as defined in Section 3(37) of ERISA

“BLM” means the Bureau of Land Management.

“Business Day” means any day (other than a Saturday or Sunday) on which:  (a) banks are not authorized or required to close in Broomfield, Colorado, Gillette, Wyoming, Pittsburgh, Pennsylvania, or New York City, New York, and (b) if this definition of “Business Day” is utilized in connection with the Euro-Rate or LMIR, dealings are carried out in the London interbank market.

“Capital” means, with respect to any Purchaser, without duplication, the aggregate amounts (i) paid to, or on behalf of, the Seller in connection with all Funded Purchases made by such Purchaser pursuant to Section 1.2(b) of this Agreement, (ii) paid by such Purchaser, as an LC Participant, to the LC Bank in respect of a Participation Advance made by such Purchaser to LC Bank pursuant to Section 1.18 and (iii) with respect to the Purchaser that is the LC Bank, paid by the LC Bank with respect to all drawings under the Letter of Credit to the extent such drawings have not been reimbursed by the Seller or funded by Participation Advances, in each case, as reduced from time to time by Collections distributed to such Purchaser (or its Purchaser Agent on its behalf) and applied on account of such Capital pursuant to Section 1.4(d) of this Agreement; provided, that if such Capital shall have been reduced by any distribution and thereafter all or a portion of such distribution is rescinded or must otherwise be returned for any reason, such Capital shall be increased by the amount of such rescinded or returned distribution as though it had not been made.

“Certificate of Beneficial Ownership” means, for the Seller, a certificate in form and substance reasonably acceptable to the Administrator (as amended or modified by the Administrator from time to time in its sole discretion; provided that such certification is consistent with that promulgated by the Loan Syndication and Trading Association), certifying as to the beneficial ownership of the Seller as required by the Beneficial Ownership Regulation.

“Change in Control” means that any of the following has occurred:

(a)Cloud Peak ceases to directly own 100% of the membership interests and any other equity interests of the Seller free and clear of all Adverse Claims (other than any Eligible Subordinated DIP Interest);

(b)(i) Cloud Peak ceases to own, directly or indirectly, 100% of the common stock, membership interests and any other equity interests (as applicable) of each Originator or (ii) any of the Seller, the Servicer or any Originator shall directly or indirectly sell, transfer, assign, convey or lease whether in one or a series of transactions, all or substantially all of its assets;

(c)any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than (in the case of Cloud Peak) the Parent, is or becomes the “beneficial owner” (as such term is used in Rules 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of more than 49% of the total voting power of the Voting Stock of the Parent or Cloud Peak; provided, that as used in this paragraph, (i) “Voting Stock” means with respect to any Person, Capital Stock of any

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class or kind ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person, and (ii) “Capital Stock” means (A) shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interest in a trust or other equity ownership interests in a Person or (B) any warrants, options, or other rights to acquire such shares or interests;

(d)individuals who on the Initial Closing Date constituted the board of directors of the Parent (or, from and after the time, if any, at which Cloud Peak shall have a board of directors, individuals who, on such date, constituted the board of directors of Cloud Peak), together with any new directors whose election by the board of directors or whose nomination for election by the equity holders of the Parent or Cloud Peak, as applicable, was approved by a majority of the directors then still in office who were either directors or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority of the board of directors of the Parent or Cloud Peak, as applicable, then in office; or

(e)the Parent ceases to be the managing member of Cloud Peak.

“Change in Law” means the occurrence, after the Initial Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Chapter 11 Cases” means the Chapter 11 cases of Cloud Peak and certain of its Subsidiaries jointly administered under the same case number in the Bankruptcy Court.

“Closing Date” means May 15, 2019.

“Cloud Peak” has the meaning set forth in the preamble to this Agreement.

“Cloud Peak Group” means Cloud Peak, the Seller, any Originator that is a Subsidiary of Parent or any of their respective Subsidiaries.

“Cloud Peak Operating Group” means the Cloud Peak Group other than the Seller.

“Collections” means, with respect to any Pool Receivable: (a) all funds that are received by any Originator, Cloud Peak, the Seller or the Servicer in payment of any amounts owed in respect of such Receivable (including purchase price, finance charges, interest and all other charges), or applied to amounts owed in respect of such Receivable (including insurance payments and net proceeds of the sale or other disposition of repossessed goods or other collateral or property of the related Obligor or any other Person directly or indirectly liable for

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the payment of such Pool Receivable and available to be applied thereon), (b) all Deemed Collections and (c) all other proceeds of such Pool Receivable.

“Commitment” means, with respect to any Related Committed Purchaser or LC Participant, as applicable, the maximum aggregate amount which such Purchaser is obligated to pay hereunder on account of all Funded Purchases or Participation Advances, as applicable, as set forth on Schedule VI or in the Assumption Agreement or other agreement pursuant to which it became a Purchaser, as such amount may be modified in connection with any subsequent assignment pursuant to Section 6.3(c) or in connection with a change in the Purchase Limit pursuant to Section 1.1(b).

“Commitment Percentage” means, for each Related Committed Purchaser or related LC Participant in a Purchaser Group, the Commitment of such Related Committed Purchaser or related LC Participant, as the case may be, divided by the total of all Commitments of all Related Committed Purchasers or related LC Participants, as the case may be, in such Purchaser Group.

“Concentration Percentage” means (a) except as provided in clause (b) below, (i) for any Group A Obligor, 15.50%, (ii) for any Group B Obligor, 10.50%, (iii) for any Group C Obligor, 5.50% and (iv) for any Group D Obligor, 4.00% and (b) for the Salt River Project (the “Special Obligor”), 20.00% (the “Special Concentration Limit”); provided, however, that the Administrator (with the prior written consent of each Purchaser Agent) may approve higher “Concentration Percentages” for selected Obligors; provided, further, that the Administrator may, upon not less than five (5) Business Days’ notice to Seller, cancel or reduce the Special Concentration Limit with respect to any or all Special Obligor(s), in which case the Concentration Percentage for such Special Obligor(s) shall be determined pursuant to clause (a) above.  In the event that any other Obligor is or becomes an Affiliate of a Special Obligor, the Special Concentration Limit shall apply to both such Obligor and such Special Obligor and shall be calculated as if such Obligor and such Special Obligor were a single Obligor.

“Concentration Reserve” means at any time, the product of (a) the Aggregate Capital plus the Adjusted LC Participation Amount, multiplied by (b)(i) the Concentration Reserve Percentage divided by (ii) 1 minus the Concentration Reserve Percentage.

“Concentration Reserve Percentage” means, at any time, the largest of: (a) the sum of the five (5) largest Obligor Percentages of the Group D Obligors, (b) the sum of the three (3) largest Obligor Percentages of the Group C Obligors, (c) the sum of the two (2) largest Obligor Percentages of the Group B Obligors and (d) the largest Obligor Percentage of the Group A Obligors.

“Conduit Purchaser” means each commercial paper conduit that is a party to this Agreement, as a purchaser, or that becomes a party to this Agreement, as a purchaser pursuant to an Assumption Agreement or otherwise.

“Contract” means, with respect to any Receivable, any and all contracts, instruments, agreements, leases, invoices, notes or other writings, in each case related to the sale or delivery of coal or coal products, pursuant to which such Receivable arises or that evidence such

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Receivable or under which an Obligor becomes or is obligated to make payment in respect of such Receivable.

“Covered Entity” shall mean (a) each of Seller, the Servicer, each Originator, the Performance Guarantor, the Parent and each of Cloud Peak’s Subsidiaries and (b) each Person that, directly or indirectly, is in control of a Person described in clause (a) above.  For purposes of this definition, control of a Person shall mean the direct or indirect (x) ownership of, or power to vote, 25% or more of the issued and outstanding equity interests having ordinary voting power for the election of directors of such Person or other Persons performing similar functions for such Person, or (y) power to direct or cause the direction of the management and policies of such Person whether by ownership of equity interests, contract or otherwise.

“CP Rate” means, for any Conduit Purchaser and for any Settlement Period for any Portion of Capital (a) the per annum rate equivalent to the weighted average cost (as determined by the applicable Purchaser Agent and which shall include commissions of placement agents and dealers, incremental carrying costs incurred with respect to Notes of such Person maturing on dates other than those on which corresponding funds are received by such Conduit Purchaser, other borrowings by such Conduit Purchaser (other than under any Program Support Agreement) and any other costs associated with the issuance of Notes) of or related to the issuance of Notes that are allocated, in whole or in part, by the applicable Conduit Purchaser to fund or maintain such Portion of Capital (and which may be also allocated in part to the funding of other assets of such Conduit Purchaser); provided, however, that if any component of such rate is a discount rate, in calculating the “CP Rate” for such Portion of Capital for such Settlement Period, the applicable Purchaser Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum; provided, further, that notwithstanding anything in this Agreement or the other Transaction Documents to the contrary, the Seller agrees that any amounts payable to any Conduit Purchaser in respect of Discount for any Settlement Period with respect to any Portion of Capital funded by such Conduit Purchaser at the CP Rate shall include an amount equal to the portion of the face amount of the outstanding Notes issued to fund or maintain such Portion of Capital that corresponds to the portion of the proceeds of such Notes that was used to pay the interest component of maturing Notes issued to fund or maintain such Portion of Capital, to the extent that such Conduit Purchaser had not received payments of interest in respect of such interest component prior to the maturity date of such maturing Notes (for purposes of the foregoing, the “interest component” of Notes equals the excess of the face amount thereof over the net proceeds received by such Conduit Purchaser from the issuance of Notes, except that if such Notes are issued on an interest-bearing basis its “interest component” will equal the amount of interest accruing on such Notes through maturity) or (b) any other rate designated as the “CP Rate” for such Conduit Purchaser in an Assumption Agreement or Transfer Supplement or other document pursuant to which such Person becomes a party as a Conduit Purchaser to this Agreement, or any other writing or agreement provided by such Conduit Purchaser to the Seller, the Servicer and the applicable Purchaser Agent from time to time.  The “CP Rate” for any Conduit Purchaser for any day while a Termination Event has occurred and is continuing shall be an interest rate per annum equal to the sum of 2.00% per annum plus the greatest of (i) the Base Rate on such day, (ii) the Euro-Rate on such day and (iii) the applicable “CP Rate” on such day as determined without giving effect to this sentence.

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“Credit and Collection Policy” means, as the context may require, those receivables credit and collection policies and practices of Cloud Peak in effect on the date of this Agreement and described in Schedule I to this Agreement, as modified from time to time in compliance with this Agreement.

“Daily Report” means a report substantially in the form of Annex H.

“Days’ Sales Outstanding” means, for any calendar month, an amount computed as of the last day of such calendar month equal to: (a) the average of the Outstanding Balance of all Pool Receivables as of the last day of each of the three most recent calendar months ended on the last day of such calendar month divided by (b)(i) the aggregate initial Outstanding Balance of all Pool Receivables generated by the Originators during the three calendar months ended on the last day of such calendar month divided by (ii) 90.

“Debt” of any Person shall mean, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person, (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services (other than current trade liabilities and current intercompany liabilities (but not any refinancings, extensions, renewals or replacements thereof) incurred in the ordinary course of business and maturing within 365 days after the incurrence thereof), (e) all guarantees by such Person of Debt of others, (f) all capital lease obligations of such Person, (g) all payments that such Person would have to make in the event of an early termination, on the date Debt of such Person is being determined, in respect of outstanding swap agreements, (h) the principal component of all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and (i) the principal component of all obligations of such person in respect of bankers’ acceptances.  The Debt of any person shall include the Debt of any partnership in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Debt expressly limits the liability of such person in respect thereof.  In no event shall Debt include (i) Specified Coal Agreement Obligations, (ii) obligations (other than obligations with respect to Debt for borrowed money) related to surface rights under an agreement for the acquisition of surface rights for the production of coal reserves in the ordinary course of business in a manner consistent with historical practice of Cloud Peak (including Rio Tinto Energy America, Inc., as its predecessor) and its Subsidiaries, or (iii) obligations under the Tax Receivable Agreement dated as of November 19, 2009 between Rio Tinto Energy America, Inc. and the Parent.

“Declining Conduit Purchaser” has the meaning set forth in Section 1.4(b)(ii) of this Agreement.

“Declining Notice” has the meaning set forth in Section 1.4(b)(ii) of this Agreement.

“Deemed Collections” has the meaning set forth in Section 1.4(e)(ii) of this Agreement.

“Default Ratio” means the ratio (expressed as a percentage and rounded to the nearest 1/100 of 1%) computed as of the last day of each calendar month by dividing:  (a) the aggregate

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Outstanding Balance of all Pool Receivables that became Defaulted Receivables during such month, by (b) the Outstanding Balance of all Pool Receivables generated by the Originators during the month that is three calendar months before such month.

“Defaulted Receivable” means a Receivable:

(a)as to which any payment, or part thereof, remains unpaid for more than 60 days from the original due date for such payment, or

(b)without duplication (i) as to which an Insolvency Proceeding shall have occurred with respect to the Obligor thereof or any other Person obligated thereon or owning any Related Security with respect thereto, or (ii) that has been written off the applicable Originator’s or the Seller’s books as uncollectible.

“Delinquency Ratio” means the ratio (expressed as a percentage and rounded to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of the last day of each calendar month by dividing: (a) the aggregate Outstanding Balance of all Pool Receivables that were Delinquent Receivables on such day by (b) the aggregate Outstanding Balance of all Pool Receivables on such day.

“Delinquent Receivable” means a Receivable (other than a Defaulted Receivable) as to which any payment, or part thereof, remains unpaid for more than 60 days from the original due date for such payment.

“Dilution Horizon Ratio” means, for any calendar month, the ratio (expressed as a percentage and rounded to the nearest 1/100th of 1%) computed as of the last day of such calendar month of: (a) the aggregate initial Outstanding Balance of all Pool Receivables generated by the Originators during the two most recent calendar months, to (b) the Net Receivables Pool Balance at the last day of such calendar month.

“Dilution Ratio” means the ratio (expressed as a percentage and rounded to the nearest 1/100th of 1%), computed as of the last day of each calendar month by dividing: (a) the aggregate amount of Deemed Collections during such calendar month by (b) the aggregate initial Outstanding Balance of all Pool Receivables generated by the Originators during the calendar month that is one month prior to such calendar month.

“Dilution Reserve” means, on any day, an amount equal to: (a) the sum of the Aggregate Capital plus the Adjusted LC Participation Amount at the close of business of the Servicer on such day multiplied by (b) (i) the Dilution Reserve Percentage on such day, divided by (ii) 100% minus the Dilution Reserve Percentage on such day.

“Dilution Reserve Percentage” means on any date, the product of (a) the Dilution Horizon Ratio multiplied by (b) the sum of (i) 2.50 times the arithmetic average of the Dilution Ratios for the twelve most recent calendar months and (ii) the Dilution Volatility Component.

“Dilution Volatility Component” means, for any calendar month, (a) the positive difference, if any, between: (i) the highest Dilution Ratio for any calendar month during the twelve most recent calendar months and (ii) the arithmetic average of the Dilution Ratios for

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such twelve months times (b) the quotient of (i) the highest Dilution Ratio for any calendar month during the twelve most recent calendar months divided by (ii) the arithmetic average of the Dilution Ratios for such twelve months.

“DIP Facility” means a secured superpriority debtor-in-possession credit facility entered into by one or more members of the Cloud Peak Operating Group, it being understood and agreed that the Agreement together with the other Transaction Documents shall not constitute a DIP Facility.

“Discount” means, with respect to any Purchaser:

(a)for any Portion of Capital for any Settlement Period with respect to any Purchaser to the extent such Portion of Capital will be funded by such Purchaser during such Settlement Period through the issuance of Notes:

CPR x C x ED/360

(b)for any Portion of Capital for any Settlement Period with respect to any Purchaser to the extent such Portion of Capital will not be funded by such Purchaser during such Settlement Period through the issuance of Notes:

AR x C x ED/Year

where:

AR=the Alternate Rate for such Portion of Capital for such Settlement Period with respect to such Purchaser;

C=the Capital with respect to such Portion of Capital during such Settlement Period with respect to such Purchaser;

CPR=the CP Rate for the Portion of Capital for such Settlement Period with respect to such Purchaser;

ED=the actual number of days during such Settlement Period; and

Year=if such Portion of Capital is funded based upon: (i) the Euro-Rate or LMIR, 360 days, and (ii) the Base Rate, 365 or 366 days, as applicable;

provided, that no provision of this Agreement shall require the payment or permit the collection of Discount in excess of the maximum permitted by Applicable Law; and provided further, that Discount for any Portion of Capital shall not be considered paid by any distribution to the extent that at any time all or a portion of such distribution is rescinded or must otherwise be returned for any reason.

“Drawing Date” has the meaning set forth in Section 1.18 of the Agreement.

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“Eligible DIP Facility” means a DIP Facility that satisfies each of the following criteria: (a) the DIP Facility is not secured by Adverse Claims on any membership interests or any other equity interests issued by the Seller (other than the Eligible Subordinated DIP Interest), (b) the DIP Facility is not secured by Adverse Claims on any Pool Assets, (c) the superpriority administrative expense claims arising under or in connection with the DIP Facility shall rank pari passu with or, solely in the case of the “Carve Out” (as defined in the Financing Orders), senior to, the Superpriority Claims granted to the Purchasers under the Transaction Documents and (d) the Administrator (in its sole discretion) has confirmed in writing that such DIP Facility (including the interim order and, to the extent then entered, the final order, approving such DIP Facility) is otherwise in form and substance reasonably satisfactory to the Administrator (it being understood and agreed that the “DIP Facility” as defined in and attached to the Interim Order attached hereto as Annex K constitutes an “Eligible DIP Facility”).

“Eligible Foreign Obligor” means an Obligor which is a resident of any country (other than the United States of America or Canada) that meets both of the following criteria: (a) such Obligor is not a Group D Obligor, and (b) such country has a short-term foreign currency rating (or, if such country does not have such a short-term foreign currency rating, a long-term foreign currency rating) of at least “A2” (or “A”) by Standard & Poor’s and “P-1” (or “A2”) by Moody’s.

“Eligible Foreign Obligor Concentration Percentage” means (i) 15.00% at any time when the Cloud Peak has both (x) a rating of “B+” or better by Standard & Poor’s on its long-term senior unsecured and uncredit-enhanced debt securities and (y) a rating of “B2” or better by Moody’s on its long-term senior unsecured and uncredit-enhanced debt securities, (ii) 5.00% at any time when (A) Cloud Peak does not meet the ratings requirements set forth in clause (i) above and (B) Cloud Peak has both (x) a rating of “B” or better by Standard & Poor’s on its long-term senior unsecured and uncredit-enhanced debt securities and (y) a rating of “B3” or better by Moody’s on its long-term senior unsecured and uncredit-enhanced debt securities, and (iii) 0.00% at any other time.

“Eligible Receivable” means, at any time, a Pool Receivable:

(a)the Obligor of which is (i) either (x) a resident of the United States of America or Canada; provided that with respect to any Receivable the Obligor of which is a resident of Canada, the Seller shall have taken all actions, at its own expense, and shall have delivered (or caused to be delivered) to the Administrator all further instruments, opinions and documents, that may be necessary or desirable in the sole determination of the Administrator, as the Administrator may reasonably request, to perfect, protect or more fully evidence such Receivable and the security interest granted therein and in the Related Security and Collections with respect thereto, or to enable the Administrator, any Purchaser Agent or any Purchaser to exercise and enforce their respective rights and remedies under this Agreement or (y) an Eligible Foreign Obligor, not a Federal government or Federal government subdivision or department, affiliate, agency or other entity (other than any Subsidiary of Korea Electric Power Corporation, Tokyo Electric Power Company or any Subsidiary thereof, or Tennessee Valley Authority) unless otherwise approved by the Administrator in writing, (iii) not subject to any Insolvency Proceeding, not a Sanctioned Person and not a resident of a Sanctioned Country, (iv) not

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an Affiliate of the Parent, Cloud Peak, any Originator, the Seller or any of their respective Affiliates and (v) not the Obligor with respect to Delinquent Receivables with an aggregate Outstanding Balance exceeding 50% of the aggregate Outstanding Balance of all such Obligor’s Pool Receivables;

(b)that is denominated and payable in U.S. dollars to a Lock-Box Account in the United States, and the Obligor with respect to which has been instructed to remit Collections in respect thereof to a Lock-Box Account in the United States;

(c)that is not a Delinquent Receivable or a Defaulted Receivable;

(d)in which the Seller owns good and marketable title, free and clear of any Adverse Claims (other than Permitted Liens), and that is freely assignable by the Seller;

(e)that does not have a stated maturity or due date which is more than sixty (60) days after the original invoice date of such Receivable;

(f)that has been billed or, if such Receivable has not yet been billed, the related coal has been shipped within the last thirty (30) days;

(g)that satisfies all applicable requirements of the Credit and Collection Policy;

(h)that arises under a duly authorized Contract for the sale and delivery of goods and services in the ordinary course of the applicable Originator’s business, which Contract is in full force and effect and that is a legal, valid and binding obligation of the related Obligor, enforceable against such Obligor in accordance with its terms;

(i)that is not subject to any right of rescission, set-off (including, without limitation, any such right arising from an Obligor making a deposit or similar payment to an Originator), counterclaim, any other defense against the applicable Originator (as its assignee) or Adverse Claim (other than Permitted Liens), and the Obligor of which holds no right as against the applicable Originator to cause such Originator to repurchase the goods or merchandise, the sale of which shall have given right to such Receivable;

(j)that has not been modified, waived or restructured since its creation, except as permitted pursuant to Section 4.2 of this Agreement;

(k)that conforms in all material respects with all Applicable Laws, rulings and regulations in effect;

(l)for which the Administrator (on behalf of the Secured Parties) shall have a valid and enforceable undivided percentage ownership or security interest, to the extent of the Purchased Interest, and a valid and enforceable first priority perfected security interest therein and in the Related Security and Collections with respect thereto, in each case free and clear of any Adverse Claim (other than Permitted Liens);

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(m)for which none of the Originators, the Seller and the Servicer has established any offset or netting arrangements with the related Obligor (other than offset or netting arrangements for coal quality pursuant to the terms of the related contract in accordance with the Credit and Collection Policy and which offset or netting has been reflected in such Receivable’s Outstanding Balance);

(n)that represents amounts earned and payable by the Obligor that are not subject to the performance of additional services by any Originator;

(o)that constitutes an “account” as defined in the UCC, and that is not evidenced by instruments or chattel paper; and

(p)that satisfies all applicable requirements of clause (k) of Section 6.1 of the Purchase and Sale Agreement.

“Eligible Subordinated DIP Interest” shall mean any Adverse Claim in the membership interests and any other equity interests of the Seller in favor of the administrative agent, collateral agent or trustee under any Eligible DIP Facility, in each case, so long as such Adverse Claim is subject to the Interim Order and expressly subordinated to the Administrator’s security interest therein granted pursuant to the Interim Order or any Pledge Agreement.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute of similar import, together with the rulings and regulations thereunder, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections.

“ERISA Affiliate” means: (a) any corporation that is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Internal Revenue Code) as the Seller, any Originator or Cloud Peak, (b) a trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Internal Revenue Code) with the Seller, any Originator or Cloud Peak, or (c) a member of the same affiliated service group (within the meaning of Section 414(m) of the Internal Revenue Code) as the Seller, any Originator, any corporation described in clause (a) or any trade or business described in clause (b).

“Euro-Rate” means with respect to any Settlement Period, the greater of (a) 0.00% and (b) the interest rate per annum determined by the applicable Purchaser Agent by dividing (the resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the rate of interest determined by such Purchaser Agent in accordance with its usual procedures (which determination shall be conclusive absent manifest error) to be the rate per annum for deposits in U.S. dollars as reported by Bloomberg Finance L.P. and shown on US0001M Screen as the composite offered rate for London interbank deposits for such period (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by such Purchaser Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at or about 11:00 a.m. (London time) on the Business Day which is two (2) Business Days prior to the first day of such

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Settlement Period for an amount comparable to the Portion of Capital to be funded at the Alternate Rate and based upon the Euro-Rate during such Settlement Period by (ii) a number equal to 1.00 minus the Euro-Rate Reserve Percentage. The Euro-Rate may also be expressed by the following formula:

	Composite of London interbank offered rates shown on Bloomberg Finance L.P. Screen US0001M or appropriate successor
Euro-Rate =
	1.00 - Euro-Rate Reserve Percentage

where “Euro-Rate Reserve Percentage” means, the maximum effective percentage in effect on such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the reserve requirements (including without limitation, supplemental, marginal, and emergency reserve requirements) with respect to eurocurrency funding (currently referred to as “Eurocurrency Liabilities”). The Euro-Rate shall be adjusted with respect to any Portion of Capital funded at the Alternate Rate and based upon the Euro-Rate that is outstanding on the effective date of any change in the Euro-Rate Reserve Percentage as of such effective date. The applicable Purchaser Agent shall give prompt notice to the Seller of the Euro-Rate as determined or adjusted in accordance herewith (which determination shall be conclusive absent manifest error).

“Excess Concentration” means the sum of the following (without duplication):

(i)the aggregate of the amounts calculated for each Obligor on a Pool Receivable equal to the amount (if any) by which the Outstanding Balance of Eligible Receivables of such Obligor then in the Receivables Pool exceeds an amount equal to the Concentration Percentage for such Obligor multiplied by the Outstanding Balance of all Eligible Receivables then in the Receivables Pool; plus

(ii)the amount (if any) by which the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool the Obligor of which is a resident of Canada exceeds 3.00% of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool; plus

(iii)the sum of (A) the amount (if any) by which (x) the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool, the Obligors of which are Eligible Foreign Obligors that are not Group A Obligors, exceeds (y) 2.50% of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool, plus (B) the amount (if any) by which (x) the amount equal to (I) the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool, the Obligors of which are Eligible Foreign Obligors, minus (II) the amount (if any) determined pursuant to clause (A) above, exceeds (y) the Eligible Foreign Obligor Concentration Percentage of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool; plus

(iv) the amount (if any) by which the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool with stated maturities or due dates that are more than

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thirty (30) days after the original invoice dates thereof exceeds 3.00% of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool.

In the case of any Obligor which is an Affiliate of any other Obligor, “Excess Concentration” and the components thereof (including, without limitation, the Concentration Percentages and Outstanding Balances) shall be calculated as if such Obligors were a single Obligor.

“Excluded Receivable” means any Receivable (such term being used in this definition without giving effect to the proviso to the definition of “Receivable”), (a) the Obligor of which is Venture Fuels Partnership or (b) the Obligor of which is, or is a Subsidiary of, or a resident of South Korea (a/k/a the Republic of Korea); provided, however, that the Receivables of any such Obligor shall cease to be Excluded Receivables upon the Seller or the Servicer delivering written notice to the Administrator and each Purchaser Agent confirming that such Obligor described in clause (b) above has consented in writing to the Originators’ transfer of such Receivables to the Seller and the Seller’s sale and pledge of such Receivables to the Administrator pursuant to the Transaction Documents.

“Excluded Tax” has the meaning set forth in Section 1.10 of this Agreement.

“Exiting Notice” has the meaning set forth in Section 1.4(b)(ii) of this Agreement.

“Exiting Purchaser” has the meaning set forth in Section 1.4(b)(ii) of this Agreement.

“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and

“Facility Termination Date” means the earliest to occur of: (a) with respect to each Purchaser, LC Participant or LC Bank, May 13, 2022, subject to any extension pursuant to Section 1.13 of this Agreement (it being understood that if any such Purchaser does not extend its Commitment hereunder then the Purchase Limit shall be reduced ratably with respect to the Purchasers in each Purchaser Group by an amount equal to the Commitment of such Exiting Purchaser and the Commitment Percentages and Group Commitments of the Purchasers within each Purchaser Group shall be appropriately adjusted), (b) the date determined pursuant to Section 2.2 of this Agreement, (c) the date the Purchase Limit reduces to zero pursuant to Section 1.1(b) of this Agreement, (d) with respect to each Purchaser Group, the date that the commitment, of all of the Related Committed Purchasers of such Purchaser Group terminate pursuant to Section 1.13 and (e) the effective date of a plan of reorganization filed in the Chapter 11 Cases that is confirmed pursuant to an order entered by the Bankruptcy Court.

“Federal Funds Rate” means, for any day, the per annum rate set forth in the weekly statistical release designated as H.15(519), or any successor publication, published by the Federal Reserve Board (including any such successor, “H.15(519)”) for such day opposite the caption “Federal Funds (Effective).” If on any relevant day such rate is not yet published in H.15(519), the rate for such day will be the rate set forth in the daily statistical release designated

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as the Composite 3:30 p.m. Quotations for U.S. Government Securities, or any successor publication, published by the Federal Reserve Bank of New York (including any such successor, the “Composite 3:30 p.m. Quotations”) for such day under the caption “Federal Funds Effective Rate.” If on any relevant day the appropriate rate is not yet published in either H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such day will be the arithmetic mean as determined by the Administrator of the rates for the last transaction in overnight Federal funds arranged before 9:00 a.m. (New York City Time) on that day by each of three leading brokers of Federal funds transactions in New York City selected by the Administrator.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System, or any entity succeeding to any of its principal functions.

“Fee Letter” has the meaning set forth in Section 1.5 of the Agreement.

“Fees” means the fees payable by the Seller to each member of each Purchaser Group pursuant to the applicable Fee Letter or Section 1.5 of the Agreement.

“Filing Date” means May 15, 2019.

“Filing Debtor” means Cloud Peak or any other member of the Cloud Peak Operating Group that is a debtor in any of the Chapter 11 Cases.

“Final Order” means a final order of the Bankruptcy Court authorizing and approving this Agreement and each of the other Transaction Documents pursuant to Sections 105, 362(d), 363(b)(1), 363(f), 363(m), 364(c), 364(d), 364(e) and 365 of the Bankruptcy Code and Bankruptcy Rule 4001 and providing other relief, in substantially the form of the Interim Order (with only such modifications thereto as are necessary to convert the Interim Order to a final order and such other modifications as are reasonably satisfactory to the Administrator and the Majority Purchaser Agents), which order shall not have been (a) vacated, reversed, or stayed, or (b) amended or modified, except as otherwise agreed to in writing by the Administrator and each of the Purchaser Agents in their sole discretion.

“Final Payout Date” means the latest of (i) the Facility Termination Date, (ii) the date on which no Capital of or Discount in respect of the Purchased Interest shall be outstanding, (iii) the LC Participation Amount is zero ($0), and (iv) the date all other amounts owing to the Purchaser Agents, the Purchasers and the Administrator by the Seller, the Originators, the Servicer and the Performance Guarantor under this Agreement and each of the other Transaction Documents have been paid in full (other than indemnification or other contingent obligations not yet due and owing).

“Financial Officer” means the chief financial officer, principal accounting officer, treasurer or controller of Cloud Peak or the Seller, as applicable.

“Financing Orders” means the Interim Order and the Final Order.

“Funded Purchase” shall mean a Purchase that is made pursuant to Section 1.2(b).

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“GAAP” means the generally accepted accounting principles and practices in the United States, consistently applied.

“Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority.

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

“Group A Obligor” means any Obligor (or, if such Obligor is not rated, its parent company) with a short-term rating of at least: (a) “A-1” by Standard & Poor’s, or if such Obligor (or, if applicable, such parent company) does not have a short-term rating from Standard & Poor’s, a rating of “A+” or better by Standard & Poor’s on its long-term senior unsecured and uncredit-enhanced debt securities, and (b) “P-1” by Moody’s, or if such Obligor (or, if applicable, such parent company) does not have a short-term rating from Moody’s, “A1” or better by Moody’s on its long-term senior unsecured and uncredit-enhanced debt securities.

“Group B Obligor” means any Obligor that is not a Group A Obligor, which Obligor (or, if such Obligor is not rated, its parent company) has a short-term rating of at least: (a) “A-2” by Standard & Poor’s, or if such Obligor does not have a short-term rating from Standard & Poor’s, a rating of “BBB+” to “A” by Standard & Poor’s on its long-term senior unsecured and uncredit-enhanced debt securities, and (b) “P-2” by Moody’s, or if such Obligor (or, if applicable, such parent company) does not have a short-term rating from Moody’s, “Baa1” to “A2” by Moody’s on its long-term senior unsecured and uncredit-enhanced debt securities.

“Group C Obligor” means any Obligor that is not a Group A Obligor or Group B Obligor, which Obligor (or, if such Obligor is not rated, its parent) has a short-term rating of at least: (a) “A-3” by Standard & Poor’s, or if such Obligor does not have a short-term rating from Standard & Poor’s, a rating of “BBB-” to “BBB” by Standard & Poor’s on its long-term senior unsecured and uncredit-enhanced debt securities, and (b) “P-3” by Moody’s, or if such Obligor (or, if applicable, such parent company) does not have a short-term rating from Moody’s, “Baa3” to “Baa2” by Moody’s on its long-term senior unsecured and uncredit-enhanced debt securities.

“Group Capital” means with respect to any Purchaser Group, an amount equal to the aggregate of all Capital of the Purchasers within such Purchaser Group.

“Group Capital Percentage” means with respect to any Purchaser Group, a fraction (expressed as a percentage) (i) the numerator of which is the Group Capital of such Purchaser Group and (ii) the denominator of which is the Aggregate Capital.

“Group Commitment” means with respect to any Purchaser Group, the amount which is set forth opposite the name of such Purchaser Group on Schedule VI, as such amount may be modified in connection with a change in the Purchase Limit pursuant to Section 1.1(b).

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“Group Commitment Percentage” means with respect to any Purchaser Group, a fraction (expressed as a percentage) (i) the numerator of which is the Group Commitment of such Purchaser Group and (ii) the denominator of which is the aggregate Group Commitments of all Purchaser Groups.

“Group D Obligor” means any Obligor that is not a Group A Obligor, Group B Obligor or Group C Obligor.

“Indemnified Amounts” has the meaning set forth in Section 3.1 of this Agreement.

“Indemnified Party” has the meaning set forth in Section 3.1 of this Agreement.

“Indemnified Taxes” has the meaning set forth in Section 1.10 of this Agreement.

“Independent Director” has the meaning set forth in paragraph 3(c) of Exhibit IV to this Agreement.

“Information Package” means a report, in substantially the form of Annex A to this Agreement, furnished by or on behalf of the Servicer to the Administrator and each Purchaser Agent pursuant to the Agreement, reflective of the Receivables Pool as of the end of the most recently completed calendar month.

“Initial Closing Date” means February 11, 2013.

“Insolvency Proceeding” means: (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors of a Person or any composition, marshalling of assets for creditors of a Person, or other similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each case, undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code.

“Intended Tax Treatment” has the meaning set forth in Section 1.14 of the Agreement.

“Interim Order” means an order of the Bankruptcy Court in substantially the form of Annex K, with changes to such form as are reasonably satisfactory to the Administrator and the Majority Purchaser Agents authorizing and approving the Agreement and each of the other Transaction Documents pursuant to Sections 105, 362(d), 363(b)(1), 363(f), 363(m), 364(c), 364(d), 364(e) and 365 of the Bankruptcy Code and Bankruptcy Rule 4001 providing other relief, in form and substance satisfactory to the Administrator and each of the Purchaser Agents in their sole discretion.

“Interim Report” means each Daily Report and Weekly Report.

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute of similar import, together with the regulations thereunder, in each case as in effect from time to time. References to sections of the Internal Revenue Code also refer to any successor sections.

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“IRS” means the United States Internal Revenue Service.

“LBA” means the acquisition of federal coal through an application for a federal coal lease submitted in accordance with the BLM competitive leasing regulations.

“LBM” means the acquisition of federal coal through an application to modify an existing coal lease submitted in accordance with the BLM non-competitive leasing regulations.

“LC Bank” has the meaning set forth in the preamble to the Agreement.

“LC Collateral Account” means the account at any time designated as the LC Collateral Account established and maintained by the Administrator (for the benefit of the LC Bank and the LC Participants), or such other account as may be so designated as such by the Administrator.

“LC Fee Expectation” has the meaning set forth in Section 1.1(b) of the Agreement.

“LC Participant” means each Person listed as such (and its respective Commitment) for each Purchaser Group as set forth on the signature pages of this Agreement or in any Assumption Agreement or Transfer Supplement.

“LC Participation Amount” means, at any time, the sum of the undrawn face amount of all Letters of Credit outstanding at such time.

“LCR Security” means any commercial paper or security (other than equity securities issued to Parent or any Originator that is a consolidated subsidiary of Parent under GAAP) within the meaning of Paragraph   .32(e)(viii) of the final rules titled Liquidity Coverage Ratio: Liquidity Risk Measurement Standards, 79 Fed. Reg. 197, 61440 et seq. (October 10, 2014).

“Letter of Credit” means any stand-by letter of credit issued (or deemed issued, as set forth in the Preliminary Statements hereof) by the LC Bank pursuant to the Agreement.

“Letter of Credit Application” has the meaning set forth in Section 1.16 of the Agreement.

“Liquidity Agent” means each of the banks acting as agent for the various Liquidity Providers under each Liquidity Agreement.

“Liquidity Agreement” means any agreement entered into in connection with this Agreement pursuant to which a Liquidity Provider agrees to make purchases or advances to, or purchase assets from, any Conduit Purchaser in order to provide liquidity for such Conduit Purchaser’s Purchases.

“Liquidity Provider” means each bank or other financial institution that provides liquidity support to any Conduit Purchaser pursuant to the terms of a Liquidity Agreement.

“Liquidity Reporting Date” means (a) with respect to each Information Package, the last Business Day of the related calendar month, (b) with respect to each Weekly Report, the last

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Business day of the related calendar week and (c) with respect to each Daily Report, the previous Business Day.

“LMIR” means for any day during any Settlement Period, the greater of (a) 0.00% and (b) the one-month Eurodollar rate for U.S. dollar deposits as reported on the Reuters Screen LIBOR01 Page or any other page that may replace such page from time to time for the purpose of displaying offered rates of leading banks for London interbank deposits in United States dollars, as of 11:00 a.m. (London time) on such day, or if such day is not a Business Day, then the immediately preceding Business Day (or if not so reported, then as determined by the Administrator from another recognized source for interbank quotation), in each case, changing when and as such rate changes.

“Lock-Box Account” means each account listed on Schedule II to this Agreement and maintained, in each case in the name of the Seller and maintained by the Seller at a bank or other financial institution acting as a Lock-Box Bank pursuant to a Lock-Box Agreement for the purpose of receiving Collections.

“Lock-Box Agreement” means an agreement, among the Seller, the Servicer, a Lock-Box Bank and the Administrator, governing the terms of the related Lock-Box Accounts, in each case acceptable to the Administrator.

“Lock-Box Bank” means any of the banks or other financial institutions holding one or more Lock-Box Accounts.

“Loss Horizon Ratio” means, on any date, the ratio (expressed as a percentage and rounded to the nearest 1/100 of 1%) computed by dividing: (a) the aggregate initial Outstanding Balance of all Pool Receivables generated by the Originators during the four (4) most recent calendar months, by (b) the Net Receivables Pool Balance as of such date.

“Loss Reserve” means, on any date, an amount equal to:  (a) the sum of the Aggregate Capital plus the Adjusted LC Participation Amount at the close of business of the Servicer on such date multiplied by (b) (i) the Loss Reserve Percentage on such date divided by (ii) 100% minus the Loss Reserve Percentage on such date.

“Loss Reserve Percentage” means, on any date, the product of (a) 2.50, times (b) the highest average of the Default Ratios for any three consecutive calendar months during the twelve most recent calendar months, times (c) the Loss Horizon Ratio.

“Majority Purchaser Agents” means, at any time, the Purchaser Agents for the Purchaser Groups with Group Commitments that aggregate more than 50% of the Purchase Limit; provided, however, that so long as the Group Commitment of any single Purchaser Group is greater than 50% of the Purchase Limit, then “Majority Purchaser Agents” shall mean a minimum of two Purchaser Agents for Purchaser Groups with Group Commitments that aggregate more than 50% of the Purchase Limit.

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“Material Adverse Effect” means a material adverse effect on any of the following:

(a)the assets, operations, business or financial condition of Cloud Peak, the Servicer, any Originator or the Seller;

(b)the ability of any of Cloud Peak, the Servicer, any Originator or the Seller to perform its obligations under this Agreement or any other Transaction Document to which it is a party;

(c)the validity or enforceability of any of the Transaction Documents, or the validity, enforceability or collectibility of any material portion of the Pool Receivables; or

(d)the status, perfection, enforceability or priority of any Secured Party or the Seller’s interest in the Pool Assets;

provided, however, that no “Material Adverse Effect” shall be deemed to occur due to any event or circumstance that occurs as a result of events leading up to a proceeding under chapter 11 of the Bankruptcy Code or the commencement and continuation of the Chapter 11 Cases in and of itself.

“Material Debt” means (a) any Debt of Cloud Peak or any of its Affiliates under any Eligible DIP Facility and (b) any other Debt of the Parent, Cloud Peak or any of their respective Subsidiaries that is outstanding in a principal amount of at least $50,000,000 in the aggregate.

“Material Debt Agreement” means any Eligible DIP Facility and any other agreement under which any Material Debt was created or is governed or which provides for the incurrence of Debt in an amount which would constitute Material Debt (whether or not an amount of Debt constituting Material Debt is outstanding thereunder).

“Minimum Dilution Reserve” means at any time, the product of (a) the sum of the Aggregate Capital plus the Adjusted LC Participation Amount, and (b)(i) the Minimum Dilution Reserve Percentage divided by (ii) 1 minus the Minimum Dilution Reserve Percentage.

“Minimum Dilution Reserve Percentage” means, at any time, the product of (a) the arithmetic average of the Dilution Ratios for the twelve most recent calendar months at such time multiplied by (b) the Dilution Horizon Ratio.

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto that is a nationally recognized statistical rating organization.

“Net Receivables Pool Balance” means, at any time: (a) the Outstanding Balance of Eligible Receivables then in the Receivables Pool minus (b) the Excess Concentration.

“Notes” means short-term promissory notes issued, or to be issued, by any Conduit Purchaser to fund its investments in accounts receivable or other financial assets.

“Notice Date” has the meaning set forth in Section 1.16 of this Agreement.

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“Obligor” means, with respect to any Receivable, the Person obligated to make payments pursuant to the Contract relating to such Receivable.

“Obligor Percentage” means, at any time, for each Obligor, a fraction, expressed as a percentage, (a) the numerator of which is the aggregate Outstanding Balance of the Eligible Receivables of such Obligor less the amount (if any) then included in the calculation of the Excess Concentration with respect to such Obligor, and (b) the denominator of which is the aggregate Outstanding Balance of all Eligible Receivables at such time; provided, however, that the Salt River Project’s Obligor Percentage shall not be deemed to exceed 15.50% for so long as the Salt River Project remains a Special Obligor pursuant to the definition of “Concentration Percentage”.

“Order” has the meaning set forth in Section 1.24 of this Agreement.

“Originator” means each Person from time to time party to the Purchase and Sale Agreement in the capacity of an “Originator” thereunder.  As of the Closing Date, the Originators are (i) Cloud Peak, (ii) Kennecott Coal Sales LLC, an Oregon limited liability company, (iii) Cloud Peak Energy Logistics LLC, an Oregon limited liability company, (iv) Spring Creek Coal LLC, a Delaware limited liability company, (v) Antelope Coal LLC, a Delaware limited liability company, (vi) Cordero Mining LLC, a Delaware limited liability company, and (vii) Caballo Rojo LLC, a Delaware limited liability company.

“Other Taxes” means any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Transaction Document.

“Outstanding Balance” of any Receivable at any time means the then outstanding principal balance thereof.

“Parent” means Cloud Peak Energy Inc., a Delaware corporation.

“Participant” has the meaning set forth in Section 6.3(b) of this Agreement.

“Participant Register” has the meaning set forth in Section 6.3(b) of this Agreement.

“Participation Advance” has the meaning set forth in Section 1.18 of this Agreement.

“Performance Guarantor” means Cloud Peak Energy Resources LLC, a Delaware limited liability company.

“Performance Guaranty” means the Amended and Restated Performance Guaranty, dated as of the date hereof, by the Performance Guarantor, in favor of the Administrator for the benefit of the Secured Parties, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Permitted Liens” shall mean the following encumbrances but only to the extent the holders of such encumbrances have not commenced a foreclosure or other enforcement action

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with respect thereto: (a) Adverse Claims for taxes or assessments or other governmental charges not yet due and payable or that are being contested in good faith and by appropriate proceedings diligently conducted, and for which adequate reserves have been set aside in accordance with GAAP (but only to the extent that any Adverse Claim to secure payment of such taxes or assessments or other governmental charges is an inchoate tax lien); (b) inchoate and unperfected workers’, mechanics’, suppliers’ or similar Adverse Claims arising in the ordinary course of business; (d) carriers’, warehousemen’s or other similar possessory liens arising in the ordinary course of business and securing liabilities in an outstanding aggregate amount not in excess of $1,000,000 at any one time; and (e) currently existing or hereinafter created liens in favor of Seller, the Purchasers or the Administrator.

“Person” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.

“Pledge Agreement” means any Pledge Agreement pursuant to which Cloud Peak pledges to the Administrator its membership interests and any other equity interests of the Seller.

“Pool Assets” has the meaning set forth in Section 1.2(d) of this Agreement.

“Pool Receivable” means a Receivable in the Receivables Pool.

“Portion of Capital” means, with respect to any Purchaser and its related Capital, the portion of such Capital being funded or maintained by such Purchaser by reference to a particular interest rate basis.

“Prior Agreement” has the meaning set forth in the preamble to this Agreement.

“Prior Agreement Outstanding Amounts” has the meaning set forth in the preamble to this Agreement.

“Private Coal Agreement” means an agreement between Cloud Peak and/or one or more of its Subsidiaries, on the one hand, and a seller or lessee (in each case, that is not a Governmental Authority) (the “Transferee”) under which Cloud Peak and its Subsidiaries acquire coal through (i) a lease from such Transferee, (ii) the purchase of one or more coal deposit or other assets from such Transferee or (iii) the exchange of coal assets between Cloud Peak and its Subsidiaries, on the one hand, and such Transferee, on the other.

“Pro Rata Share” means, as to any LC Participant, a fraction, the numerator of which equals the Commitment of such LC Participant at such time and the denominator of which equals the aggregate of the Commitments of all LC Participants at such time.

“Program Support Agreement” means and includes any Liquidity Agreement and any other agreement entered into by any Program Support Provider providing for: (a) the issuance of one or more letters of credit for the account of any Conduit Purchaser, (b) the issuance of one or more surety bonds for which the such Conduit Purchaser is obligated to reimburse the applicable Program Support Provider for any drawings thereunder, (c) the sale by such Conduit Purchaser to any Program Support Provider of the Purchased Interest (or portions thereof) maintained by

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such Conduit Purchaser and/or (d) the making of loans and/or other extensions of credit to any Conduit Purchaser in connection with such Conduit Purchaser’s securitization program contemplated in this Agreement, together with any letter of credit, surety bond or other instrument issued thereunder.

“Program Support Provider” means and includes with respect to each Conduit Purchaser any Liquidity Provider and any other Person (other than any customer of such Conduit Purchaser) now or hereafter extending credit or having a commitment to extend credit to or for the account of, or to make purchases from, such Conduit Purchaser pursuant to any Program Support Agreement.

“Purchase” has the meaning set forth in Section 1.1(a) of this Agreement.

“Purchase and Sale Agreement” means the Amended and Restated Purchase and Sale Agreement, dated as of the Closing Date, among the Originators, the Seller and the Servicer, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.

“Purchase Date” means the date of which a Purchase or a reinvestment is made pursuant to this Agreement.

“Purchase Facility” has the meaning set forth in Section 1.1 of the Purchase and Sale Agreement.

“Purchase Limit” means $35,000,000, as such amount may be reduced pursuant to Section 1.1(b) of this Agreement or otherwise in connection with any Exiting Purchaser.

“Purchase Notice” has the meaning set forth in Section 1.2(a) to this Agreement.

“Purchased Interest” means, at any time, the undivided percentage ownership interest in: (a) each and every Pool Receivable now existing or hereafter arising, (b) all Related Security with respect to such Pool Receivables and (c) all Collections with respect to, and other proceeds of, such Pool Receivables and Related Security. Such undivided percentage interest shall be computed as:

Aggregate Capital + Adjusted LC Participation Amount + Total Reserves 
Net Receivables Pool Balance

The Purchased Interest shall be determined from time to time pursuant to Section 1.3 of this Agreement.

“Purchaser” means each Conduit Purchaser, each Related Committed Purchaser, LC Participant and/or the LC Bank.

“Purchaser Agent” means each Person acting as agent on behalf of a Purchaser Group and designated as a Purchaser Agent for such Purchaser Group on the signature pages to this Agreement or any other Person who becomes a party to this Agreement as a Purchaser Agent

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pursuant to an Assumption Agreement or a Transfer Supplement or otherwise in accordance with this Agreement.

“Purchaser Group” means, (i) for any Conduit Purchaser, such Conduit Purchaser, together with such Conduit Purchaser’s Related Committed Purchasers, related Purchaser Agent and related LC Participants and (ii) for PNC, PNC, as a Purchaser Agent, a Related Committed Purchaser, the LC Bank and an LC Participant.

“Purchasers’ Share” of any amount, at any time, means such amount multiplied by the Purchased Interest at such time.

“Purchasing Related Committed Purchaser” has the meaning set forth in Section 6.3(c) of this Agreement.

“Qualifying Interim Report” shall mean any Daily Report that satisfies each of the following conditions: (A) the Purchased Interest as set forth in such Daily Report shall not exceed 100%; (B) such Daily Report is calculated as of the immediately prior Business Day and (C) all information or calculations set forth in such Daily Report are true and correct.

“Receivable” means any indebtedness and other obligations owed to any Originator or the Seller or any right of the Seller or any Originator to payment from or on behalf of an Obligor or any right to reimbursement for funds paid or advanced by the Seller or any Originator on behalf of an Obligor, whether constituting an account, chattel paper, payment intangible, instrument, general intangible or as-extracted collateral, however arising (whether or not earned by performance), and includes, without limitation, the obligation to pay any finance charges, fees and other charges with respect thereto; provided, however, that “Receivable” (except as used in the definition of “Excluded Receivable”) does not include any Excluded Receivable.  Indebtedness and other obligations arising from any one transaction, including, without limitation, indebtedness and other obligations represented by an individual invoice or agreement, shall constitute a Receivable separate from a Receivable consisting of the indebtedness and other obligations arising from any other transaction.

“Receivables Pool” means, at any time, all of the then outstanding Receivables purchased by the Seller pursuant to the Purchase and Sale Agreement prior to the Facility Termination Date.

“Reimbursement Obligation” has the meaning set forth in Section 1.18 of this Agreement.

“Related Committed Purchaser” means each Person listed as such (and its respective Commitment) for each Conduit Purchaser as set forth on the signature pages of this Agreement or in any Assumption Agreement or Transfer Supplement.

“Related Rights” has the meaning set forth in Section 1.1 of the Purchase and Sale Agreement.

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“Related Security” means, with respect to any Receivable:

(a)all of the Seller’s and each Originator’s interest in any goods (including returned goods), and documentation of title evidencing the shipment or storage of any goods (including returned goods), the sale of which gave rise to such Receivable;

(b)all instruments and chattel paper that may evidence such Receivable;

(c)all other security interests or liens and property subject thereto from time to time purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all UCC financing statements or similar filings relating thereto;

(d)all of the Seller’s and each Originator’s rights, interests and claims under the Contracts relating to such Receivable, and all guaranties, indemnities, insurance and other agreements (including the related Contract) or arrangements of whatever character from time to time supporting or securing payment of such Receivable or otherwise relating to such Receivable, whether pursuant to the Contract related to such Receivable or otherwise; and

(e)all of the Seller’s rights, interests and claims under the Purchase and Sale Agreement and the other Transaction Documents.

“Reportable Compliance Event” shall mean that any Covered Entity becomes a Sanctioned Person, or is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially detained in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or has knowledge of facts or circumstances to the effect that it is reasonably likely that any aspect of its operations is in actual or probable violation of any Anti-Terrorism Law.

“Restricted Payments” has the meaning set forth in Section 1(o) of Exhibit IV to the Agreement.

“Sales Agency Agreement” means that certain Sales Agency Agreement, dated as of February 11, 2013, among the Originators, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.

“Salt River Project” means the Salt River Project Agricultural Improvement and Power District.

“Sanctioned Country” means a country subject to a sanctions program maintained under any Anti-Terrorism Law.

“Sanctioned Person”  means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person, group, regime, entity or thing, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any Anti-Terrorism Law.

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“SEC” shall mean the Securities and Exchange Commission or any governmental agencies substituted therefor.

“Secured Parties” means the Administrator, each Purchaser, each Purchaser Agent, each Indemnified Party and each Affected Person.

“Seller” has the meaning set forth in the preamble to this Agreement.

“Seller’s Share” of any amount means the greater of: (a) $0 and (b) such amount minus the product of (i) such amount multiplied by (ii) the Purchased Interest.

“Servicer” has the meaning set forth in the preamble to this Agreement.

“Servicing Fee” shall mean the fee referred to in Section 4.6 of this Agreement.

“Servicing Fee Rate” shall have the meaning set forth in Section 4.6 of this Agreement.

“Settlement Date” means the twentieth (20th) day of each calendar month (or if such day is not a Business Day, the next occurring Business Day), provided, that on and after the occurrence and continuation of any Termination Event, the Settlement Date shall be the date selected as such by the Administrator from time to time (it being understood that the Administrator may select such Settlement Date to occur as frequently as daily) or, in the absence of any such selection, the date which would be the Settlement Date pursuant to this definition.

“Settlement Period” means:  (a) before the Facility Termination Date, each calendar month commencing on (and including) the first day of such calendar month and ending on (and including) the last day of such calendar month, and (b) on and after the Facility Termination Date, such period (including a period of one day) as shall be selected from time to time by the Administrator (with the consent or at the direction of the Majority Purchaser Agents) or, in the absence of any such selection, each calendar month as described in clause (a) above.  For the avoidance of doubt, the applicable or related Settlement Period for each Settlement Date shall be the Settlement Period most recently ended prior to such Settlement Date.

“Solvent” means, with respect to any Person at any time, a condition under which:

(i)the fair value and present fair saleable value of such Person’s total assets is, on the date of determination, greater than such Person’s total liabilities (including contingent and unliquidated liabilities) at such time;

(ii)the fair value and present fair saleable value of such Person’s assets is greater than the amount that will be required to pay such Person’s probable liability on its existing debts as they become absolute and matured (“debts,” for this purpose, includes all legal liabilities, whether matured or unmatured, liquidated or unliquidated, absolute, fixed, or contingent);

(iii)such Person is and shall continue to be able to pay all of its liabilities as such liabilities mature; and

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(iv)such Person does not have unreasonably small capital with which to engage in its current and in its anticipated business.

For purposes of this definition:

(A)the amount of a Person’s contingent or unliquidated liabilities at any time shall be that amount which, in light of all the facts and circumstances then existing, represents the amount which can reasonably be expected to become an actual or matured liability;

(B)the “fair value” of an asset shall be the amount which may be realized within a reasonable time either through collection or sale of such asset at its regular market value;

(C)the “regular market value” of an asset shall be the amount which a capable and diligent business person could obtain for such asset from an interested buyer who is willing to Purchase such asset under ordinary selling conditions; and

(D)the “present fair saleable value” of an asset means the amount which can be obtained if such asset is sold with reasonable promptness in an arm’s-length transaction in an existing and not theoretical market.

“Specified Coal Agreement Obligations” means installment or deferred payment obligations or royalty payment obligations or obligations in connection with the acquisition of related surface rights, in each case, in connection with a Specified Coal Agreement owed solely to the seller or lessor thereunder (and not to a bank or other third-party financer), but excluding, in any event, any Debt for borrowed money.

“Specified Coal Agreements” means any LBA, LBM, State Coal Lease and Private Coal Agreements.

“Specified Tax” means the $11,595,600 ad valorem/gross proceeds tax owed to the State of Wyoming and due and payable on May 10, 2019.

“Standard & Poor’s” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and any successor thereto that is a nationally recognized statistical rating organization.

“State Coal Lease” means the acquisition of coal owned by a State in accordance with the coal leasing regulations of such State.

“Structuring Agent” means PNC Capital Markets LLC, a Pennsylvania limited liability company.

“Sub-Servicer” has the meaning set forth in Section 4.1(d) of this Agreement.

“Subordinated Note” means the promissory note issued by the Seller to Cloud Peak for the benefit of the Originators in the form of Exhibit B to the Purchase and Sale Agreement (as it

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may be amended, supplemented, endorsed or otherwise modified from time to time, together with all promissory notes issued from time to time in substitution therefor or renewal thereof in accordance with the Transaction Documents and in substantially the form of Exhibit B to the Purchase and Sale Agreement).

“Subsidiary” means, as to any Person (“parent”) at any date, (a) any corporation, partnership, limited liability company, joint venture or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date and (b) any other corporation, limited liability company, partnership or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held by the parent and/or one or more of its subsidiaries.

“Superpriority Claim” means a claim against any member of the Cloud Peak Operating Group in any of the Chapter 11 Cases, which is an administrative expense claim having priority over any or all administrative expenses of the kind specified in Section 503(b) or 507(b) of the Bankruptcy Code.

“Tangible Net Worth” means, with respect to any Person, the tangible net worth of such Person as determined in accordance with GAAP.

“Taxes” means, with respect to any Person, any and all present or future taxes, charges, fees, levies or other assessments (including income, gross receipts, profits, withholding, excise, property, sales, use, license, occupation and franchise taxes and including any related interest, penalties or other additions) imposed by any jurisdiction or taxing authority (whether foreign or domestic) under the laws of which such Person is organized.

“Termination Day” means: (a) each day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied or (b) each day that occurs on or after the Facility Termination Date.

“Termination Event” has the meaning specified in Exhibit V to the Agreement.  For the avoidance of doubt, any Termination Event that occurs shall be deemed to be continuing unless and until such Termination Event has been waived in accordance with the terms of the Agreement.

“Total Reserves” means, at any time the sum of: (a) the Yield Reserve, plus (b) the greater of (i) the sum of the Loss Reserve plus the Dilution Reserve and (ii) the sum of the Minimum Dilution Reserve plus the Concentration Reserve.

“Transaction Documents” means this Agreement, the Lock-Box Agreements, each Fee Letter, the Purchase and Sale Agreement, the Subordinated Note, the Performance Guaranty, the Originator Performance Guaranty, the Sales Agency Agreement, any Pledge Agreement, each Certificate of Beneficial Ownership and all other certificates, instruments, reports, notices, agreements and documents executed or delivered under or in connection with this Agreement, in

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each case as the same may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“Transfer Supplement” has the meaning set forth in Section 6.3(c) of this Agreement.

“UCC” means the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction.

“Unmatured Termination Event” means an event that, with the giving of notice or lapse of time, or both, would constitute a Termination Event.

“Weekly Report” means a report substantially in the form of Annex I.

“Yield Reserve” means, on any date, an amount equal to (a) the sum of the Aggregate Capital plus the Adjusted LC Participation Amount at the close of business of the Servicer on such date multiplied by (b)(i) the Yield Reserve Percentage on such date divided by (ii) 1, minus the Yield Reserve Percentage on such date.

“Yield Reserve Percentage” means, at any time the following amount:

1.50 x DSO x (BR + SFR)

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where:

BR=the Base Rate in effect at such time,

DSO=the Days’ Sales Outstanding, and

SFR=the Servicing Fee Rate.

Other Terms. All accounting terms not specifically defined herein shall be construed in accordance with GAAP.  All terms used in Article 9 of the UCC in the State of New York, and not specifically defined herein, are used herein as defined in such Article 9. Unless the context otherwise requires, “or” means “and/or,” and “including” (and with correlative meaning “include” and “includes”) means including without limiting the generality of any description preceding such term.

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EXHIBIT II

CONDITIONS OF PURCHASES

1.Conditions Precedent to Effectiveness.  The effectiveness of this Agreement is subject to the condition precedent that the Administrator and each Purchaser Agent shall (x) be reasonably satisfied that the Administrator and each of the other Secured Parties shall have protections provided for in the Interim Order and, to the extent then entered, the Final Order, including the protection of Section 364(e) of the Bankruptcy Code with respect to any priority or lien granted or debt incurred pursuant to said Interim Order or Final Order and (y) have received, on or before the date hereof, each of the following, each in form and substance (including the date thereof) reasonably satisfactory to the Administrator and each Purchaser Agent:

(a)each of the documents, agreements (in fully executed form), opinions of counsel, certificates and other deliverables listed on the closing memorandum attached as Annex F hereto, in each case, in form and substance acceptable to the Administrator;

(b)evidence of payment by the Seller of all accrued and unpaid fees, costs and expenses to the extent then due and payable on or prior to the date hereof, including any such costs, fees and expenses arising under or referenced in Section 6.4 of the Agreement (as amended hereby) (including all attorney fees that have been invoiced at least one (1) Business Day prior to the date that the Interim Order is entered by the Bankruptcy Court);

(c)a copy of the Interim Order entered by the Bankruptcy Court that is in full force and effect and has not been vacated or reversed, is not subject to a stay, and has not been modified or amended (except for modifications or amendments approved in writing by the Administrator and the Majority Purchaser Agents, in each case, acting in their reasonable discretion); and

(d)evidence that (i) all “first day orders” and all related pleadings intended to be entered on or prior to the entry of the Interim Order (including “a cash management order”) shall have been entered by the Bankruptcy Court and shall be reasonably satisfactory in form and substance to the Administrator and (ii) forms of “second day orders” filed but not yet entered shall be reasonably satisfactory in form and substance to the Administrator, it being understood that drafts approved by counsel to the Administrator prior to the Filing Date are reasonably satisfactory.

2.Conditions Precedent to All Funded Purchases, Issuances of Letters of Credit and Reinvestments.  Each Funded Purchase, including the initial Funded Purchase (but excluding any deemed Funded Purchase pursuant to Section 1.2(e), and the issuance of any Letters of Credit (other than any Letters of Credit issued or deemed issued under the Prior Agreement) and each reinvestment shall be subject to the further conditions precedent that:

(a)in the case of each Funded Purchase and the issuance of any such Letters of Credit, the Servicer shall have delivered to the Administrator and each Purchaser Agent on or before such purchase or issuance, as the case may be, in form and substance satisfactory to the Administrator and each Purchaser Agent, the most recent Information Package to reflect the level of the Aggregate Capital, the LC Participation Amount and related reserves and the calculation

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of the Purchased Interest after such subsequent purchase or issuance, as the case may be, and a completed Purchase Notice or Issuance Notice, as applicable, in the form of Annex B-1 or B-2, as applicable; and

(b)on the date of such Funded Purchase, issuance or reinvestment, as the case may be, the following statements shall be true (and acceptance of the proceeds of such Funded Purchase, issuance or reinvestment shall be deemed a representation and warranty by the Seller that such statements are then true):

(i)the representations and warranties contained in Exhibit III to the Agreement are true and correct in all material respects on and as of the date of such Funded Purchase, issuance or reinvestment, as the case may be, as though made on and as of such date except for representations and warranties which apply as to an earlier date (in which case such representations and warranties shall be true and correct as of such earlier date);

(ii)no event has occurred and is continuing, or would result from such Funded Purchase or issuance, that constitutes a Termination Event or an Unmatured Termination Event; and, in the case of reinvestments, no event has occurred and is continuing or would result from such reinvestment that constitutes a Termination Event;

(iii)the sum of the Aggregate Capital plus the LC Participation Amount, after giving effect to any such Funded Purchase, issuance or reinvestment, as the case may be, shall not exceed the Purchase Limit, and the Purchased Interest shall not exceed 100%; and

(iv)the Facility Termination Date has not occurred.

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EXHIBIT III

REPRESENTATIONS AND WARRANTIES

1.Representations and Warranties of the Seller.  The Seller represents and warrants to the Administrator, each Purchaser Agent and each Purchaser as of the date of execution of this Agreement and as of each other date specified in Section 5 of this Exhibit III that:

(a)Existence and Power.  The Seller is a limited liability company duly formed, validly existing and in good standing under the laws of Delaware, and has all organizational power and all governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is conducted, except where the failure to so do could not reasonably be expected to result in a Material Adverse Effect.

(b)Company and Governmental Authorization, Contravention.  The execution, delivery and performance by the Seller of this Agreement and each other Transaction Document to which it is a party are within the Seller’s organizational powers, have been duly authorized by all necessary organizational action, require no action by or in respect of, or filing with (other than the filing of UCC financing statements and continuation statements), any governmental body, agency or official, and, do not contravene, or constitute a default under, any provision of Applicable Law or regulation or of the operating agreement of the Seller or of any agreement, judgment, injunction, order, decree or other instrument binding upon the Seller or result in the creation or imposition of any lien (other than liens in favor of the Administrator) on assets of the Seller, except as could not reasonably be expected to result in a Material Adverse Effect.

(c)Binding Effect of Agreement.  This Agreement and each other Transaction Document to which it is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether enforceability is considered in a proceeding in equity or at law.

(d)Accuracy of Information.  No information (other than projections, forward looking statements, budgets, estimates and general market data) heretofore furnished by the Seller to the Administrator or any Purchaser Agent in writing pursuant to or in connection with this Agreement or any other Transaction Document contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, when made and in light of the circumstances under which they were made, not materially misleading.

(e)Actions, Suits.  Except (i) as set forth in disclosures publicly filed by the Parent with the SEC as of the date of execution of this Agreement and (ii) the Chapter 11 Cases, there are no actions, suits or proceedings pending or, to the best of the Seller’s knowledge, threatened against or affecting the Seller or any of its properties, in or before any court, arbitrator or other body.

(f)Accuracy of Exhibits; Lock-Box Arrangements.  The names and addresses of all the Lock-Box Banks together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Schedule II to this Agreement, and all Lock-Box Accounts are

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subject to Lock-Box Agreements. All information on each Exhibit, Schedule or Annex to this Agreement or the other Transaction Documents (as updated by the Seller from time to time) is true and complete.  The Seller has delivered a copy of all Lock-Box Agreements to the Administrator.  The Seller has not granted any interest in any Lock-Box Account (or any related lock-box or post office box) to any Person other than the Administrator and, upon delivery to a Lock-Box Bank of the related Lock-Box Agreement, the Administrator will have exclusive ownership and control of the Lock-Box Account at such Lock-Box Bank.

(g)No Material Adverse Effect.  Since the date of formation of Seller as set forth in its certificate of formation, there has been no Material Adverse Effect.

(h)Names and Location.  The Seller has not used any company names, trade names or assumed names other than its name set forth on the signature pages of this Agreement. The Seller is “located” (as such term is defined in the applicable UCC) in Delaware.  The office where the Seller keeps its records concerning the Receivables is at the address of such party set forth on Schedule V hereto.

(i)Margin Stock.  The Seller is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations T, U and X, as issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Purchase will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.

(j)Eligible Receivables.  Each Pool Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance is, as of the date of such calculation, an Eligible Receivable.

(k)Credit and Collection Policy.  The Seller has complied in all material respects with the Credit and Collection Policy with regard to each Receivable originated by such Originator.

(l)Investment Company Act; Not a Covered Fund.  The Seller is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the Seller is not a “covered fund” under the Volcker Rule (Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations implemented thereunder).  In reaching those conclusions, although other statutory or regulatory exemptions may be available under the Investment Company Act, the Seller has relied on Section 3(c)(5) of the Investment Company Act.

(m)Mortgages Covering As-Extracted Collateral.  Except as set forth in Schedule IV, there are no mortgages that are effective as financing statements covering as-extracted collateral and that name any Originator as grantor, debtor or words of similar effect filed or recorded in any jurisdiction.  The Seller may amend Schedule IV from time to time by delivering written notice thereof to the Administrator and each Purchaser Agent, which notice shall include a replacement for Schedule IV.  No mortgage set forth on Schedule IV has a description of property or collateral covered thereby that includes, or purports to include, any Receivables transferred or purported to be transferred under the Transaction Documents, the Lock-Box

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Accounts or any subaccount thereof, other than a mortgage (i) relating to the sale thereof by an Originator to the Seller under the Purchase and Sale Agreement, (ii) relating to the security interest granted to the Administrator under this Agreement, or (iii) that has been released or terminated.

(n)Anti-Money Laundering/International Trade Law Compliance.  (x) No Covered Entity is a Sanctioned Person and (y) no Covered Entity, either in its own right or through any third party, (i) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (ii) does business in or with, or derives any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; or (iii) engages in any dealings or transactions prohibited by any Anti-Terrorism Law, in each case, however, with respect to any Covered Entity that is not the Parent, Cloud Peak or a Subsidiary of Cloud Peak, to the Seller’s knowledge.

(o)Liquidity Coverage Ratio.  The Seller has not issued any LCR Securities, and the Seller is a consolidated subsidiary of Cloud Peak under GAAP.

(p)Certificate of Beneficial Ownership.  The Certificate of Beneficial Ownership executed and delivered to the Administrator and the Purchasers for the Seller on or prior to the Closing Date (if required under the Beneficial Ownership Regulation), as may be provided or updated from time to time in accordance with this Agreement, is accurate, complete and correct as of the Closing Date or such date of delivery or update.

(q)Taxes; Tax Status.  The Seller has (i) timely filed all U.S. federal income and other material tax returns (state and local) required to be filed by it and (ii) paid, or caused to be paid, all material taxes, assessments and other governmental charges, if any, other than such taxes, assessments and other governmental charges being contested in good faith by appropriate proceedings and as to which adequate reserves have been provided in accordance with GAAP.  The Seller is a “disregarded entity” within the meaning of U.S. Treasury Regulation § 301.7701-3 whose owner is a United States person (within the meaning of Section 7701(a)(30) of the Code).

(r)Neither the Seller nor any ERISA Affiliate maintains, contributes to, has an obligation to contribute to, or has any liability with respect to, any Benefit Plan.

2.Representations and Warranties of the Servicer.  The Servicer represents and warrants to the Administrator, each Purchaser Agent and each Purchaser as of the date of execution of this Agreement and as of each other date specified in Section 5 of this Exhibit III that:

(a)Existence and Power.  The Servicer is a limited liability company duly formed, validly existing and in good standing under the laws of its state of organization, and has all company power and all governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is conducted, except where the failure to so do could not reasonably be expected to result in a Material Adverse Effect.

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(b)Company and Governmental Authorization, Contravention.  Subject to the entry by the Bankruptcy Court of (x) the Interim Order at any time prior to the entry of the Final Order and (y) the Final Order thereafter, the execution, delivery and performance by the Servicer of this Agreement and each other Transaction Document to which it is a party are within the Servicer’s organizational powers, have been duly authorized by all necessary organizational action, require no action by or in respect of, or filing with, any governmental body, agency or official other than filings and disclosures made under securities laws, and do not contravene, or constitute a default under, any provision of any material agreement to which it is a party or of any Applicable Law or regulation or of the certificate of formation of the Servicer or of any judgment, injunction, order or decree or agreement or other instrument binding upon the Servicer or result in the creation or imposition of any lien on assets of the Servicer, except as could not reasonably be expected to result in a Material Adverse Effect.

(c)Binding Effect of Agreement.  Subject to the entry by the Bankruptcy Court of (x) the Interim Order at any time prior to the entry of the Final Order and (y) the Final Order thereafter, this Agreement and each other Transaction Document to which it is a party constitutes the legal, valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms.

(d)Accuracy of Information.No information (other than projections, forward looking statements, budgets, estimates and general market data) heretofore furnished in writing by the Servicer or the Administrator or any Purchaser Agent pursuant to or in connection with this Agreement or any Transaction Document contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, when made and in light of the circumstances under which they were made, not materially misleading.

(e)Actions, Suits.  Except (i) as set forth in disclosures publicly filed by the Parent with the SEC as of the date of execution of this Agreement and (ii) the Chapter 11 Cases, there are no actions, suits or proceedings pending or, to the best of the Servicer’s knowledge, threatened against or affecting the Servicer or any of its Affiliates or their respective properties, in or before any court, arbitrator or other body, which could reasonably be expected to have a Material Adverse Effect.

(f)No Material Adverse Effect.  Since the date of the financial statements described in Section 2(i) below, there has been no Material Adverse Effect, other than as arising directly as a result of the Chapter 11 Cases.

(g)Credit and Collection Policy.  The Servicer has complied in all material respects with the Credit and Collection Policy with regard to each Receivable originated by such Originator.

(h)Investment Company Act.  The Servicer is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.

(i)Financial Information.  The balance sheets of the Parent and its consolidated Subsidiaries as of December 31, 2018, and the related statements of income and retained earnings for the fiscal quarter then ended, copies of which have been made publicly available,

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fairly present in all material respects the financial condition of the Parent and its consolidated Subsidiaries as at such date and the results of the operations of the Parent and its consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.

(j)Lockbox Accounts.  On or prior to the Closing Date, the Servicer has transferred and assigned all of its rights, title, and interest in and to, and remedies, powers, and privileges in respect of, the Lock-Box Accounts to the Seller.

(k)Anti-Money Laundering/International Trade Law Compliance.  (x) No Covered Entity is a Sanctioned Person, and (y) no Covered Entity, either in its own right or through any third party, (i) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (ii) does business in or with, or derives any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; or (iii) engages in any dealings or transactions prohibited by any Anti-Terrorism Law, in each case, however, with respect to any Covered Entity that is not the Parent, Cloud Peak or a Subsidiary of Cloud Peak, to the Servicer’s knowledge.

(l)Effectiveness of Orders. The Interim Order at any time prior to the entry of the Final Order and, to the extent then entered, the Final Order, is in full force and effect and has not been vacated or reversed, is not subject to a stay, and has not been modified or amended (other than any amendment or modification approved in writing by the Administrator and the Majority Purchaser Agents in their sole discretion).

(m)Compliance with Orders. The Servicer and each of the other members of the Cloud Peak Group are in compliance in all material respects with the Interim Order at any time prior the entry of the Final Order and, to the extent then entered, the Final Order.

(n)Neither the Servicer nor any ERISA Affiliate maintains, contributes to, has an obligation to contribute to, or has any liability with respect to, any Benefit Plan.

3.Representations, Warranties and Agreements Relating to the Security Interest.  The Seller hereby makes the following representations, warranties and agreements with respect to the Receivables and Related Security as of the date of execution of this Agreement and as of each other date specified in Section 5 of this Exhibit III:

(a)The Receivables.

(i)Creation.  This Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Receivables included in the Receivables Pool in favor of the Administrator (for the benefit of the Secured Parties), which security interest is prior to all other Adverse Claims (other than Permitted Liens), and is enforceable as such as against creditors of and purchasers from the Seller.

(ii)Ownership of Receivables.  The Seller owns and has good and marketable title to the Receivables included in the Receivables Pool and Related Security free and clear of any Adverse Claim (other than Permitted Liens).

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(iii)Perfection and Related Security.  The Seller has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect the sale of the Receivables and Related Security from each Originator to the Seller pursuant to the Purchase and Sale Agreement, and the sale and security interest therein from the Seller to the Administrator under this Agreement.

(b)The Lock-Box Accounts.

(i)Nature of Lock-Box Accounts.  Each Lock-Box Account constitutes a “deposit account” within the meaning of the applicable UCC.

(ii)Ownership.  Each Lock-Box Account is in the name of the Seller, and the Seller owns and has good and marketable title to the Lock-Box Accounts free and clear of any Adverse Claim (other than Permitted Liens).

(iii)Perfection.  The Seller has delivered to the Administrator a fully executed Lock-Box Agreement relating to each Lock-Box Account, pursuant to which each applicable Lock-Box Bank, respectively, has agreed, following the delivery of a notice of control by the Administrator, to comply with all instructions originated by the Administrator (on behalf of the Secured Parties) directing the disposition of funds in such Lock-Box Account without further consent by the Seller or the Servicer.

(c)Priority.

(i)Other than the transfer of the Receivables to the Seller and the Administrator under the Purchase and Sale Agreement and this Agreement, respectively, and/or the security interest granted to the Seller and the Administrator pursuant to the Purchase and Sale Agreement and this Agreement, respectively, neither the Seller nor any Originator has pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Receivables transferred or purported to be transferred under the Transaction Documents, the Lock-Box Accounts or any subaccount thereof, except for any such pledge, grant or other conveyance in respect of Permitted Liens or which has been released or terminated.  Neither any of the Originators nor the Seller has authorized the filing of, or is aware of any financing statements or mortgage against either the Seller, any Originator or any of their properties that include a description of Receivables transferred or purported to be transferred under the Transaction Documents, the Lock-Box Accounts or any subaccount thereof, other than any financing statement (i) relating to the sale thereof by an Originator to the Seller under the Purchase and Sale Agreement, (ii) relating to the security interest granted to the Administrator under this Agreement, (iii) relating to a Permitted Lien or (iv) that has been released or terminated.

(ii)The Seller is not aware of any judgment, ERISA or tax lien filings against the Seller, the Servicer or any Originator other than any judgment, ERISA or tax lien filing against the Servicer or any Originator that (A) other than may arise in connection with the Specified Tax, has not been outstanding for greater than 30 days from the earlier of such Person’s knowledge or notice thereof, (B) other than may arise in connection

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with the Specified Tax, is less than $250,000 and (C) does not otherwise give rise to a Termination Event under clause (k) of Exhibit V to the Agreement.

(iii)The Lock-Box Accounts are not in the name of any person other than the Seller or the Administrator.  Neither the Seller nor the Servicer has consented to any bank maintaining such account to comply with instructions of any person other than the Administrator.

(d)Survival of Supplemental Representations.  Notwithstanding any other provision of this Agreement or any other Transaction Document, the representations contained in this Section shall be continuing, and remain in full force and effect until such time as the Purchased Interest and all other obligations under this Agreement have been finally and fully paid and performed.

4.Ordinary Course of Business.  The Seller represents and warrants that each remittance of Collections by or on behalf of the Seller to the Administrator and the Purchasers under this Agreement will have been (i) in payment of a debt incurred by the Seller in the ordinary course of business or financial affairs of the Seller and (ii) made in the ordinary course of business or financial affairs of the Seller.

5.Reaffirmation of Representations and Warranties.  On the date of each Purchase hereunder, and on the date each Information Package or Interim Report is delivered to the Administrator, any Purchaser Agent or any Purchaser hereunder, the Seller and the Servicer, by accepting the proceeds of such Purchase and/or the provision of such Information Package or Interim Report, shall each be deemed to have certified that (i) all representations and warranties of the Seller and the Servicer, as applicable, described in this Exhibit III, as from time to time amended in accordance with the terms hereof, are correct on and as of such day as though made on and as of such day, except for representations and warranties which apply as to an earlier date (in which case such representations and warranties shall be true and correct as of such date), and (ii) no event has occurred and is continuing, or would result from any such Purchase, which constitutes a Termination Event or an Unmatured Termination Event.

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EXHIBIT IV
COVENANTS

6.Covenants of the Seller.  At all times from the Closing Date until the Final Payout Date:

(a)Financial Reporting.  The Seller will maintain a system of accounting established and administered in accordance with generally accepted accounting principles as in effect in the appropriate jurisdiction, and the Seller (or the Servicer on its behalf) shall furnish to the Administrator and each Purchaser Agent:

(i)Annual Reporting.  Promptly upon completion and in no event later than 120 days after the close of each fiscal year of the Seller, annual unaudited financial statements of the Seller certified by a designated financial or other officer of the Seller.

(ii)Reports.  (A) As soon as available and in any event not later than two Business Days prior to the Settlement Date, an Information Package as of the most recently completed calendar month, (B) at any time upon ten Business Days’ written notice from the Administrator (which notice may be delivered, revoked and reinstated at any time at the Administrator’s sole discretion), a Weekly Report as of the most recently completed calendar week, and (C) at any time upon seven Business Days’ written notice from the Administrator (which notice may be delivered, revoked and reinstated at any time at the Administrator’s sole discretion), a Daily Report on each Business Day as of the date that is one Business Day prior to such date.

(iii)Other Information.  Such other information (including non-financial information) as the Administrator or any Purchaser Agent may from time to time reasonably request, within a reasonable time after such request is received.

(iv)Quarterly Financial Statements of the Parent.  As soon as available and in no event later than 45 days following the end of each of the first three fiscal quarters in each of the Parent’s fiscal years, (i) the unaudited consolidated balance sheet and statements of income of the Parent and its consolidated Subsidiaries as at the end of such fiscal quarter and the related unaudited consolidated statements of earnings and cash flows for such fiscal quarter and for the elapsed portion of the fiscal year ended with the last day of such fiscal quarter, in each case setting forth comparative figures for the corresponding fiscal quarter in the prior fiscal year, all of which shall be certified by the chief financial officer, the treasurer or any financial officer (including a controller) of the Parent that they fairly present in all material respects, in accordance with generally accepted accounting principles as in effect in the United States consistently applied, the financial condition of the Parent and its consolidated Subsidiaries as of the dates indicated and the results of their operations for the periods indicated, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) management’s discussion and analysis of the important operational and financial developments during such fiscal quarter.

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(v)Annual Financial Statements of the Parent.  Within 90 days after the close of each of the Parent’s fiscal years, the consolidated balance sheet of the Parent and its consolidated Subsidiaries as at the end of such fiscal year and the related consolidated statements of earnings and cash flows for such fiscal year setting forth comparative figures for the preceding fiscal year, all reported on by independent certified public accountants of recognized national standing to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with generally accepted accounting principles as in effect in the United States consistently applied.

(vi)Other Reports and Filings.  Promptly (but in any event within ten days) after the filing or delivery thereof, copies of all financial information, proxy materials and reports, if any, which the Parent or any of its consolidated Subsidiaries shall publicly file with the SEC or deliver to holders (or any trustee, agent or other representative therefor) of any of its material indebtedness pursuant to the terms of the documentation governing the same.

(vii)Electronic Delivery.  Notwithstanding anything herein to the contrary, any financial information, proxy statements or other material required to be delivered pursuant to this paragraph (a) shall be deemed to have been furnished to each of the Administrator and each Purchaser Agent on the date that such report, proxy statement or other material is posted on the SEC’s website at www.sec.gov or on the Parent’s website at www.cloudpeakenergy.com.

(b)Notices.  The Seller (or the Servicer on its behalf) will notify the Administrator and each Purchaser Agent in writing of any of the following events promptly upon (but in no event later than three Business Days after) a Financial Officer or other officer of Cloud Peak or the Seller who is involved in the on-going administration of the transactions contemplated under the Transaction Documents learning of the occurrence thereof, with such notice describing the same, and if applicable, the steps being taken by the Person(s) affected with respect thereto:

(i)Notice of Termination Events or Unmatured Termination Events.  A statement of a Financial Officer of the Seller setting forth details of any Termination Event or Unmatured Termination Event and the action which the Seller proposes to take with respect thereto.

(ii)Representations and Warranties.  The failure of any representation or warranty to be true in any material respect (when made or at any time thereafter) with respect to the Receivables included in the Receivables Pool.

(iii)Litigation.  The institution of any litigation, arbitration proceeding or governmental proceeding which may have a Material Adverse Effect.

(iv)Adverse Claim.  (A) Any Person shall obtain an Adverse Claim (other than a Permitted Lien) upon the Pool Receivables or Collections with respect thereto, (B) any Person other than the Seller, the Servicer or the Administrator shall obtain any rights

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or direct any action with respect to any Lock-Box Account (or related lock-box or post office box) or (C) any Obligor shall receive any change in payment instructions with respect to Pool Receivable(s) from a Person other than the Servicer or the Administrator.

(v)ERISA and Other Claims.  If Seller or any ERISA Affiliate establishes or otherwise becomes obligated to maintain or contribute to, or incurs any liability to, any Benefit Plan, and thereafter, promptly after the filing or receiving thereof, copies of all reports and notices that the Seller or any ERISA Affiliate files under ERISA with the Internal Revenue Service, the Pension Benefit Guaranty Corporation or the U.S. Department of Labor or that the Seller or any ERISA Affiliate receives from any of the foregoing with respect to any Benefit Plan or from any multiemployer plan (within the meaning of Section 4001(a)(3) of ERISA) to which the Seller or any of its ERISA Affiliates is or was, within the preceding five years, a contributing employer, in each case in respect of any reportable event (as defined in ERISA) that could, in the aggregate, result in the imposition of liability on the Seller and/or any such ERISA Affiliate that could reasonably be expected to have a Material Adverse Effect.

(c)Conduct of Business.  The Seller will carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted and will do all things necessary to remain duly organized, validly existing and in good standing as a domestic organization in its jurisdiction of organization and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted if the failure to have such authority could reasonably be expected to have a Material Adverse Effect.

(d)Compliance with Laws.  The Seller will comply with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject if the failure to comply could reasonably be expected to have a Material Adverse Effect.

(e)Furnishing of Information and Inspection of Receivables.  The Seller will furnish to the Administrator, the LC Bank and each Purchaser Agent from time to time such information with respect to the Pool Receivables as the Administrator, the LC Bank or such Purchaser Agent may reasonably request.  The Seller will, at the Seller’s expense, at any time and from time to time during regular business hours with reasonable prior written notice (i) permit the Administrator, the LC Bank or any Purchaser Agent, or their respective agents or representatives, (A) to examine and make copies of and abstracts from all books and records relating to the Pool Receivables or other Pool Assets and (B) to visit the offices and properties of the Seller for the purpose of examining such books and records, and to discuss matters relating to the Pool Receivables, other Pool Assets or the Seller’s performance hereunder or under the other Transaction Documents to which it is a party with any of the officers, directors, employees or independent public accountants of the Seller (provided that representatives of the Seller are present during such discussions) having knowledge of such matters; provided that the Seller shall be required to reimburse the Administrator, the LC Bank and Purchaser Agents for only two (2) such examinations and visits per year, unless a Termination Event has occurred and is continuing and (ii) without limiting the provisions of clause (i) above, from time to time during regular business hours, at the Seller’s expense, upon reasonable prior written notice from the Administrator, the LC Bank and the Purchaser Agents, permit certified public accountants or other auditors acceptable to the Administrator to conduct a review of its books and records with

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respect to the Pool Receivables; provided that the Seller shall be required to reimburse the Administrator and Purchaser Agents for only two (2) such audits per year, in either case unless a Termination Event has occurred and is continuing.

(f)Payments on Receivables, Lock-Box Accounts.  The Seller (or the Servicer on its behalf) will, and will cause each Originator and the Servicer to, at all times instruct all Obligors to deliver payments on the Pool Receivables to a Lock-Box Account.  The Seller (or the Servicer on its behalf) will, and will cause each Originator to, at all times, maintain such books and records necessary to identify Collections received from time to time on Receivables and to segregate such Collections from other property of the Servicer and the Originator.  If any such payments or other Collections are received by the Seller or any Originator, Seller shall (or shall cause such Person to) hold such payments in trust for the benefit of the Administrator and the Purchasers and promptly (but in any event within two Business Days after receipt) remit such funds into a Lock-Box Account.  The Seller will cause each Lock-Box Bank to comply with the terms of each applicable Lock-Box Agreement.  Except as set forth in the following paragraphs, the Seller will not permit the funds other than Collections on Pool Receivables and other Pool Assets to be deposited into any Lock-Box Account.  If such funds are nevertheless deposited into any Lock-Box Account, the Seller shall (or shall cause the Servicer to) promptly identify such funds for segregation.  Except as set forth in the following paragraphs, the Seller will not, and will not permit the Servicer, any Originator or other Person to, commingle Collections or other funds to which the Administrator, any Purchaser Agent or any Purchaser is entitled with any other funds.  The Seller shall only add or replace, and shall only permit the Originator to add or replace, a Lock-Box Bank (or the related lock-box or post office box), or Lock-Box Account to those listed on Schedule II to this Agreement, if the Administrator has received notice of such addition or replacement, a copy of any new Lock-Box Agreement and an executed and acknowledged copy of a Lock-Box Agreement in form and substance acceptable to the Administrator from any such new Lock-Box Bank.  The Seller shall only terminate a Lock-Box Bank or close a Lock-Box Account (or the related lock-box or post office box), upon 30 days’ advance notice to and with the prior written consent of the Administrator.

(g)Sales, Liens, etc.  Except as otherwise provided herein, the Seller will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim (other than Permitted Liens) upon (including, without limitation, the filing of any financing statement) or with respect to, any Pool Receivable or other Pool Asset, or assign any right to receive income in respect thereof.

(h)Extension or Amendment of Pool Receivables.  Except as otherwise permitted in Section 4.2 of this Agreement, the Seller will not extend, amend or otherwise modify the terms of any Pool Receivable, other than in accordance with the Credit and Collection Policy, or amend, modify or waive in material respect any term or condition of any Contract related thereto, without the prior written consent of the Administrator.  The Seller shall at its expense, timely perform and comply with all material provisions, covenants and other promises, if any, required to be observed by it under the Contracts related to the Pool Receivables, and timely and fully comply in all material respects with the Credit and Collection Policy with regard to each Receivable and the related Contract.

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(i)Change in Business.  The Seller will not (i) make any change in the character of its business, which change would materially and adversely impair the collectibility of any Pool Receivable or (ii) make any change in any Credit and Collection Policy that could reasonably be expected to materially adversely affect the collectibility of the Pool Receivables, the enforceability of any related Contract or its ability to perform its obligations under the related Contract or the Transaction Documents, in the case of either (i) or (ii) above, without the prior written consent of the Administrator.  The Seller shall not make any change in any Credit and Collection Policy without giving prior written notice thereof to the Administrator.

(j)Fundamental Changes.  The Seller shall not, without the prior written consent of the Administrator and the Majority Purchaser Agents, permit (i) itself to merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to, any Person (ii) itself to undertake any division of its rights, assets, obligations, or liabilities pursuant to a plan of division or otherwise pursuant to Applicable Law or (iii) a Change of Control described in clause (a) of the definition thereof.  The Seller shall provide the Administrator and each Purchaser Agent with at least 30 days’ prior written notice before making any change in the Seller’s name, location or making any other change in the Seller’s identity or corporate structure that could impair or otherwise render any UCC financing statement filed in connection with this Agreement “seriously misleading” as such term (or similar term) is used in the applicable UCC; each notice to the Administrator and the Purchaser Agents pursuant to this sentence shall set forth the applicable change and the proposed effective date thereof.  The Seller will also maintain and implement (or cause the Servicer to maintain and implement) administrative and operating procedures (including an ability to recreate records evidencing Pool Receivables and related Contracts in the event of the destruction of the originals thereof), and keep and maintain (or cause the Servicer to keep and maintain) all documents, books, records, computer tapes and disks and other information reasonably necessary or advisable in the reasonable discretion of the Seller for the collection of all Pool Receivables (including records adequate to permit the daily identification of each Pool Receivable and all Collections of and adjustments to each existing Pool Receivable).

(k)Change in Payment Instructions to Obligors.  The Seller shall not (and shall not permit any Originator to) add to, replace or terminate any of the Lock-Box Accounts (or any related lock-box or post office box) listed in Schedule II hereto or make any change in its (or their) instructions to the Obligors regarding payments to be made to the Lock-Box Accounts (or any related lock-box or post office box), unless the Administrator shall have received (x) prior written notice of such addition, termination or change and (y) signed and acknowledged Lock-Box Agreements with respect to such new Lock-Box Accounts (or any related lock-box or post office box).

(l)Ownership Interest, Etc.  The Seller shall (and shall cause the Servicer to), at its expense, take all action necessary or desirable to establish and maintain a valid and enforceable first priority perfected undivided percentage ownership or security interest, to the extent of the Purchased Interest, in the Pool Receivables, the Related Security and Collections with respect thereto, and a first priority perfected security interest in the Pool Assets, in each case free and clear of any Adverse Claim (other than Permitted Liens), in favor of the Administrator (on behalf of the Secured Parties), including taking such action to perfect, protect or more fully evidence

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the interest of the Administrator (on behalf of the Secured Parties) as the Administrator or any Purchaser Agent, may reasonably request.

(m)Certain Agreements.  Without the prior written consent of the Administrator and the Majority Purchaser Agents, the Seller will not amend, modify, waive, revoke or terminate any Transaction Document to which it is a party or any provision of the Seller’s organizational documents.

(n)Restricted Payments.  (i)  Except pursuant to clause (ii) below, the Seller will not: (A) purchase or redeem any shares of its membership interest, (B) declare or pay any dividend or set aside any funds for any such purpose, (C) prepay, purchase or redeem any Debt, (D) lend or advance any funds or (E) repay any loans or advances to, for or from any of its Affiliates (the amounts described in clauses (A) through (E) being referred to as “Restricted Payments”).

(ii)Subject to the limitations set forth in clause (iii) below, the Seller may make Restricted Payments so long as such Restricted Payments are made only in one or more of the following ways: (A) the Seller may make cash payments (including prepayments) on the Subordinated Note in accordance with their respective terms, and (B) if no amounts are then outstanding under any Subordinated Note, the Seller may declare and pay dividends.

(iii)The Seller may make Restricted Payments only out of the funds, if any, it receives pursuant to Sections 1.4(b)(ii) and (iv) and 1.4(d) of this Agreement. Furthermore, the Seller shall not pay, make or declare: (A) any dividend if, after giving effect thereto, the Tangible Net Worth of the Seller would be less than $6,000,000, or (B) any Restricted Payment (including any dividend) if, after giving effect thereto, any Termination Event or Unmatured Termination Event shall have occurred and be continuing.

(o)Other Business.  The Seller will not: (i) engage in any business other than the transactions contemplated by the Transaction Documents, (ii) create, incur or permit to exist any Debt of any kind (or cause or permit to be issued for its account any letters of credit or bankers’ acceptances) other than pursuant to this Agreement or the Subordinated Note, or (iii) form any Subsidiary or make any investments in any other Person; provided, that the Seller shall be permitted to incur minimal obligations to the extent necessary for the day-to-day operations of the Seller (such as expenses for stationery, audits, maintenance of legal status, etc.).

(p)Use of Seller’s Share of Collections.  The Seller shall apply the Seller’s Share of Collections to make payments in the following order of priority: (i) the payment of its expenses (including all obligations payable to the Purchasers, the Purchaser Agents and the Administrator under this Agreement and under the Fee Letters), (ii) the payment of accrued and unpaid interest on the Subordinated Note and (iii) other legal and valid corporate purposes.

(q)Tangible Net Worth.  The Seller will not permit its Tangible Net Worth, at any time, to be less than $6,000,000.

(r)Anti-Money Laundering/International Trade Law Compliance.  The Seller will not become a Sanctioned Person.  Neither the Parent or its Subsidiaries, either in its own right or

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through any third party, will (a) have any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (b) do business in or with, or derive any of its Income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; (c) engage in any dealings or transactions prohibited by any Anti-Terrorism Law or (d) use the proceeds of any Purchase to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law.  The funds used to repay Capital will not be derived from any activity in violation of any Anti-Terrorism Law.  The Seller shall comply with all Anti-Terrorism Laws. The Seller shall provide to the Administrator and each Purchaser Agent such information and documentation as may reasonably be requested by the Administrator and such Purchaser Agent from time to time for purposes of compliance by the Administrator and such Purchaser Agent with Applicable Laws (including without limitation the PATRIOT Act and other “know your customer” and anti-money laundering rules and regulations).

(s)Liquidity Coverage Ratio.  The Seller shall not issue any LCR Security.

(t)Certificate of Beneficial Ownership and Other Additional Information.  The Seller shall provide to the Administrator and the Purchasers: (i) a Certificate of Beneficial Ownership or update to a previously delivered Certificate of Beneficial Ownership, promptly upon request of the Administrator at any time when required under the Beneficial Ownership Regulation or when the individual(s) to be identified as a Beneficial Owner have changed; and (ii) such other information and documentation as may reasonably be requested by the Administrator or any Purchaser from time to time for purposes of compliance by the Administrator or such Purchaser with Applicable Laws (including, without limitation, the PATRIOT Act and other “know your customer” and anti-money laundering rules and regulations), and any policy or procedure implemented by the Administrator or such Purchaser to comply therewith.

(u)Taxes; Tax Status.  The Seller shall (i) timely file all U.S. federal income and other material tax returns (state and local) required to be filed by it and (ii) pay, or cause to be paid, all material taxes, assessments and other governmental charges, if any, other than such taxes, assessments and other governmental charges being contested in good faith by appropriate proceedings and as to which adequate reserves have been provided in accordance with GAAP.  No action shall be taken that would result in (and no omission shall be made which omission would result in) the Seller being treated as other than a “disregarded entity” within the meaning of U.S. Treasury Regulation § 301.7701-3 whose owner is a United States person (within the meaning of Section 7701(a)(30) of the Code).

7.Covenants of the Servicer.  At all times from the Closing Date until the Final Payout Date:

(a)Financial Reporting.  The Servicer will maintain a system of accounting established and administered in accordance with generally accepted accounting principles as in effect in the appropriate jurisdiction, and the Servicer shall furnish or cause to be furnished to the Administrator and each Purchaser Agent:

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(i)Reports.  (A) As soon as available and in any event not later than two Business Days prior to the Settlement Date, an Information Package as of the most recently completed calendar month, (B) at any time upon ten Business Days’ written notice from the Administrator (which notice may be delivered, revoked and reinstated at any time at the Administrator’s sole discretion), a Weekly Report as of the most recently completed calendar week, and (C) at any time upon seven Business Days’ written notice from the Administrator (which notice may be delivered, revoked and reinstated at any time at the Administrator’s sole discretion), a Daily Report on each Business Day as of the date that is one Business Day prior to such date.

(ii)Other Information.  Such other information (including non-financial information) as the Administrator or any Purchaser Agent may from time to time reasonably request, within a reasonable time after such request is received.

(iii)Compliance Certificates.  (a) Concurrently with each delivery by the Seller of the Parent’s quarterly and annual financial statements pursuant to Sections 1(a)(iv) and 1(a)(v) of this Exhibit IV, a compliance certificate substantially in the form attached as Annex G signed by its chief accounting officer or treasurer solely in their capacities as officers of Cloud Peak stating that no Termination Event or Unmatured Termination Event has occurred and is continuing, or if any Termination Event or Unmatured Termination Event has occurred and is continuing, stating the nature and status thereof.

(b)Notices.  The Servicer will notify the Administrator and each Purchaser Agent in writing of any of the following events promptly upon (but in no event later than three Business Days after) a Financial Officer or other officer of Cloud Peak or the Servicer who is involved in the on-going administration of the transactions contemplated under the Transaction Documents learning of the occurrence thereof, with such notice describing the same, and if applicable, the steps being taken by the Person(s) affected with respect thereto:

(i)Notice of Termination Events or Unmatured Termination Events.  A statement of the Financial Officer of the Servicer setting forth details of any Termination Event or Unmatured Termination Event and the action which the Servicer proposes to take with respect thereto.

(ii)Representations and Warranties.  The failure of any representation or warranty to be true in any material respect (when made or at any time thereafter) with respect to the Pool Receivables.

(iii)Litigation.  The institution of any litigation, arbitration proceeding or governmental proceeding which could reasonably be expected to have a Material Adverse Effect.

(iv)Adverse Claim.  (A) Any Person shall obtain an Adverse Claim (other than a Permitted Lien) upon the Pool Receivables or Collections with respect thereto, (B)

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any Person other than the Seller, the Servicer or the Administrator shall obtain any rights or direct any action with respect to any Lock-Box Account (or related lock-box or post office box) or (C) any Obligor shall receive any change in payment instructions with respect to Pool Receivable(s) from a Person other than the Servicer or the Administrator.

(v)Name Changes.  At least ten days before any change in any Originator’s or the Seller’s name or any other change requiring the amendment of UCC financing statements, a notice setting forth such changes and the effective date thereof.

(vi)Material Adverse Change.  A material adverse change in the business, operations, property or financial or other condition of any Originator, the Servicer or the Seller (other than the commencement and continuation of the Chapter 11 Cases in and of itself).

(vii)Bankruptcy Court Filings. All pleadings, motions and other documents directly related to this Agreement or any other Transaction Document prior to being filed (and if impracticable, then promptly after being filed) on behalf of Cloud Peak or any of its Affiliates with the Bankruptcy Court, it being agreed that the Servicer shall be deemed in compliance with this covenant if it uses good faith efforts to comply; provided, however that the Servicer shall not be required to deliver any such pleading, motion or other document that it is impracticable to provide before filing to the extent it is accessible to the Administrator or its counsel on the electronic docket maintained for the Chapter 11 Cases; provided, further that this clause (vii) shall not require delivery of any sealed documents or unredacted versions of documents for which any member of the Cloud Peak Group is seeking or intends to seek sealed treatment, but shall instead require delivery of reasonably complete summaries of the content of any such sealed documents and redacted versions of any such documents for which sealed treatment is sought or intended to be sought (excluding any content sought or intended to be sought to be sealed or redacted).

(c)Conduct of Business.  The Servicer will do all things necessary to remain duly organized, validly existing and in good standing as a domestic limited liability company in its jurisdiction of formation and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted if the failure to have such authority could reasonably be expected to have a Material Adverse Effect.

(d)Compliance with Laws.  The Servicer will comply with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject if the failure to comply could reasonably be expected to have a Material Adverse Effect.

(e)Furnishing of Information and Inspection of Receivables.  The Servicer will furnish to the Administrator and each Purchaser Agent from time to time such information with respect to the Pool Receivables as the Administrator or such Purchaser Agent may reasonably request.  The Servicer will, at the Servicer’s expense, at any time and from time to time during regular business hours with reasonable prior written notice (i) permit the Administrator or any Purchaser Agent, or their respective agents or representatives, (A) to examine and make copies of and abstracts from all books and records relating to the Pool Receivables or other Pool Assets

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and (B) to visit the offices and properties of the Servicer for the purpose of examining such books and records, and to discuss matters relating to the Pool Receivables, other Pool Assets or the Servicer’s performance hereunder or under the other Transaction Documents to which it is a party with any of the officers, directors, employees or independent public accountants of the Servicer (provided that representatives of the Servicer are present during such discussions) having knowledge of such matters; provided that the Servicer shall be required to reimburse the Administrator and Purchaser Agents for only two (2) such examinations and visits per year, in either case unless a Termination Event has occurred and is continuing and (ii) without limiting the provisions of clause (i) above, during regular business hours, at the Servicer’s expense, upon reasonable prior written notice from the Administrator, permit certified public accountants or other auditors acceptable to the Administrator and the Purchaser Agents to conduct, a review of its books and records with respect to the Pool Receivables; provided that the Servicer shall be required to reimburse the Administrator and Purchaser Agents for only two (2) such audits per year, unless a Termination Event has occurred and is continuing.

(f)Payments on Receivables, Lock-Box Accounts.  The Servicer will at all times instruct all Obligors to deliver payments on the Pool Receivables to a Lock-Box Account.  The Servicer will, at all times, maintain such books and records necessary to identify Collections received from time to time on Receivables and to segregate such Collections from other property of the Servicer and the Originators.  If any such payments or other Collections are received by the Servicer, it shall hold such payments in trust for the benefit of the Administrator and the Purchasers and promptly (but in any event within two Business Days after receipt) remit such funds into a Lock-Box Account.  The Servicer will cause each Lock-Box Bank to comply with the terms of each applicable Lock-Box Agreement.  Except as set forth in the following paragraphs, the Servicer will not permit the funds other than Collections on Pool Receivables and other Pool Assets to be deposited into any Lock-Box Account.  If such funds are nevertheless deposited into any Lock-Box Account, the Servicer will promptly identify such funds for segregation.  The Servicer will not commingle Collections or other funds to which the Administrator or any other Secured Party is entitled hereunder with any other funds.  The Servicer shall only add or replace, a Lock-Box Bank (or the related lock-box or post office box), or Lock-Box Account to those listed on Schedule II to this Agreement, if the Administrator has received notice of such addition or replacement, a copy of any new Lock-Box Agreement and an executed and acknowledged copy of a Lock-Box Agreement in form and substance acceptable to the Administrator from any such new Lock-Box Bank.  The Servicer shall only terminate a Lock-Box Bank or close a Lock-Box Account (or the related lock-box or post office box), upon 30 days’ advance notice to and with the prior written consent of the Administrator.

(g)Extension or Amendment of Pool Receivables.  Except as otherwise permitted in Section 4.2 of this Agreement, the Servicer will not extend, amend or otherwise modify the terms of any Pool Receivable, or amend, modify or waive in any material respect any term or condition of any Contract related thereto, other than in accordance with the Credit and Collection Policy, without the prior written consent of the Administrator. The Servicer shall at its expense, timely perform and comply with all material provisions, covenants and other promises required to be observed by it under the Contracts related to the Pool Receivables to the same extent as it would had the Pool Receivables not been sold to the Seller, and timely and fully comply in all material respects with the Credit and Collection Policy with regard to each Pool Receivable and the related Contract.

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(h)           Change in Business.  The Servicer will not (i) make any change in the character of its business, which change would materially and adversely impair the collectibility of any Pool Receivable or (ii) make any change in any Credit and Collection Policy that could reasonably be expected to materially and adversely affect the collectibility of the Pool Receivables, the enforceability of any related Contract or its ability to perform its obligations under the related Contract or the Transaction Documents, in the case of either (i) or (ii) above, without the prior written consent of the Administrator; provided that the commencement and continuation of the Chapter 11 Cases in and of itself shall not be deemed a violation of this paragraph (h).  The Servicer shall not make any material change in any Credit and Collection Policy without giving prior written notice thereof to the Administrator.

(i)            Records.  The Servicer will maintain and implement administrative and operating procedures (including an ability to recreate records evidencing Pool Receivables and related Contracts in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records, computer tapes and disks and other information reasonably necessary or advisable for the collection of all Pool Receivables (including records adequate to permit the daily identification of each Pool Receivable and all Collections of and adjustments to each existing Pool Receivable).

(j)            Change in Payment Instructions to Obligors.  The Servicer shall not add to, replace or terminate any of the Lock-Box Accounts (or any related lock-box or post office box) listed in Schedule II hereto or make any change in its instructions to the Obligors regarding payments to be made to the Lock-Box Accounts (or any related lock-box or post office box), unless the Administrator shall have received (x) prior written notice of such addition, termination or change and (y) signed and acknowledged Lock-Box Agreements with respect to such new Lock-Box Accounts (or any related lock-box or post office box).

(k)           Ownership Interest, Etc.  The Servicer shall, at its expense, take all action necessary or desirable to establish and maintain a valid and enforceable first priority perfected undivided percentage ownership or security interest, to the extent of the Purchased Interest, in the Pool Receivables, the Related Security and Collections with respect thereto, and a first priority perfected security interest in the Pool Assets, in each case free and clear of any Adverse Claim (other than Permitted Liens) in favor of the Administrator (on behalf of the Secured Parties), including taking such action to perfect, protect or more fully evidence the interest of the Administrator (on behalf of the Secured Parties) as the Administrator or any Purchaser Agent, may reasonably request.  In order to evidence the interests of the Administrator under this Agreement, the Servicer shall, from time to time take such action, or execute and deliver such instruments as may be necessary (including, without limitation, such actions as are reasonably requested by the Administrator or any Purchaser Agent) to maintain and perfect, as a first-priority interest, the Administrator’s security interest in the Receivables, Related Security and Collections.  The Servicer shall, from time to time and within the time limits established by law, prepare and present to the Administrator for the Administrator’s authorization and approval, all financing statements (including fixture filings or as extracted collateral filings), amendments, continuations or initial financing statements in lieu of a continuation statement, or other filings necessary to continue, maintain and perfect the Administrator’s security interest as a first-priority interest.  The Administrator’s approval of such filings shall authorize the Servicer to file such financing statements under the UCC without the signature of the Seller, any Originator or the

IV-11

Administrator where allowed by Applicable Law.  Notwithstanding anything else in the Transaction Documents to the contrary, the Servicer shall not have any authority to file a termination, partial termination, release, partial release, or any amendment that deletes the name of a debtor or excludes collateral of any such financing statements, without the prior written consent of the Administrator.

(l)            Further Assurances; Change in Name or Jurisdiction of Origination, etc.  The Servicer hereby authorizes and hereby agrees from time to time, at its own expense, promptly to execute (if necessary) and deliver all further instruments and documents, and to take all further actions, that may be necessary or desirable, or that the Administrator may reasonably request, to perfect, protect or more fully evidence the purchases made under this Agreement and/or security interest granted pursuant to this Agreement or any other Transaction Document, or to enable the Administrator (on behalf of the Secured Parties) to exercise and enforce their respective rights and remedies under this Agreement or any other Transaction Document.  Without limiting the foregoing, the Servicer hereby authorizes, and will, upon the request of the Administrator, at the Servicer’s own expense, execute (if necessary) and file such financing or continuation statements, or amendments thereto, and such other instruments and documents, that may be necessary or desirable, or that the Administrator may reasonably request, to perfect, protect or evidence any of the foregoing.

(m)          Anti-Money Laundering/International Trade Law Compliance.  The Servicer will not become a Sanctioned Person.  Neither the Parent or its Subsidiaries, either in its own right or through any third party, will (a) have any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (b) do business in or with, or derive any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; (c) engage in any dealings or transactions prohibited by any Anti-Terrorism Law or (d) use the proceeds of any Purchase to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law.  The funds used to repay Capital will not be derived from any activity in violation of any Anti-Terrorism Law.  The Servicer shall comply with all Anti-Terrorism Laws.  The Servicer shall promptly notify the Administrator and each Purchaser Agent in writing upon the occurrence of a Reportable Compliance Event. The Servicer shall provide to the Administrator and each Purchaser Agent such information and documentation as may reasonably be requested by the Administrator and such Purchaser Agent from time to time for purposes of compliance by the Administrator and such Purchaser Agent with Applicable Laws (including without limitation the PATRIOT Act and other “know your customer” and anti-money laundering rules and regulations), and any policy or procedure implemented by the Administrator and such Purchaser Agent to comply therewith.

(n)           No Superpriority Claims. The Servicer will not, and will not permit any of its Affiliates to, permit to exist any Superpriority Claim against any member of the Cloud Peak Operating Group that is pari passu with or senior to the Superpriority Claims granted to the Purchasers under the Transaction Documents, other than with respect to the Superpriority Claims granted in connection with any Eligible DIP Facility and the “Carve-Out” (as defined in the Financing Orders).

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(o)           No Surcharge.  The Servicer will not, and will not permit any of its Affiliates to, assert any charges under Section 506(c) of the Bankruptcy Code against any Pool Assets.

(p)           Pledge Agreement. The Servicer (as the parent of the Seller) shall promptly (within ten Business Days) upon the request of the Administrative Agent enter into a Pledge Agreement in favor of the Administrative Agent and cause the filing of any related financing statements, in each case, in form and substance acceptable to the Administrative Agent.

8.             Separate Existence.  Each of the Seller and the Servicer hereby acknowledges that the Purchasers and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from Cloud Peak, the Originators and their respective Affiliates.  Therefore, from and after the date hereof, each of the Seller and the Servicer shall take all steps specifically required by this Agreement to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of Cloud Peak, the Originators and any other Person, and is not a division of Cloud Peak, the Originators or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, each of the Seller and the Servicer shall take such actions as shall be required in order that:

(a)           The Seller will be a limited liability company whose primary activities are restricted in its operating agreement to: (i) purchasing or otherwise acquiring from the Originators, owning, holding, granting security interests or selling interests in Pool Assets, (ii) entering into agreements for the selling and servicing of the Receivables Pool, and (iii) conducting such other activities as it deems necessary or appropriate to carry out its primary activities;

(b)           The Seller shall not engage in any business or activity, or incur any indebtedness or liability (including, without limitation, any assumption or guaranty of any obligation of Cloud Peak, any Originator or any Affiliate thereof), other than as expressly permitted by the Transaction Documents;

(c)           (i) Not less than one member of the Seller’s board of managers or other governing body (the “Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than the Independent Director), officer, employee, member, manager, attorney or partner of Cloud Peak, Seller or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with Cloud Peak, Seller or any of their Affiliates; (3) a person or other entity controlling, controlled by or under common control with any such equity holder, partner, member, manager customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, member, manager, partner, customer, supplier or other person and (B) who has (x) prior experience as an independent director for a corporation or an independent manager of a limited liability company whose charter documents required the unanimous consent of all independent director or independent managers thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating

IV-13

to bankruptcy and (y) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.  Under this clause (c), the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.  (ii) The operating agreement of the Seller shall provide that: (A) the Seller’s board of managers or other governing body shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Seller unless the Independent Director shall approve the taking of such action in writing before the taking of such action, and (B) such provision and each other provision requiring an Independent Director cannot be amended without the prior written consent of the Independent Director;

(d)           The Independent Director shall not at any time serve as a trustee in bankruptcy for the Seller, Cloud Peak, any Originator or any of their respective Affiliates;

(e)           The Seller shall conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and board of managers’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;

(f)            Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as Cloud Peak or any Originator (or any other Affiliate thereof), the salaries and expenses relating to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool, which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;

(g)           The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service the Receivables Pool. The Seller will pay the Servicer the Servicing Fee pursuant hereto. Except as otherwise permitted by this Agreement, the Seller will not incur any material indirect or overhead expenses for items shared with Cloud Peak or any Originators (or any other Affiliate thereof) that are not reflected in the Servicing Fee. To the extent, if any, that the Seller (or any Affiliate thereof) shares items of expenses not reflected in the Servicing Fee or the manager’s fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered; it being understood that Cloud Peak, in its capacity as Servicer, shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other fees;

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(h)           The Seller’s operating expenses will not be paid by Cloud Peak or any Originator or any Affiliate thereof;

(i)            The Seller will have its own separate stationery;

(j)            The Seller’s books and records will be maintained separately from those of Cloud Peak, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of Seller;

(k)           All financial statements of Cloud Peak or any Originator or any Affiliate thereof that are consolidated to include Seller will disclose that (i) the Seller’s sole business consists of the purchase or acceptance through capital contributions of the Receivables and Related Rights from such Originator and the subsequent retransfer of or granting of a security interest in such Receivables and Related Rights to certain purchasers party to this Agreement, (ii) the Seller is a separate legal entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets prior to any assets or value in the Seller becoming available to the Seller’s equity holders and (iii) the assets of the Seller are not available to pay creditors of Cloud Peak or any Originator or any other Affiliates of Cloud Peak or any Originator;

(l)            The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Cloud Peak, any Originator or any Affiliates thereof;

(m)          The Seller will strictly observe corporate formalities in its dealings with Cloud Peak, each Originator and any Affiliates thereof, and funds or other assets of the Seller will not be commingled with those of Cloud Peak, any Originator or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Cloud Peak or any Affiliate thereof (other than Cloud Peak in its capacity as the Servicer) has independent access. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Cloud Peak, any Originator or any Subsidiaries or other Affiliates thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;

(n)           The Seller will maintain arm’s-length relationships with Cloud Peak, each Originator and any Affiliates thereof.  Any Person that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services it renders or otherwise furnishes to the Seller.  Neither the Seller on the one hand, nor Cloud Peak or any Originator, on the other hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller, Cloud Peak and each Originator will immediately correct any known misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity;

(o)           The Seller shall have a separate area from Cloud Peak and each Originator for its business (which may be located at the same address as such entities) and to the extent that any

IV-15

other such entity has offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses; and

(p)           To the extent not already covered in paragraphs (a) through (o) above, Seller shall comply and/or act in accordance with the provisions of Section 6.4 of the Purchase and Sale Agreement.

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EXHIBIT V

TERMINATION EVENTS

Each of the following shall be a “Termination Event”:

(a)           (i)            the Seller, Cloud Peak, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document and, except as otherwise provided herein, such failure shall, solely to the extent capable of cure, continue for thirty days after the earlier of any such Person’s knowledge or notice thereof or (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement or any other Transaction Document and such failure shall remain unremedied for three Business Days;

(b)           Cloud Peak (or any Affiliate thereof) shall fail to transfer to any successor Servicer, when required, any rights pursuant to this Agreement that Cloud Peak (or such Affiliate) then has as Servicer;

(c)           any representation or warranty made or deemed made by the Seller, the Servicer or any Originator (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller, the Servicer or any Originator pursuant to this Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered and, if the representation or warranty is of a type that is capable of being cured, shall remain incorrect or untrue for thirty days after the earlier of such Person’s knowledge or notice thereof;

(d)           the Seller or the Servicer shall fail to deliver any Information Package or Interim Report when due pursuant to this Agreement, and such failure shall remain unremedied for one Business Day;

(e)           this Agreement (and each Lock-Box Agreement, as applicable) or any purchase or reinvestment pursuant to this Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable first priority perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim (other than Permitted Liens), or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator (for the benefit of the Administrator, the Purchaser Agents and the Purchasers) with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim (other than Permitted Liens);

(f)            (A) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Seller or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Seller or for a substantial part of its assets, (B) the Seller shall (i) voluntarily commence any proceeding or file

V-1

any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to consent in a timely and appropriate manner, any proceeding or petition described in clause (A) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Seller or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing or (C) the Seller shall become unable, admit in writing its inability or fail generally to pay its debts as they become due,

(g)any of the following shall occur:

(i)the Default Ratio shall exceed 3.00%;

(ii)the average Default Ratio for any three consecutive calendar months shall exceed 2.00%;

(iii)the Delinquency Ratio shall exceed 4.50%;

(iv)the average Delinquency Ratio for any three consecutive calendar months shall exceed 3.50%;

(v)the average Dilution Ratio for any three consecutive calendar months shall exceed 3.00%; or

(vi)the Days’ Sales Outstanding shall exceed 40 days;

(h)a Change in Control shall occur;

(i)the Purchased Interest shall exceed 100% for two (2) consecutive Business Days;

(j)(i) the Parent, Cloud Peak or any of their respective Subsidiaries fail to pay any principal of or premium or interest on any Material Debt when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), which failure continues after the applicable grace period, if any, specified in the related Material Debt Agreement (whether or not such failure is waived under any related Material Debt Agreement); (ii) any other event or condition occurs or exists under, and continues to exist after the applicable grace period, in any, specified in, any Material Debt Agreement, which event or condition gives the applicable debtholders, lenders or counterparties the right (whether or not acted upon and whether or not such failure is waived under any related Material Debt Agreement) to (x) accelerate the maturity of the related Material Debt or otherwise cause such Material Debt to be due and payable prior to scheduled maturity thereof or (y) cause the early termination of any commitment of any such debtholder, lender or counterparty under the such Material Debt Agreement prior to the scheduled termination of such commitment; or (iii) any Material Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof, unless, in the case of each of sub-clauses (i), (ii) and (iii), the

V-2

exercise of any rights or remedies by a holder of such Material Debt is subject to the automatic stay in the Chapter 11 Cases; provided, for the avoidance of doubt, solely with respect to Material Debt (other than with respect to any Eligible DIP Facility), that this clause (j) shall not relate to any Debt of any Filing Debtor that was incurred prior to the Filing Date (or, if later, the date on which such Person became a Filing Debtor) which is accelerated as a result of the Chapter 11 Cases;

(k)           either the Internal Revenue Service or the Pension Benefit Guaranty Corporation shall have filed one or more notices of lien asserting a claim or claims pursuant to the Internal Revenue Code, or ERISA, as applicable, against the assets of Seller, any Originator, Cloud Peak or any ERISA Affiliate;

(l)            any Letter of Credit is drawn upon and is not fully reimbursed by the Seller (whether by a Participation Advance or otherwise) within two (2) Business Days from the date it is required to be reimbursed by the Seller pursuant to Section 1.18(b);

(m)          (i) any of the Chapter 11 Cases shall be dismissed or converted to a case under Chapter 7 of the Bankruptcy Code without the consent of the Administrator and the Majority Purchaser Agents or (ii) a trustee under Chapter 11 of the Bankruptcy Code or an examiner with enlarged powers relating to the operation of the business (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code shall be appointed in any of the Chapter 11 Cases;

(n)           an order of the Bankruptcy Court shall be entered in any of the Chapter 11 Cases staying, reversing, vacating, amending, supplementing or otherwise modifying any of the Financing Orders or any member of the Cloud Peak Group shall apply for authority to do so, in each, without the prior written consent of the Administrator and the Majority Purchaser Agents;

(o)           a member of the Cloud Peak Group shall file a pleading seeking or consenting to the matters described in clauses (p) or (q) below;

(p)           any member of the Cloud Peak Group shall seek or support (in any such case by way of any motion or other pleading filed with the Bankruptcy Court) any other Person’s opposition of, any motion made in the Bankruptcy Court by the Administrator or any other Secured Party seeking confirmation of the validity, priority or extent of the liens or other interests of the Administrator granted pursuant to the Transaction Documents;

(q)           the filing by any member of the Cloud Peak Group of any motion or proceeding to approve a DIP Facility that grants a lien on (i) the membership interests of the Seller (other than the Eligible DIP Subordinated Interest) or (ii) any Pool Assets, in each case without the prior written consent of the Administrator and the Majority Purchaser Agents;

(r)            the entry of an order authorizing recovery by any Person from the Pool Assets for any costs of preservation or disposition thereof under Section 506(c) of the Bankruptcy Code or the filing by  any member of the Cloud Peak Group of a motion seeking such an order;

(s)            the filing by any member of the Cloud Peak Group of any motion or proceeding that could reasonably be expected to result in material impairment of the Administrator’s or any

V-3

Secured Party’s rights under the Transaction Documents; or a final determination by the Bankruptcy Court (or any other court of competent jurisdiction) with respect to any motion or proceeding brought by any other party that results in any material impairment of the Administrator’s or any Secured Party’s rights under the Transaction Documents, unless such suit or other proceeding is in connection with the enforcement of the Transaction Documents against the Administrator or any Purchaser Agent;

(t)            the entry of one or more orders granting relief from the automatic stay with respect to any proceeding involving any member of the Cloud Peak Operating Group, so as to allow any third party to proceed against the assets of any member of the Cloud Peak Operating Group, which have a value in excess of $10,000,000 in the aggregate;

(u)           the existence of any Adverse Claim (other than a Permitted Lien) on any Pool Assets;

(v)           any member of the Cloud Peak Group makes any payment on any Debt of any member of the Cloud Peak Group arising before the Filing Date, other than as permitted by order of the Bankruptcy Court or as otherwise agreed to by the Administrator;

(w)          a Final Order shall not have been entered within 45 days following the Filing Date (or such later date as consented to in writing by the Administrator and each Purchaser Agent in their sole and absolute discretion); or from and after the date of entry thereof, the Final Order shall cease to be in full force and effect (or shall have been vacated, stayed, reversed, modified or amended), in each case without the prior written consent of the Administrator and each Purchaser;

(x)           Cloud Peak or any of its Affiliates shall fail to comply in any material respect with the terms of the Financing Orders;

(y)           the filing of a plan that does not provide for indefeasible payment in full in cash of all obligations owed by any member of the Cloud Peak Operating Group to the Purchasers (other than contingent obligations not yet due and payable as of the effective date of such plan) upon effectiveness;

(z)           the Servicer shall fail to perform its obligations under Section 2(n) of Exhibit IV of this Agreement; and

(aa)         either (i) an order of the Bankruptcy Court shall be entered in any of the Chapter 11 Cases, after the entry of an order approving the Transaction Documents, approving a DIP Facility that is not an Eligible DIP Facility or (ii) any member of the Cloud Peak Operating Group enters into a DIP Facility that is not an Eligible DIP Facility.

Notwithstanding the foregoing, for the avoidance of doubt, neither (i) any Specified Termination Event (as such term is defined in the Amended and Restated Forbearance Agreement, dated as of May 7, 2019, among the Seller, Cloud Peak, the Administrator and the LC Bank (each as defined in the Prior Agreement), as amended, amended and restated, supplemented or otherwise modified and in effect on the date hereof) (each, a “Specified

V-4

Termination Event”) or (ii) the commencement and continuation of the Chapter 11 Cases in and of itself shall constitute a Termination Event or an Unmatured Termination Event.

V-5

SCHEDULE I
CREDIT AND COLLECTION POLICY

(See attached)

Schedule I-1

SCHEDULE II

LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS

BANK	LOCK-BOX	BANK ACCOUNT
PNC Bank, N.A.	N
PNC Bank, N.A.	N
PNC Bank, N.A.	N

Schedule II-1

SCHEDULE III

TRADE NAMES

None.

Schedule III-1

SCHEDULE IV

MORTGAGES

Second Lien Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement, Fixture Filing, As-Extracted Collateral Filing and Financing Statement, dated January 9, 2017, from Antelope Coal LLC, as mortgagor, to Wilmington Trust, National Association, as mortgagee, recorded in Book 3063 at Page 338, as Instrument No. 1029208, in the real estate records of the clerk and recorder of Campbell County, Wyoming as amended by a First Amendment recorded in Book 3165 at Page 393, as Instrument No. 1047261

Second Lien Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement, Fixture Filing, As-Extracted Collateral Filing and Financing Statement, dated January 9, 2017, from Antelope Coal LLC, as mortgagor, to Wilmington Trust, National Association, as mortgagee, recorded in Book 1604, Page 1, as Instrument No. 1055937, in the real estate records of the clerk and recorder of Converse County, Wyoming as amended by a First Amendment recorded in Book 1634 at Page 80, as Instrument No. 1068752, and a Second Amendment recorded in Book 1650 at Page 293, as Instrument No. 1074595

Second Lien Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement, Fixture Filing, As-Extracted Collateral Filing and Financing Statement, dated January 9, 2017, from Caballo Rojo LLC, as mortgagor, Cordero Mining LLC, as mortgagor, to Wilmington Trust, National Association, as mortgagee, recorded in Book 3063 at Page 570, as Instrument No. 1029241, in the real estate records of the clerk and recorder of Campbell County, Wyoming

Second Lien Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement, Fixture Filing, As-Extracted Collateral Filing and Financing Statement, dated January 9, 2017, from Cordero Mining LLC, as mortgagor, to Wilmington Trust, National Association, as mortgagee, recorded in Book in Book 3063 at Page 387, as Instrument No. 1029209, in the real estate records of the clerk and recorder of Campbell County, Wyoming as amended by a First Amendment recorded in Book 3165 at Page 411, as Instrument No. 1047262

Second Lien Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement, Fixture Filing, As-Extracted Collateral Filing and Financing Statement, dated January 9, 2017, from Spring Creek Coal LLC, as mortgagor, to Wilmington Trust, National Association, as mortgagee, recorded in Book 143 at Page 290, as Instrument No. 352735, in the real estate records of the clerk and recorded of Big Horn County, Montana as amended by a First Amendment recorded in Book 152 at Page 496, as Instrument No. 356576

SCHEDULE V

ADDRESSES FOR NOTICES

The Seller:

Cloud Peak Energy Receivables LLC

385 Interlocken Crescent, Suite 400

Broomfield, CO  80021

Attn:  John Stranak

Tel:  720-566-2931

Fax:  720-566-3095

Email:  john.stranak@cldpk.com

With a copy to Cloud Peak

Cloud Peak:

Cloud Peak Energy Resources LLC

385 Interlocken Crescent, Suite 400

Broomfield, CO  80021

Attn:  General Counsel

Tel:  720-566-2938

Fax:  720-566-3095

Email:  Bryan.Pechersky@cldpk.com

PNC Bank, National Association:

PNC Bank, National Association
The Tower at PNC Plaza
300 Fifth Avenue
Pittsburgh, PA 15222-2707
Attn:  Robyn Reeher

Tel:  412-768-3090

Fax:  412-762-9184

Email:  robyn.reeher@pnc.com

Schedule V-1

SCHEDULE VI

GROUP COMMITMENTS

PNC Bank, National Association’s Purchaser Group

Party	Capacity	Commitment
PNC Bank, National Association	Related Committed Purchaser	$	35,000,000
PNC Bank, National Association	LC Participant	$	35,000,000
PNC Bank, National Association	Purchaser Agent	N/A
PNC Bank, National Association	LC Bank	N/A

Schedule VI-1

ANNEX A

FORM OF INFORMATION PACKAGE

(See attached)

Annex A-1

ANNEX B-1

FORM OF PURCHASE NOTICE

Dated as of [                   , 20  ]

PNC Bank, National Association
Three PNC Plaza
225 Fifth Avenue
Pittsburgh, PA 15222-2707
Attn:  Robyn Reeher

[Each Purchaser Agent]

Ladies and Gentlemen:

Reference is hereby made to the Second Amended and Restated Receivables Purchase Agreement, dated as of May 15, 2019 (as heretofore amended, restated, supplemented or otherwise modified, the “Receivables Purchase Agreement”), among Cloud Peak Energy Receivables LLC, (“Seller”), Cloud Peak Energy Resources LLC, as Servicer, the various Conduit Purchasers, Related Committed Purchasers, LC Participants and Purchaser Agents from time to time parties thereto, PNC Bank, National Association (“PNC”, as administrator (in such capacity, the “Administrator”) and as the issuer of letters of credit thereunder (in such capacity, the “LC Bank”) and PNC Capital Markets LLC, as Structuring Agent.  Capitalized terms used in this Issuance Notice and not otherwise defined herein shall have the meanings assigned thereto in the Receivables Purchase Agreement.

This letter constitutes a Purchase Notice pursuant to Section 1.2(a) of the Receivables Purchase Agreement.  Seller desires to sell an undivided variable interest in a pool of receivables on            , [20  ], for a purchase price of $            (1).  Subsequent to this Purchase, the Aggregate Capital will be $           .]

Seller hereby represents and warrants as of the date hereof, and as of the date of Purchase, as follows:

(i) the representations and warranties contained in Exhibit III of the Receivables Purchase Agreement are true and correct in all material respects on and as of the date of such purchase as though made on and as of such date (except for representations and warranties which apply as to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);

(1)  Such amount shall not be less than $200,000 (or such lesser amount as agreed to by the Administrator and the Majority Purchaser Agents) and shall be in integral multiples of $100,000 with respect to each Purchaser Group.

Annex B-1-1

(ii) no event has occurred and is continuing, or would result from such purchase, that constitutes a Termination Event or Unmatured Termination Event;

(iii) the sum of the Aggregate Capital, after giving effect to any such purchase or reinvestment will not be greater than the Purchase Limit, and the Purchased Interest will not exceed 100%; and

(iv) the Facility Termination Date has not occurred.

Annex B-1-2

IN WITNESS WHEREOF, the undersigned has caused this Purchase Notice to be executed by its duly authorized officer as of the date first above written.

CLOUD PEAK RECEIVABLES, LLC

By:

Name Printed:

Title:

Annex B-1-3

ANNEX B-2

FORM OF ISSUANCE NOTICE

, [201     ]

PNC Bank, National Association
300 Fifth Avenue
11th Floor
Pittsburgh, PA 15222

[Each other Purchaser Agent]

Ladies and Gentlemen:

Reference is hereby made to the Second Amended and Restated Receivables Purchase Agreement, dated as of May 15, 2019 (as heretofore amended, restated, supplemented or otherwise modified, the “Receivables Purchase Agreement”), among Cloud Peak Energy Receivables LLC, (“Seller”), Cloud Peak Energy Resources LLC, as Servicer, the various Conduit Purchasers, Related Committed Purchasers, LC Participants and Purchaser Agents from time to time parties thereto, PNC Bank, National Association (“PNC”, as administrator (in such capacity, the “Administrator”) and as the issuer of letters of credit thereunder (in such capacity, the “LC Bank”) and PNC Capital Markets LLC, as Structuring Agent.  Capitalized terms used in this Issuance Notice and not otherwise defined herein shall have the meanings assigned thereto in the Receivables Purchase Agreement.

This letter constitutes a notice pursuant to Section 1.16(a) of the Receivables Purchase Agreement.  Seller desires that LC Bank issue a Letter of Credit with a face amount of $     .  Subsequent to this issuance, the LC Participation Amount will be $        [and the Aggregate Capital will be $     ].

Seller hereby represents and warrants as of the date hereof, and as of the date of such issuance, as follows:

(i) the representations and warranties contained in Exhibit III of the Receivables Purchase Agreement are correct in all material respects on and as of such dates as though made on and as of such dates and shall be deemed to have been made on such dates (except for representations and warranties that apply solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);

(ii) no Termination Event or Unmatured Termination Event has occurred and is continuing, or would result from such issuance;

Annex B-2-1

(iii) after giving effect to the issuance proposed hereby, the sum of the Aggregate Capital plus the LC Participation Amount will not exceed the Purchase Limit, and the Purchased Interest will not exceed 100%; and

(iv) the Facility Termination Date has not occurred.

Annex B-2-2

IN WITNESS WHEREOF, the undersigned has caused this Issuance Notice to be executed by its duly authorized officer as of the date first above written.

CLOUD PEAK RECEIVABLES, LLC

By:

Name Printed:

Title:

Annex B-2-3

ANNEX C

FORM OF ASSUMPTION AGREEMENT

Dated as of [                          , 20  ]

THIS ASSUMPTION AGREEMENT (this “AGREEMENT”), dated as of [         ,     ], is among CLOUD PEAK RECEIVABLES LLC (the “Seller”),  [        ], as purchaser (the “[     ] Conduit Purchaser”), [        ], as the related committed purchaser (the “[      ] Related Committed Purchaser”), [        ], as the related LC Participant (the “[      ] LC Participant”, and together with the Conduit Purchaser, Related Committed Purchaser and LC Participant, the “[     ] Purchasers”), and [        ], as agent for the [     ] Purchasers (the “[      ] Purchaser Agent” and together with the [     ] Purchasers, the “[       ] Purchaser Group”).

BACKGROUND

The Seller and various others are parties to that certain Second Amended and Restated Receivables Purchase Agreement dated as of May 15, 2019 (as amended, restated, supplemented or otherwise modified through the date hereof, the “Receivables Purchase Agreement”).  Capitalized terms used and not otherwise defined herein have the respective meaning assigned to such terms in the Receivables Purchase Agreement.

NOW, THEREFORE, the parties hereto hereby agree as follows:

SECTION 1.  This letter constitutes an Assumption Agreement pursuant to Section 6.3 of the Receivables Purchase Agreement.  The Seller desires [the [     ] Purchasers] [the [      ] Related Committed Purchaser] [the [      ] related LC Participant] to [become  Purchasers under] [increase its existing Commitment under] the Receivables Purchase Agreement and upon the terms and subject to the conditions set forth in the Receivables Purchase Agreement, the [        ] Purchasers agree to [become Purchasers thereunder] [increase its Commitment in an amount equal to the amount set forth as the “Commitment” under the signature of such [      ] Related Committed Purchaser hereto] [increase its Commitment in an amount equal to the amount set forth as the “Commitment” under the signature of such [      ] related LC Participant hereto].

Seller hereby represents and warrants to the [        ] Purchasers as of the date hereof, as follows:

(i)  the representations and warranties of the Seller contained in Exhibit III of the Receivables Purchase Agreement are true and correct in all material respects on and as the date of such purchase or reinvestment as though made on and as of such date (except for representations and warranties which apply as to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date);

Annex C-1

(ii)  no event has occurred and is continuing, or would result from such purchase or reinvestment, that constitutes a Termination Event or an Unmatured Termination Event; and

(iii)  the Facility Termination Date has not occurred.

SECTION 2.  Upon execution and delivery of this Agreement by the Seller and each member of the [      ] Purchaser Group, satisfaction of the other conditions to assignment specified in Section 6.3 of the Receivables Purchase Agreement (including the written consent of the Administrator and each Purchaser Agent) and receipt by the Administrator and Seller of counterparts of this Agreement (whether by facsimile or otherwise) executed by each of the parties hereto, [the [     ] Purchasers shall become a party to, and have the rights and obligations of Purchasers under, the Receivables Purchase Agreement][the [      ] Related Committed Purchaser shall increase its Commitment in the amount set forth as the “Commitment” under the signature of the [      ] Related Committed Purchaser hereto][the [      ] related LC Participant shall increase its Commitment in the amount set forth as the “Commitment” under the signature of the [      ] related LC Participant hereto].

SECTION 3.  Each party hereto hereby covenants and agrees that it will not institute against, or join any other Person in instituting against, any Conduit Purchaser, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any federal or state bankruptcy or similar law, for one year and one day after the latest maturing Note issued by such Conduit Purchaser is paid in full. The covenant contained in this paragraph shall survive any termination of the Receivables Purchase Agreement.

SECTION 4.  THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.  This Agreement may not be amended, supplemented or waived except pursuant to a writing signed by the party to be charged.  This Agreement may be executed in counterparts, and by the different parties on different counterparts, each of which shall constitute an original, but all together shall constitute one and the same agreement.

(continued on following page)

Annex C-2

IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized officers as of the date first above written.

[                      ], as a Conduit Purchaser

By:

Name Printed:

Title:

[Address]

[                      ], as a Related Committed Purchaser

By:

Name Printed:

Title:

[Address]

[Commitment]

[                      ], as a related LC Participant

By:

Name Printed:

Title:

[Address]

[Commitment]

[                      ], as Purchaser Agent for [         ]

By:

Name Printed:

Title:

[Address]

Annex C-3

CLOUD PEAK ENERGY RECEIVABLES LLC, as Seller
By:
Name Printed:
Title:
Consented and Agreed:
PNC BANK, NATIONAL ASSOCIATION, as Administrator
By:
Name Printed:
Title:
Address:	[                   ]
PNC BANK, NATIONAL ASSOCIATION, as LC Bank
By:
Name Printed:
Title:
Address:	[                   ]
[THE PURCHASER AGENTS]
By:
Name Printed:
Title:

[Address]

Annex C-4

ANNEX D

FORM OF TRANSFER SUPPLEMENT

Dated as of [          , 20  ]

Section 1.

Commitment assigned:	$
Assignor’s remaining Commitment:	$
Capital allocable to Commitment assigned:	$
Assignor’s remaining Capital:	$
Discount (if any) allocable to Capital assigned:	$
Discount (if any) allocable to Assignor’s remaining Capital:	$

Section 2.

Effective Date of this Transfer Supplement:  [          ]

Upon execution and delivery of this Transfer Supplement by transferee and transferor and the satisfaction of the other conditions to assignment specified in Section 6.3(c) of the Receivables Purchase Agreement (as defined below), from and after the effective date specified above, the transferee shall become a party to, and have the rights and obligations of a Related Committed Purchaser under, the Second Amended and Receivables Purchase Agreement, dated as of May 15, 2019 (as amended, restated, supplemented or otherwise modified through the date hereof, the “Receivables Purchase Agreement”), among CLOUD PEAK ENERGY RECEIVABLES LLC, as Seller, CLOUD PEAK ENERGY RESOURCES LLC, as initial Servicer, the various Purchasers and Purchaser Agents from time to time party thereto, and PNC Bank, National Association, as Administrator.

Annex D-1

ASSIGNOR: [                  ], as a Related Committed Purchaser
			By:
			Name:
			Title:
ASSIGNEE: [                  ], as a Purchasing Related Committed Purchaser
			By:
			Name:
			Title:
		[Address]
Accepted as of date first above
written:
[                    ], as Purchaser Agent for the [           ] Purchaser Group
By:
	Name:
	Title:

Annex D-2

ANNEX E

FORM OF PAYDOWN NOTICE

Dated as of [                                   , 20      ]

CLOUD PEAK ENERGY RESOURCES LLC

385 Interlocken Crescent, Suite 400

Broomfield, CO

Attention:  Girish Hemrajani

PNC Bank, National Association
Three PNC Plaza
225 Fifth Avenue
Pittsburgh, PA 15222-2707
Attn:  Robyn Reeher

[Each Purchaser Agent]

Ladies and Gentlemen:

Reference is hereby made to the Second Amended and Restated Receivables Purchase Agreement, dated as of May 15, 2019 (as amended, restated, supplemented or otherwise modified through the date hereof, the “Receivables Purchase Agreement”), among Cloud Peak Energy Receivables LLC, as Seller, Cloud Peak Energy Resources LLC, as Servicer, the various Purchasers and Purchaser Agents from time to time party thereto, PNC Bank, National Association, as Administrator, and PNC Capital Markets LLC, as Structuring Agent.  Capitalized terms used in this paydown notice and not otherwise defined herein shall have the meanings assigned thereto in the Receivables Purchase Agreement.

This letter constitutes a paydown notice pursuant to Section 1.4(f)(i) of the Receivables Purchase Agreement.  The Seller desires to reduce the Aggregate Capital on                    ,                (2) by the application of  $                        in cash to pay Aggregate Capital and Discount to accrue (until such cash can be used to pay commercial paper notes) with respect to such Aggregate Capital, together with all costs related to such reduction of Aggregate Capital.  Subsequent to this paydown, the aggregate outstanding Capital will be $                          .

(2)Notice must be given at least two Business Days prior to the date of such reduction.

Annex E-1

IN WITNESS WHEREOF, the undersigned has caused this paydown notice to be executed by its duly authorized officer as of the date first above written.

CLOUD PEAK RECEIVABLES LLC

By:

Name:

Title:

Annex E-2

ANNEX F

CLOSING MEMORANDUM

[to be attached]

Annex F-1

ANNEX G

FORM OF COMPLIANCE CERTIFICATE

To:PNC Bank, National Association, as Administrator

[Each Purchaser Agent]

This Compliance Certificate (the “Certificate”) is furnished pursuant to that certain Second Amended and Restated Receivables Purchase Agreement, dated as of May 15, 2019, by and among Cloud Peak Energy Receivables LLC (“Seller”), Cloud Peak Energy Resources LLC (the “Servicer”), the various Purchasers and Purchaser Agents from time to time parties thereto, PNC Bank, National Association (the “Administrator”), and PNC Capital Markets LLC, as Structuring Agent  (as amended, restated, supplemented or otherwise modified from time to time, the “Agreement”).  Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Agreement.

THE UNDERSIGNED HEREBY CERTIFIES THAT:

1.I am the duly elected                                             of the Servicer.

2.I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and condition of Seller and the Servicer during the accounting period covered by electronically filed financial statements.

3.The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes a Termination Event or an Unmatured Termination Event, as each such term is defined under the Agreement, during or at the end of the accounting period covered by the electronically filed financial statements or as of the date of this Certificate, except as set forth in paragraph 4 below.

4.Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which Seller or the Servicer has taken, is taking, or proposes to take with respect to each such condition or event:

Annex G-1

The foregoing certifications, together with the computations set forth in Schedule I hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered this                  day of                                        , 20        .

CLOUD PEAK ENERGY RESOURCES LLC

By:

Name:

Title:

Annex G-2

ANNEX H

FORM OF DAILY REPORT

[to be attached]

Annex H-1

ANNEX I

FORM OF WEEKLY REPORT

[to be attached]

Annex I-1

ANNEX J

FORM OF LETTER OF CREDIT APPLICATION

[to be attached]

Annex J-1

ANNEX K

INTERIM ORDER

[to be attached]

Annex K-1

EX-10.2

Exhibit 10.2

Execution Version

SUPERPRIORITY SENIOR SECURED PRIMING DEBTOR-IN-POSSESSION CREDIT AGREEMENT

Dated as of May 15, 2019

among

CLOUD PEAK ENERGY INC.

and

THE SUBSIDIARIES OF CLOUD PEAK ENERGY INC. PARTY HERETO,
each a Debtor and Debtor-in-Possession under Chapter 11
of the Bankruptcy Code, as Borrowers,

THE LENDERS PARTY HERETO,

and

ANKURA TRUST COMPANY, LLC,
as Administrative Agent and as Collateral Agent

TABLE OF CONTENTS

		Page
ARTICLE I. DEFINITIONS		1
Section 1.01.	Defined Terms	1
Section 1.02.	Terms Generally	32
Section 1.03.	Administrative Borrower	32
Section 1.04.	Divisions	33
Section 1.05.	Orders Control	33
ARTICLE II. THE CREDITS		33
Section 2.01.	Commitments	33
Section 2.02.	Loans and Borrowings	34
Section 2.03.	Requests for Borrowings	35
Section 2.04.	Funding of Borrowings	35
Section 2.05.	Interest Elections	36
Section 2.06.	Incremental Loans	37
Section 2.07.	Evidence of Debt	37
Section 2.08.	Repayment of Loans	38
Section 2.09.	Optional and Mandatory Prepayment of Loans	38
Section 2.10.	Fees	39
Section 2.11.	Interest	40
Section 2.12.	Alternate Rate of Interest	41
Section 2.13.	Increased Costs	41
Section 2.14.	Break Funding Payments	42
Section 2.15.	Taxes	43
Section 2.16.	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	46
Section 2.17.	Mitigation Obligations	47
Section 2.18.	Illegality	48
Section 2.19.	Priority and Liens	48
Section 2.20.	No Discharge; Survival of Claims	50
Section 2.21.	Payment of Obligations	50
Section 2.22.	Joint and Several Liability	50
ARTICLE III. REPRESENTATIONS AND WARRANTIES		52
Section 3.01.	Organization; Powers	52
Section 3.02.	Authorization	52
Section 3.03.	Enforceability	52
Section 3.04.	Governmental Approvals	53
Section 3.05.	Financial Statements	53
Section 3.06.	No Material Adverse Effect	53
Section 3.07.	Title to Properties; Possession Under Leases	53
Section 3.08.	Litigation; Compliance with Laws	56
Section 3.09.	Federal Reserve Regulations	56
Section 3.10.	Investment Company Act	57

i

TABLE OF CONTENTS

(continued)

		Page
Section 3.11.	Use of Proceeds	57
Section 3.12.	Tax Returns	57
Section 3.13.	No Material Misstatements	58
Section 3.14.	Employee Benefit Plans	58
Section 3.15.	Environmental Matters	58
Section 3.16.	Security Documents	59
Section 3.17.	[Reserved]	60
Section 3.18.	Material Contracts	60
Section 3.19.	Labor Matters	60
Section 3.20.	Insurance	60
Section 3.21.	Anti-Terrorism Law	60
Section 3.22.	Initial Budget	61
Section 3.23.	DIP Orders	61
Section 3.24.	Bankruptcy Matters	62
ARTICLE IV. CONDITIONS OF EFFECTIVENESS AND LENDING		62
Section 4.01.	Conditions Precedent to Effectiveness	62
Section 4.02.	Conditions to Borrowings	64
ARTICLE V. AFFIRMATIVE COVENANTS		66
Section 5.01.	Existence; Businesses and Properties	66
Section 5.02.	Insurance	67
Section 5.03.	Payment of Obligations	68
Section 5.04.	Financial Statements, Reports; Borrowing Base Information, etc.	69
Section 5.05.	Lender Conference Calls	72
Section 5.06.	Notices	72
Section 5.07.	Compliance with Laws	73
Section 5.08.	Maintaining Records; Access to Properties; Inspections, Field Exams and Appraisals, Etc.	74
Section 5.09.	Use of Proceeds	74
Section 5.10.	Compliance with Environmental Laws	74
Section 5.11.	Compliance with Leases	74
Section 5.12.	First and Second Day Orders	74
Section 5.13.	Cash Management	74
Section 5.14.	Segregated Account	75
Section 5.15.	Certain Case Milestones	75
Section 5.16.	Budget	76
Section 5.17.	Further Assurances	76
Section 5.18.	A/R Refunds	76
Section 5.19.	Control Agreements	76
Section 5.20.	Information Rights	76
Section 5.21.	Post-Closing Covenants	76

ii

TABLE OF CONTENTS

(continued)

		Page
Section 5.22.	Mining Permits and Environmental Permits	77
ARTICLE VI. NEGATIVE COVENANTS		77
Section 6.01.	Investments	77
Section 6.02.	Indebtedness	78
Section 6.03.	Liens	79
Section 6.04.	Restrictions on Fundamental Changes	80
Section 6.05.	Asset Dispositions	80
Section 6.06.	Restricted Payments	81
Section 6.07.	Payments of Indebtedness	81
Section 6.08.	Transactions with Affiliates	82
Section 6.09.	Business of the Borrowers and the Subsidiaries	82
Section 6.10.	Limitation on Modifications of Organizational Documents, Indebtedness and Certain Other Agreements, etc.	82
Section 6.11.	Reserved	83
Section 6.12.	Swap Agreements	83
Section 6.13.	Embargoed Person	83
Section 6.14.	Anti-Terrorism Law; Anti-Money Laundering	83
Section 6.15.	Changes in Fiscal Year	84
Section 6.16.	Changes in Accounting	84
Section 6.17.	Subsidiaries	84
Section 6.18.	Unexpired Leases; Executory Contracts	84
Section 6.19.	Approvals	84
Section 6.20.	Proceedings	84
Section 6.21.	Margin Stock	84
Section 6.22.	Collateral	85
Section 6.23.	Weekly Draws	85
Section 6.24.	Use of Proceeds	86
Section 6.25.	Carve-Out	86
Section 6.26.	Orders	86
Section 6.27.	Bank Accounts	86
Section 6.28.	Minimum Liquidity	86
ARTICLE VII. [RESERVED]		87
ARTICLE VIII. EVENTS OF DEFAULT		87
Section 8.01.	Events of Default	87
Section 8.02.	Application of Funds	92
ARTICLE IX. THE AGENTS		94
Section 9.01.	Appointment	94
Section 9.02.	Nature of Duties	95

iii

TABLE OF CONTENTS

(continued)

		Page
Section 9.03.	Resignation by the Agents	95
Section 9.04.	Each Agent in Its Individual Capacity	95
Section 9.05.	Indemnification	96
Section 9.06.	Lack of Reliance on Agents	96
Section 9.07.	Withholding Taxes	96
Section 9.08.	Credit Bidding	97
ARTICLE X. MISCELLANEOUS		98
Section 10.01.	Notices	98
Section 10.02.	Survival of Agreement	99
Section 10.03.	Binding Effect, Effectiveness	99
Section 10.04.	Successors and Assigns	99
Section 10.05.	Expenses; Indemnity	103
Section 10.06.	Right of Set-off	105
Section 10.07.	Applicable Law	105
Section 10.08.	Waivers; Amendment	105
Section 10.09.	Interest Rate Limitation	107
Section 10.10.	Entire Agreement	107
Section 10.11.	WAIVER OF JURY TRIAL	107
Section 10.12.	Severability	108
Section 10.13.	Counterparts	108
Section 10.14.	Headings	108
Section 10.15.	Jurisdiction; Consent to Service of Process	108
Section 10.16.	Confidentiality	108
Section 10.17.	Website Communications	109
Section 10.18.	U.S. PATRIOT Act	110
Section 10.19.	No Fiduciary Duty	111

iv

INDEX OF EXHIBITS

Exhibit A	Form of Assignment and Acceptance
Exhibit B	Form of Borrowing Request
Exhibit C	Form of Interim DIP Order
Exhibit D	Form of Note
Exhibit E	Form of Weekly Draw Request
Exhibit F-1 — F-4	Forms of United States Tax Compliance Certificate
Exhibit G	Initial Budget

INDEX OF SCHEDULES

Schedule 1.01(A)	Commitments
Schedule 1.01(B)	Prior Permitted Liens
Schedule 3.04	Governmental Approvals
Schedule 3.07(a)	Material Real Property
Schedule 3.07(c)	Certain Mining Claims
Schedule 3.07(d)	Intellectual Property
Schedule 3.07(e)	Condemnation Proceedings
Schedule 3.07(f)	Certain Real Property Option Rights
Schedule 3.07(g)	Names and Jurisdictions
Schedule 3.07(h)	Subscriptions
Schedule 3.08(a)	Litigation
Schedule 3.08(b)	Violations
Schedule 3.08(c)	Bonds
Schedule 3.12	Taxes
Schedule 3.15	Environmental Matters
Schedule 3.15(vii)	Underground Storage Tanks
Schedule 3.18	Material Contracts
Schedule 3.19	Labor Matters
Schedule 3.20	Insurance
Schedule 5.03	Specified Taxes
Schedule 6.01	Investments
Schedule 6.02	Indebtedness
Schedule 6.10	Restrictive Agreements
Schedule 6.20	Proceedings

v

SUPERPRIORITY SENIOR SECURED PRIMING DEBTOR-IN-POSSESSION CREDIT AGREEMENT dated as of May 15, 2019 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), among CLOUD PEAK ENERGY INC., a Delaware corporation and a Debtor and Debtor-in-Possession under Chapter 11 of the Bankruptcy Code (“CPE”), the other Persons party hereto from time to time as a “Borrower”, the Persons party hereto from time to time as “Lenders”, and Ankura Trust Company, LLC, as administrative agent (in such capacity, including any sub-agent or any successor or assignee of any of the foregoing, the “Administrative Agent”) and as collateral agent (in such capacity, including any sub-agent or any successor or assignee of any of the foregoing, the “Collateral Agent”) for the Lenders.

W I T N E S S E T H:

WHEREAS, on May 10, 2019 (the “Petition Date”), the Borrowers (collectively, and together with any other Affiliates that become debtors in the Cases, the “Debtors”) filed voluntary petitions with the Bankruptcy Court initiating their respective cases that are pending under Chapter 11 of the Bankruptcy Code (the cases of the Borrowers, each a “Case” and collectively, the “Cases”) and have continued in the possession of their assets and in the management of their business pursuant to Sections 1107 and 1108 of the Bankruptcy Code.

WHEREAS, the Borrowers have requested that the Lenders provide them with a term loan facility under this Agreement in an aggregate principal amount not to exceed (i) $35,000,000 (as may be increased to give effect to any fees or interest that are paid in kind as contemplated herein and to give effect to any Incremental Loans provided as set forth herein), subject to the limitations on borrowing set forth herein and (ii) subject to the entry of the Final DIP Order, Roll-Up Loans consisting of the roll-up of certain Indebtedness.  The Lenders are willing to extend such credit to the Borrowers on the terms and subject to the conditions set forth herein.

NOW THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I.

DEFINITIONS

SECTION 1.01.Defined Terms.

As used in this Agreement, the following terms shall have the meanings specified below:

“2021 Indenture” shall mean that certain Indenture, dated as of October 17, 2016, among the Specified Borrowers, the Subsidiaries named therein as Subsidiary Guarantors, and the 2021 Indenture Trustee, as in effect on the Effective Date and as may be amended or modified in accordance with this Agreement.

“2021 Indenture Documents” shall mean, collectively, the 2021 Indenture, the 2021 Notes and any other agreement, document or instrument entered into in connection therewith, in

each case, as in effect on the Effective Date and as may be amended or modified in accordance with this Agreement.

“2021 Indenture Trustee” shall mean Wilmington Trust, National Association, in its capacity as trustee and collateral agent under the 2021 Indenture.

“2021 Noteholders” means, collectively, the holders of the 2021 Notes.

“2021 Notes” means, collectively, the 12% second lien senior secured notes due 2021 issued pursuant to the 2021 Indenture, as in effect on the Effective Date and as may be amended or modified in accordance with this Agreement.

“2024 Indenture” shall mean that certain First Supplemental Indenture, dated as of March 11, 2014, among the Specified Borrowers, the Subsidiaries named therein as Subsidiary Guarantors, and the 2024 Indenture Trustee, as in effect on the Effective Date and as may be amended or modified in accordance with this Agreement.

“2024 Indenture Documents” shall mean, collectively, the 2024 Indenture, the 2024 Notes and any other agreement, document or instrument entered into in connection therewith, in each case, as in effect on the Effective Date and as may be amended or modified in accordance with this Agreement.

“2024 Indenture Trustee” shall mean Wilmington Trust, NA (as successor to Wells Fargo Bank, National Association), in its capacity as trustee and collateral agent under the 2021 Indenture.

“2024 Noteholders” means, collectively, the holders of the 2024 Notes.

“2024 Notes” means, collectively, the 6.375% senior unsecured notes due 2024 issued pursuant to the 2024 Indenture, as in effect on the Effective Date and as may be amended or modified in accordance with this Agreement.

“363 Sale” shall mean a sale of any portion of the Collateral or the assets of any Borrower under Section 363 of the Bankruptcy Code.

“363 Sale Order” shall mean a Final Order entered by the Bankruptcy Court in the Cases approving a 363 Sale.

“A/R Refund” shall mean any and all amounts representing collections on the A/R Securitization Facility Collateral that are payable to the A/R Securitization Seller pursuant to Sections 1.4(b)(ii), 1.4(b)(iv) and 1.4(d) of the A/R Securitization Facility Agreement.

“A/R Securitization Facility” shall mean the accounts receivable securitization facility provided pursuant to the terms of the A/R Securitization Facility Agreement.

“A/R Securitization Facility Agreement” means that certain Second Amended and Restated Receivables Purchase Agreement, dated as of on or about the Effective Date (as may be amended or modified in accordance with this Agreement) among the non-debtor A/R

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Securitization Seller, as seller, CPER, as servicer, and PNC Bank, National Association, as administrator and LC Bank and various conduit purchasers and other parties thereto.

“A/R Securitization Facility Collateral” shall mean all “Pool Assets” (as defined in the A/R Securitization Agreement), including “Receivables” and “Related Rights” (each as defined in the A/R Securitization Documents) sold, contributed or otherwise transferred to the A/R Securitization Seller; provided, that any such assets referred to above that are not acquired from (or otherwise transferred, assigned or pledged (to the extent of any re-characterization as other than a sale)), or are reconveyed (or released from any Lien) to, any Borrower shall not constitute “A/R Securitization Facility Collateral”.  For the avoidance of doubt, no party, other than the administrator under the A/R Securitization Facility Agreement (for the benefit of the Purchasers), shall have a security interest in or lien on the A/R Securitization Facility Collateral.

“A/R Securitization Facility Documents” means, collectively, the A/R Securitization Facility Agreement and any other agreement, document or instrument entered into in connection therewith, in each case, as in effect on the Effective Date and as may be amended in accordance with this Agreement.

“A/R Securitization Facility Superpriority Claim” shall mean superpriority administrative expense claims granted pursuant to (i) an interim order and/or a Final Order approving the motion seeking approval of the Borrowers’ continuation of the A/R Securitization Facility, A/R Securitization Facility Documents, and the applicable Borrowers’ entry into same and/or (ii) the DIP Orders.

“A/R Securitization Seller” shall mean Cloud Peak Energy Receivables LLC.

“ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.

“ABR Loan” shall mean any Loan bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II.

“Acceptable 363 Sale” shall mean a 363 Sale that is consented to (such consent not to be unreasonably withheld) by the Supermajority Lenders and is subject to and consistent with the terms of the SAPSA; provided, that, in no event shall a Prohibited Plan or Sale constitute an “Acceptable 363 Sale”.

“Acceptable Chapter 11 Plan” shall mean a Chapter 11 Plan (which Chapter 11 Plan may include a sale of all or substantially all of the Borrowers’ assets) that, subject to the SAPSA, (a)(i) provides for the termination of the Commitments and (A) to the extent not otherwise previously paid in full in cash, the payment in full in cash of the Obligations on account of the New Money Loans under the Loan Documents (other than contingent indemnification obligations as to which no claim has been asserted), and (B) the payment of the Obligations on account of the Roll-Up Loans in accordance with the terms of the SAPSA, each of (A) and (B) on the Consummation Date of such Chapter 11 Plan, and (ii) provides for releases of the Released Parties from any and all claims against Agents, the Lenders, the Existing Trustees and the Existing Noteholders in connection with or related to this Agreement to the fullest extent permitted by the Bankruptcy Code and applicable law or (b) is otherwise acceptable to the Required Lenders in

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its/their reasonable discretion; provided, that, in no event shall a Chapter 11 Plan that is a Prohibited Plan or Sale constitute an “Acceptable Chapter 11 Plan”.

“Adequate Protection” shall mean the Adequate Protection Liens, the Adequate Protection Superpriority Claim, and other adequate protection that is provided to the 2021 Noteholders and other secured parties under the 2021 Indenture Documents pursuant to the DIP Orders; provided that (i) such Adequate Protection Liens are junior to the Liens granted to the Collateral Agent (for the benefit of the Secured Parties) under the Loan Documents, and (ii)  such Adequate Protection Superpriority Claim is junior to the Superpriority Claim granted to the Agents and the Lenders.

“Adequate Protection Liens” shall mean valid, binding, enforceable and automatically perfected replacement liens on the Collateral granted pursuant to any DIP Order, which such liens are junior to the Liens granted to the Collateral Agent (for the benefit of the Secured Parties) under the Loan Documents and the DIP Orders.

“Adequate Protection Superpriority Claim” shall mean a claim against any Debtor in any of the Cases which is an administrative expense claim having priority over any or all administrative expenses of the kind that are specified in, or contemplated by, Sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 546(c), 726, 1114 or any other provisions of the Bankruptcy Code to the extent of any diminution in value of the respective interests of the 2021 Noteholders and other secured parties under the 2021 Indenture Documents in the Collateral granted pursuant to the DIP Orders.

“Advance Rate” means (a) as of the Effective Date, 66.323% and (b) upon effectiveness of any Incremental Amendment, the “Advance Rate” as amended thereby.

“Adjusted LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the product of (a) the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves applicable to such Eurocurrency Borrowing, if any; provided that the Adjusted LIBO Rate shall be deemed to not be less than 1.00% per annum.

“Administrative Agent” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

“Administrative Agent Fee” shall have the meaning assigned to such term in Section 2.10(a).

“Administrative Agent Fee Letter” shall mean the letter agreement by and among the Borrowers and the Administrative Agent, dated as of the date hereof.

“Administrative Borrower” means CPER (or its successor) or any other Person appointed and authorized by the Borrowers pursuant to Section 1.03.

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“Affiliate” shall mean, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified.

“Agent Parties” shall have the meaning assigned to such term in Section 10.17(c).

“Agents” shall mean the Administrative Agent and the Collateral Agent.

“Agreement” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

“Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the LIBO Rate as determined on such day, plus 1.0%; provided that, the Alternate Base Rate shall be deemed to not be less than 2.00% per annum.  If for any reason the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate, including the failure of the Federal Reserve Bank of New York to publish rates or the inability of the Administrative Agent to obtain quotations in accordance with the terms thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving rise to such inability no longer exist.  Any change in the Alternate Base Rate due to a change in the LIBO Rate or the Federal Funds Effective Rate shall be effective on the effective date of such change in the LIBO Rate or the Federal Funds Effective Rate, respectively.

“Anti-Terrorism Laws” shall have the meaning assigned to such term in Section 3.21(a).

“Applicable Margin” shall mean (i) 9.00% per annum, in the case of Eurocurrency Loans and (ii) 8.00% per annum, in the case of ABR Loans.

“Applicable Subsidiary” shall have the meaning assigned to such term in Section 8.01(h).

“Appraisal” shall have the meaning assigned to such term in Section 5.04(k).

“Appraisal Certificate” shall have the meaning assigned to such term in Section 5.04(k).

“Appraisers” shall have the meaning assigned to such term in Section 5.04(k).

“Approved Budget” means the Initial Budget; provided, that, upon the written approval (or deemed approval pursuant to Section 5.04(h), as applicable) of the Required Lenders of an Updated Budget in accordance with Section 5.04(h), “Approved Budget” shall mean such Updated Budget.

“Approved Fund” shall mean any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in loans and similar extensions of credit in

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the ordinary course and that is administered or managed by a Lender, an Affiliate of a Lender or an entity or an Affiliate of an entity that administers or manages a Lender.

“Asset Disposition” shall mean any sale, transfer or other disposition by any Borrower or any of its or their Subsidiaries to any person other than a Borrower of any asset or group of related assets (including, without limitation, any contractual rights, whether with respect to any Material Contract or otherwise), in each case, in one or a series of related transactions, including but not limited to (a) Equity Interests of any Borrower or any Subsidiary, (b) any sale, transfer or other disposition of any Real Property, or (c) any Sale and Lease-Back Transaction; provided that in no event shall any sale, contribution, transfer or other disposition of any receivables or other property to the A/R Securitization Seller pursuant to and in accordance with the Purchase and Sale Agreement (as defined in the A/R Securitization Facility Agreement) constitute an “Asset Disposition”.

“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee, and accepted by the Administrative Agent and the Administrative Borrower (if required by such assignment and acceptance), in the form of Exhibit A to this Agreement or such other form as shall be approved by the Administrative Agent.

“Automatic Rejection Date” shall mean, with respect to any particular nonresidential real property lease, the final day of the 120-day period (or, if extended by the Bankruptcy Court, 210-day period or such other date as the Bankruptcy Court may order) provided for in Section 365(d)(4) of the Bankruptcy Code for the Borrowers to assume leases in the Cases.

“Avoidance Action” shall mean the Debtors’ claims and causes of action under Sections 502(d), 544, 545, 547, 548, 549, 550 and 553 of the Bankruptcy Code and any other avoidance actions under the Bankruptcy Code and the proceeds thereof and property received thereby whether by judgment, settlement or otherwise.

“Backstop Commitment Fee” shall have the meaning set forth in Section 2.10(b).

“Bankruptcy Code” means The Bankruptcy Reform Act of 1978, as heretofore and hereafter amended, and codified as 11 U.S.C. Section 101 et seq.

“Bankruptcy Court” means the United States Bankruptcy Court for the District of Delaware or any other court having jurisdiction over the Cases from time to time.

“Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America.

“Board of Directors” shall mean, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person or any authorized committee thereof, (ii) in the case of any limited liability company, the board of managers of such Person or any authorized committee thereof, or if there is none, the Board of Directors of the managing member of such Person (iii) in the case of any partnership, the general partner and the Board of Directors of the general partner of such Person or any authorized committee thereof and (iv) in any other case, the functional equivalent of the foregoing.

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“Borrowers” shall mean, collectively, CPE and each Subsidiary of CPE other than the Excluded Subsidiaries.

“Borrowing” shall mean a group of Loans of a single Type and made on a single date.

“Borrowing Base” shall mean, on any date, (1) the product of (a) the Advance Rate multiplied by (b) the sum of (i) the net orderly liquidation value of the Borrowers’ inventory in which the Collateral Agent, for the benefit of the Secured Parties, has a valid, first and super-priority perfected Lien, as such net orderly liquidation value is set forth in the then most recent Inventory Appraisal delivered to the Agents and the Lenders (which may be the Inventory Appraisal delivered to the Lenders on or prior to the Effective Date) plus (ii) the net orderly liquidation value of the Borrowers’ machinery and equipment in which the Collateral Agent, for the benefit of the Secured Parties, has a valid, first and super-priority perfected Lien, as such net orderly liquidation value is set forth in the then most recent M&E Appraisal delivered to the Lenders (which may be the M&E Appraisal delivered to the Lenders on or prior to the Effective Date) minus (2) Reserves.

“Borrowing Base Certificate” shall have the meaning assigned to such term in Section 5.04(l).

“Borrowing Base Deficiency” shall mean, at any time, the amount, if any, by which the principal amount of the New Money Loans (excluding any amounts added to the principal balance of the Loans as a result of fees or interest being paid in kind hereunder) exceeds the Borrowing Base.

“Borrowing Request” shall mean a request by a Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit B to this Agreement.

“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurocurrency Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in deposits in the applicable currency in the London interbank market.

“Capital Expenditures” shall mean, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset that are or are required to be included as capital expenditures on a consolidated statement of cash flows of such Person (excluding normal replacements and maintenance which are properly charged to current operations).  For purposes of this definition, the purchase price of equipment that is purchased substantially concurrently with the trade-in of existing equipment or with insurance proceeds shall be included in the calculation of Capital Expenditures only to the extent of the gross amount by which such purchase price exceeds the credit granted by the seller of such equipment in respect of the equipment being traded in at such time, the proceeds of such asset sale or the amount of such insurance proceeds, as the case may be.

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“Capital Lease Obligations” of any person shall mean the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such person under GAAP and, for purposes hereof, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

“Carve-Out” shall have the meaning specified in the Interim DIP Order, prior to entry of the Final DIP Order, and the Final DIP Order thereafter.

“Carve-Out Reserve” shall mean a cash reserve in an amount equal to, on any date (i) the Pre-Carve-Out Trigger Notice Cap (as defined in the Interim DIP Order, prior to entry of the Final DIP Order, and the Final DIP Order thereafter), plus (ii) the Post-Carve-Out Trigger Notice Cap (as defined in the Interim DIP Order, prior to entry of the Final DIP Order, and the Final DIP Order thereafter).

“Case” or “Cases” shall have the meaning specified in the recitals hereof.

“Casualty and Condemnation Award” shall mean casualty insurance settlements and condemnation awards resulting from any Casualty Event.

“Casualty Event” shall mean any loss, destruction or damage with respect to any property or asset of any Borrower or any Subsidiary, or any actual or threatened condemnation, confiscation, requisition, seizure or taking of such property or asset.

A “Change in Control” shall be deemed to occur if, in each case, other than in connection with a transaction permitted under this Agreement:

(a)CPE does not own 100% of the Equity Interests of CPER;

(b)CPER does not, directly or indirectly, own 100% of the Equity Interests of each other Borrower; or

(c)any “person” or “group” (each as used in Sections 13(d) and 14(d) of the Exchange Act as in effect on Effective Date) is or becomes the beneficial owner (as defined in Rule 13d-3 of the Exchange Act as in effect on Effective Date), directly or indirectly, in the aggregate Equity Interests representing 35% or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of a Borrower.

“Change in Law” shall mean (a) the adoption of any law, treaty, rule or regulation after Effective Date, (b) any change in law, treaty, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Effective Date or (c) compliance by any Lender (or, for purposes of Section 2.13(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any written request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Effective Date; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives

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thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Chapter 11 Plan” shall mean a chapter 11 plan in any or all of the Cases of the Debtors.

“Charges” shall have the meaning assigned to such term in Section 10.09.

“Coal” shall mean all coal and all types of solid naturally occurring hydrocarbons, including without limitation, bituminous and sub-bituminous coal, and lignite; provided, that in the case of any raw coal, such raw coal shall be converted to the “clean coal equivalent” quantity thereof.

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Collateral” shall mean all the “Collateral” as defined in any Security Document or in the Interim DIP Order or the Final DIP Order and all other assets that become subject to the Liens created by the Security Documents from time to time, the Interim DIP Order or the Final DIP Order; provided, that, notwithstanding the foregoing, the Collateral shall not include the A/R Securitization Facility Collateral or the proceeds and/or products thereof, provided, further, that to the extent of any conflict with respect to the Liens created by the Security Documents, the Interim DIP Order or the Final DIP Order, then the Interim DIP Order (and, when entered, the Final DIP Order) shall control.

“Collateral Agent” shall have the meaning given such term in the introductory paragraph of this Agreement.

“Commitment” shall mean with respect to each Lender, the commitment of such Lender to make Loans hereunder.  The initial amount of each Lender’s Commitment is set forth on Schedule 1.01(A) to this Agreement under the heading “Commitment” opposite such Lender’s name, or in the Assignment and Acceptance, subject to any adjustment pursuant to the terms and conditions thereof.  As of the Effective Date, the aggregate amount of the Commitments is $35,000,000, subject, for the avoidance of doubt, to any limitations on borrowing as set forth herein.

“Communications” shall have the meaning assigned to such term in Section 10.17(a).

“Confirmation Order” shall mean an order of the Bankruptcy Court confirming an Acceptable Chapter 11 Plan pursuant to Section 1129 of the Bankruptcy Code, in form and substance reasonably acceptable to the Supermajority Lenders, which shall be in full force and effect and shall not be reversed, vacated, stayed, amended, supplemented or otherwise modified or subject to the possibility of appeal, in each case, without the prior written consent of the Supermajority Lenders.

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“Consummation Date” shall mean the date of the substantial consummation (as defined in Section 1101 of the Bankruptcy Code and which for purposes of this Agreement shall be no later than the effective date) of a Chapter 11 Plan that is confirmed pursuant to a Confirmation Order of the Bankruptcy Court.

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of voting securities, by contract or otherwise, and “Controlling,” “Controlled” and “Controls” shall have meanings correlative thereto.

“Control Agreement” shall mean an account control agreement among the applicable Borrower(s), the Collateral Agent and the applicable depository bank, in form and substance reasonably satisfactory to the Required Lenders.

“Corresponding New Money Loan” shall mean, (i) with respect to any Initial Roll-Up Loan, the New Money Loans made pursuant to Section 2.01(b), (ii) with respect to any Final Roll-Up Loan, the New Money Loans made, or, to the extent the Final DIP Order so provides, deemed made pursuant to Section 2.01(c) and/or 2.01(d), as applicable, and (iii) with respect to any Incremental Roll-Up Loans, the Incremental Loans corresponding thereto pursuant to Section 2.06(e).

“CPE” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

“CPEL” means Cloud Peak Energy Logistics LLC, a Delaware limited liability company and a Debtor and Debtor-in-Possession under Chapter 11 of the Bankruptcy Code.

“CPER” shall mean Cloud Peak Energy Resources LLC, a Delaware limited liability company and a Debtor and Debtor-in-Possession under Chapter 11 of the Bankruptcy Code.

“Creditors’ Committee” shall mean the official committee of unsecured creditors in the Cases.

“Debtor Professionals” shall have the meaning assigned to such term in the Interim DIP Order, prior to entry of the Final DIP Order, and the Final DIP Order thereafter.

“Debtors” shall have the meaning specified in the recitals hereof.

“Default” shall mean any event or condition that upon notice, lapse of time or both would constitute an Event of Default.

“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is, or its government is, the subject of any Sanctions (currently, Crimea, Cuba, Iran, North Korea, and Syria).

“DIP Orders” shall mean, collectively, the Interim DIP Order and the Final DIP Order.

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“Dollars” or “$” shall mean lawful money of the United States of America.

“Effective Date” shall mean the first date on which all of the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01 or Section 10.08 (as applicable) which date shall be no later than three Business Days after the Initial DIP Order Entry Date.

“Eligible Assignee” shall mean (a) a Lender, or any affiliate of, or Approved Fund with respect to, a Lender or (b) any commercial bank, insurance company, investment or mutual fund or other entity that extends credit or buys loans in the ordinary course of its business; provided that “Eligible Assignee” shall not include (i) any natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), or (ii) any Borrower.

“Embargoed Person” or “Embargoed Persons” shall have the meaning given such term in Section 6.13.

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

“Environmental Claim” means any claim, cause of action, investigation or notice by any Person, including any Governmental Authority having jurisdiction, alleging any potential or resulting in any liability or costs (including liabilities or costs relating to compliance costs, investigatory costs, cleanup or remediation costs, compliance with Reclamation Laws, governmental or third party response costs, natural resource damages, property damage, personal injuries, or fines or penalties) based on or relating to or arising  from (A) the presence or Release of, or exposure to, any Hazardous Materials at any location, whether or not owned or operated by any Borrower or any of its Subsidiaries, as applicable, (B) the generation, handling, treatment, storage, disposal, transportation or arrangement for transportation of any Hazardous Materials, or (C) any Environmental Law, Environmental Permit, Mining Law or Mining Permit, including the alleged or actual violation thereof.

“Environmental Law” shall mean collectively, all Laws, including common law, that relate to (a) the prevention, abatement or elimination of pollution, or the protection of the Environment or human health (and with respect to exposure to Hazardous Materials, worker health), or of natural resources, including (i) to the extent so related, Mining Laws (other than the Mine Safety and Health Act (30 U.S.C. Section 801 et seq.)) and other Laws relating to the production of Coal, minerals, oil, natural gas and other hydrocarbons and their constituents, and (ii) all Reclamation Laws, and (b) the generation, handling, treatment, storage, disposal or transportation, the regulation of or exposure to Hazardous Materials, including the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§9601 et seq. (“CERCLA”), the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., the Federal Land Policy and Management Act, 43 U.S.C. §§ 1701 et seq., the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §§ 6901 et seq. (“RCRA”), the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the Clean Water Act, 33 U.S.C. §§ 1251 et seq., the Toxic

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Substances Control Act, 15 U.S.C. §§ 2601 et seq., and  the Emergency Planning and Community Right to Know Act, 42 U.S.C. §§ 11001 et seq., each as amended, and their state or local counterparts or equivalents.

“Environmental Permit” shall have the meaning given such term in Section 3.15.

“Equity Interests” of any person shall mean any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated) equity of such person, including any preferred stock, any limited or general partnership interest and any limited liability company membership interest.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time.

“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with any Borrower or any Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

“ERISA Event” shall mean (a) any Reportable Event; (b) a failure to satisfy the minimum funding standard under Section 412 or 430 of the Code or Section 302 or 303 of ERISA, whether or not waived, or the arising of a lien or other encumbrance or the provision of security under Section 412 or 430 of the Code or Section 302, 303 or 4068 of ERISA; (c) the filing pursuant to Section 412(c) of the Code or Section 303(c) of ERISA of an application for, or receipt of, a waiver of the minimum funding standard with respect to any Plan, the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (d) a withdrawal by any Borrower, any Subsidiary, or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (e) the incurrence by any Borrower, any Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA; (f) the receipt by any Borrower, any Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan under Section 4042 of ERISA, or the occurrence of any event or condition which would reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (g) the incurrence by any Borrower, any Subsidiary or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (h) the receipt by any Borrower, any Subsidiary or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Borrower, any Subsidiary or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, in endangered or critical status, or insolvent or in reorganization, within the meaning of Title IV of ERISA; (i) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which would reasonably be expected to result in liability to any Borrower or any Subsidiary; or (j) the filing of a notice of intent to terminate any Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, the filing under Section

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4041(c) of ERISA of a notice of intent to terminate any Plan, or the termination of any Plan under Section 4041(c) of ERISA.

“Eurocurrency Borrowing” shall mean a Borrowing comprised of Eurocurrency Loans.

“Eurocurrency Loan” shall mean any Loan bearing interest at a rate determined by reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.

“Event of Default” shall have the meaning assigned to such term in Section 8.01.

“Escrow Agent” shall mean Ankura Trust Company, LLC in its capacity as escrow agent under the Escrow Agreement.

“Escrow Agreement” means an escrow agreement, dated as of the Effective Date, in form and substance reasonably acceptable to the Collateral Agent and the Borrowers.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Excluded Account” means any payroll, trust and tax withholding accounts, in each case, to the extent used solely for such purpose and funded in the ordinary course of business.

“Excluded Subsidiaries” shall mean, collectively, (i) the Interstate Ditch Company, (ii) Wyoming Quality Healthcare Coalition, LLC, (iii) Venture Fuels Partnership, and (iv) the A/R Securitization Seller.

“Excluded Taxes” shall mean, with respect to any Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Borrower under any Loan Document, (a) Taxes imposed on (or measured by) its net income (however denominated), franchise Taxes or branch profits Taxes in each case, (i) imposed as a result of such Agent, Lender or other recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes (b) in the case of a Lender, any U.S. federal withholding Tax that is imposed pursuant to law in effect at the time such Lender becomes a party to this Agreement (except in the case of an assignee pursuant to a request by the Administrative Borrower under Section 2.17(b)) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive amounts from a Borrower with respect to such withholding tax pursuant to Section 2.15, (c) any Tax that is attributable to such recipient’s failure to comply with Section 2.15(e) or (f) and (d) any withholding Tax imposed under FATCA.

“Executive Order” shall have the meaning assigned to such term in Section 3.21(a).

“Existing Indenture Documents” shall mean, collectively, the 2021 Indenture Documents and the 2024 Indenture Documents.

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“Existing Noteholders” shall mean, collectively, the 2021 Noteholders and the 2024 Noteholders.

“Existing Trustees” shall mean, collectively, the 2021 Indenture Trustee and the 2024 Indenture Trustee.

“Exit Fee” shall have the meaning assigned to such term in Section 2.10(d).

“Extraordinary Receipts” means any cash received by or paid to any Borrower on account of any foreign, United States, state or local tax refunds, pension plan reversions, judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action, condemnation awards (and payments in lieu thereof), indemnity payments received and any purchase price adjustment received in connection with any purchase agreement and proceeds of insurance.

“Facility” shall mean the Commitments and the Loans made hereunder.

“Fair Market Value” shall mean the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Board of Directors of each Borrower (unless otherwise provided in this Agreement).

“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version to the extent that it is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.

“Federal Funds Effective Rate” shall mean, for any day, the weighted average (rounded upward, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average (rounded upward, if necessary, to the next 1/100 of 1%) of the quotations for the day of such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“Fees” shall mean the Upfront Fee, the Exit Fee, the Administrative Agent Fee and all other fees due and payable to any Agent, the Required Lenders or any Lender under any of the Loan Documents.

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“Final DIP Order” shall mean an order of the Bankruptcy Court (as the same may be amended, supplemented, or modified from time to time after entry thereof in accordance with the terms hereof) in form and substance reasonably satisfactory to the Supermajority Lenders (but in any event containing the Remedies Provision), approving, on a final basis, the Loan Documents and the transactions contemplated thereby and providing the Agents, the Lenders and the other Indemnitees with customary releases acceptable to the Supermajority Lenders.

“Final DIP Order Entry Date” shall mean the date on which the Final DIP Order is entered on the docket of the Bankruptcy Court.

“Final Order” means an order or judgment of the Bankruptcy Court, as entered on the docket of the Bankruptcy Court, that has not been reversed, stayed, modified, or amended, and as to which: (a) the time to appeal, seek review or rehearing or petition for certiorari has expired and no timely-filed appeal or petition for review, rehearing, remand or certiorari is pending; or (b) any appeal taken or petition for certiorari filed has been resolved by the highest court to which the order or judgment was appealed or from which certiorari was sought, provided, however, that the possibility that a motion under Rule 59 or Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Federal Rules of Bankruptcy Procedure or other rules governing procedure in cases before the Bankruptcy Court, may be filed with respect to such order shall not cause such order not to be a Final Order.

“Financial Officer” of any person shall mean the Chief Financial Officer, principal accounting officer, Treasurer, Assistant Treasurer or Controller of such person.

“Final Roll-Up Loans” means shall mean the Roll-Up Loans that correspond to New Money Loans made, or, to the extent the Final DIP Order so provides, deemed made pursuant to Section 2.01(c) and/or 2.01(d) and that are deemed made in accordance with the terms of the Final DIP Order.

“Final Upfront Fee” shall have the meaning assigned to such term in Section 2.10(d).

“Flood Insurance Laws” shall mean, collectively, (i) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

“Foreign Lender” shall mean any Lender that is not a United States person within the meaning of Section 7701(a)(30) of the Code.

“GAAP” shall mean generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis, subject to the provisions of Section 1.02.

“Governmental Authority” shall mean the government of the United States of America, or any other nation, or of any political subdivision thereof, whether state or local, and

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any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Guarantee” of or by any Person (for purposes of this definition, the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (for purposes of this definition, the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business or customary indemnification agreements entered into in the ordinary course of business in connection with obligations that do not constitute Indebtedness. The amount of any Guarantee at any time shall be deemed to be an amount equal to the maximum stated or determinable amount of the primary obligation in respect of which such Guarantee is incurred, unless the terms of such Guarantee expressly provide that the maximum amount for which such Person may be liable thereunder is a lesser amount (in which case the amount of such Guarantee shall be deemed to be an amount equal to such lesser amount).

“Hazardous Materials” shall mean all pollutants, contaminants, chemicals, hazardous or toxic materials, substances and wastes, including, without limitation, explosive or radioactive substances or petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls or radon gas, of any nature, in each case subject to regulation or which can give rise to liability under any Environmental Law.

“Incremental Amendment” means an Incremental Amendment, in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders, among the Borrower, the Administrative Agent and one or more Incremental Lenders, establishing Incremental Loans and effecting such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.06.

“Incremental Lender” means a Lender with an outstanding Incremental Loan.

“Incremental Loans” means any Loans made pursuant to Section 2.06 (but shall not include any Incremental Roll-Up Loans).

“Incremental Roll-Up Loans” means any Roll-Up Loans that correspond to Incremental Loans and that are deemed made in accordance with the terms of the Final DIP Order.

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“Indebtedness” of any person shall mean, without duplication, (a) all obligations of such person for borrowed money, (b) all obligations of such person evidenced by debentures, promissory notes or similar instruments evidencing obligations for borrowed money, (c) all obligations of such person issued or assumed as the deferred purchase price of property or services (other than current trade liabilities, but not any refinancings, extensions, renewals or replacements thereof, incurred in the ordinary course of business and maturing within 365 days after the incurrence thereof), (d) all Indebtedness of others secured by any Lien on property owned or acquired by such person, whether or not the obligations secured thereby have been assumed or are limited in recourse, but limited to the Fair Market Value of such property, (e) all Guarantees by such person of Indebtedness of others, (f) all Capital Lease Obligations of such person, (g) all payments that such person would have to make in the event of an early termination, on the date Indebtedness of such person is being determined, in respect of outstanding Swap Agreements, and (h) the principal component of all obligations, contingent or otherwise, of such person as an account party in respect of standby letters of credit, but not trade letters of credit, but only to the extent such standby letters of credit have been drawn upon and not reimbursed thereafter within five (5) Business Days.  The Indebtedness of any person shall include the Indebtedness of any partnership in which such person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such person in respect thereof.  The amount of any such Indebtedness shall be the principal amount thereof and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.  Indebtedness shall not include (x) with respect to any equity-linked security, the equity credit reflected on the most recent balance sheet of the Borrowers delivered pursuant to Section 5.04(a), (y) obligations not incurred in connection with borrowed money, except to the extent expressly provided above, and without limitation shall not include (i) bid bonds, performance bonds, completion bonds, surety bonds, appeal bonds and other similar bonds, guarantees or obligations of the Borrowers, in each case that are in existence on the Effective Date, (ii) purchase price adjustments incurred in connection with the disposition of any assets, (iii) indemnification obligations, (iv) letters of credit, bank guarantees or similar instruments to secure any of the foregoing, to the extent such letters of credit, bank guarantees or similar instruments have not been drawn upon or, if drawn upon, have not been reimbursed thereafter within five (5) Business Days, (v) obligations resulting from cash management services, any cash pooling or netting or set-off arrangements and (vi) endorsements of instruments for collection in the ordinary course of business, and (z) any liabilities of any Borrower to any Borrower.

“Indemnified Taxes” shall mean (a) all Taxes other than Excluded Taxes and (b) Other Taxes.

“Indemnitee” shall have the meaning assigned to such term in Section 10.05(b).

“Information” shall have the meaning assigned to such term in Section 3.13(a).

“Initial Borrowing” shall have the meaning assigned to such term in Section 2.01(a).

“Initial Budget” shall have the meaning assigned to such term in Section 3.22.

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“Initial Roll-Up Loans” shall mean the Roll-Up Loans that correspond to New Money Loans made pursuant to Section 2.01(b) and that are deemed made in accordance with the terms of the Final DIP Order.

“Initial Upfront Fee” shall have the meaning assigned to such term in Section 2.10(c).

“Intellectual Property” means all intellectual property now owned or hereafter acquired by any Borrower or Subsidiary, as the case may be, including patents, copyrights, trademarks, trade secrets and licenses of any of the foregoing.

“Interest Election Request” shall mean a request by the Administrative Borrower to convert or continue a Borrowing in accordance with Section 2.05.

“Interest Payment Date” shall mean (a) with respect to any Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and the date of any refinancing or conversion of such Borrowing with or to a Borrowing of a different Type, and (b) with respect to any ABR Loan, the last day of each calendar month.

“Interest Period” shall mean, as to any Eurocurrency Borrowing, the period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as applicable, and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is one month thereafter, or, if sooner, the date any Eurocurrency Borrowing is converted to an ABR Borrowing in accordance with Section 2.05 or repaid or prepaid in accordance with Section 2.07, 2.08 or 2.09; provided, however, that, if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day.  Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.

“Interim DIP Order” shall mean an order of the Bankruptcy Court (as the same may be amended, supplemented, or modified from time to time after entry thereof in accordance with the terms hereof) in the form set forth as Exhibit C, with changes to such form as are reasonably satisfactory to the Supermajority Lenders in their sole discretion (but in any event containing the Remedies Provision), approving the Loan Documents and the transactions contemplated thereby on an interim basis.

“Interim DIP Order Entry Date” shall mean the date on which the Interim DIP Order is entered on the docket of the Bankruptcy Court.

“Interpolated Screen Rate” shall mean, in relation to LIBO Rate for any Loan, the rate which results from interpolating on a linear basis between: (a) the rate appearing on the LIBOR01 page of Reuters BBA Libor Rates Intercontinental Exchange Benchmark Administration Ltd (ICE) (or on any successor or substitute page of such service) for the longest period (for which that rate is available) which is less than the Interest Period; and (b) the rate appearing on the LIBOR01 page of Reuters BBA Libor Rates Intercontinental Exchange

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Benchmark Administration Ltd (ICE) (or on any successor or substitute page of such service ) for the shortest period (for which that rate is available) which exceeds the Interest Period each as of approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.

“Inventory” has the meaning specified in the UCC.

“Inventory Appraisal” shall have the meaning assigned to such term in Section 5.04(k).

“Inventory Appraisers” shall have the meaning assigned to such term in Section 5.04(k).

“Investment” shall have the meaning assigned to such term in Section 6.01.

“Laws” shall have the meaning assigned to such term in the definition of “Mining Laws”.

“Lender” shall mean each Person listed on Schedule 1.01(A) to this Agreement with a Commitment, as well as any Person that becomes a “Lender” hereunder pursuant to Section 10.04.

“LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any Interest Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m., London time, on the Quotation Day for such Interest Period by reference to the British Bankers’ Association Interest Settlement Rates or any successor rates thereto if the British Bankers Association is no longer making such rates available for deposits in the currency of such Borrowing (as reflected on the applicable Reuters screen page), for a period equal to such Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the Interpolated Screen Rate, on the Quotation Day for such Interest Period.  Notwithstanding the foregoing, for purposes of this Agreement, LIBO Rate shall never be an amount less than zero (0).

“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, hypothecation, pledge, encumbrance, charge or security interest in or on such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities (other than securities representing an interest in a joint venture that is not a Subsidiary), any purchase option, call or similar right of a third party with respect to such securities.

“Loan Documents” shall mean this Agreement, any Incremental Amendment, the Security Documents, the Administrative Agent Fee Letter, any Note and any other agreement, document or instrument entered into now, or in the future, by any Borrower, on the one hand, and the Administrative Agent, the Collateral Agent, any Lender and/or any other Secured Party, on the other hand, in connection with any of the foregoing.

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“Loans” shall mean the New Money Loans and the Roll-Up Loans.

“Local Time” shall mean New York City time.

“M&E Appraisal” shall have the meaning assigned to such term in Section 5.04(k).

“M&E Appraisers” shall have the meaning assigned to such term in Section 5.04(k).

“Margin Stock” shall have the meaning assigned to such term in Regulation U.

“Material Adverse Effect” shall mean a material adverse effect on (a) the business, assets, operations or condition (financial or otherwise) of the Administrative Borrower individually, and the Borrowers, taken as a whole, (b) the validity or enforceability of any Loan Document or the validity, enforceability or collectability of the Loans or the Loan Documents generally or any material portion of the Loans or the Loan Documents, (c) the rights and remedies of any Agent and/or any Lender with respect to matters arising under any Loan Document, (d) the ability of each Borrower to perform its obligations under any Loan Document to which it is a party, or (e) the status, existence, perfection, priority or enforceability of the Collateral Agent’s security interests in and Liens on the Collateral; provided that in no event shall the commencement or continuation of the Cases give rise to a Material Adverse Effect.

“Material Contract” shall mean and include (i) any agreement evidencing, securing or pertaining to any Material Indebtedness, (ii) any Material Lease, (iii) any material Mining Lease, (iv) any Take-or-Pay Contract; (v) any operating lease where annual rentals exceed $1,000,000, (vi) any supply or production agreement having specified annual payments in excess of $1,000,000, (vii) any sales or customer agreement having specified annual payments in excess of $1,000,000, (viii) any management, consulting, advisory or similar services agreement between, on the one hand, a Borrower or a Subsidiary, and, on the other hand, a Person that is not a Borrower, (ix) the Existing Indenture Documents, (x) any employment agreement with members of management of any Borrower or any Subsidiary or other key personnel of any Borrower or any Subsidiary, and any stock option plan, employee incentive plan or similar type plan, (xi) any warrant, option or similar agreement giving any Person a right to acquire an interest in any Borrower or any Subsidiary, and (xii) any other contract, agreement, permit or license, the failure to comply with which, or the termination (without contemporaneous replacement) of which, could reasonably be expected to have a Material Adverse Effect.

“Material Indebtedness” shall mean, collectively, (a) Indebtedness under the 2021 Indenture Documents; (b) Indebtedness under the 2024 Indenture Documents; (c) Indebtedness under the A/R Securitization Facility Documents; (d) any other Indebtedness (other than the Loans) that, individually or together with all other Indebtedness, has an aggregate principal balance in excess of $3,750,000.

“Material Lease” shall mean any Real Property Lease or other contractual obligations in respect of Material Leased Real Property.

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“Material Leased Real Property” means any Real Property subject to a Real Property Lease with a Borrower, as lessee, with annual minimum royalties, rents or any similar payment obligations, in excess of $1,000,000 in the most recently ended fiscal year.

“Material Owned Real Property” means any Real Property owned or acquired in fee by any Borrower having a book value in excess of $1,000,000.

“Material Real Property” shall mean the Material Leased Real Property or the Material Owned Real Property, as the context may require.

“Maturity Date” means the earliest of (a)  February 15, 2020, (b) the date of conversion of any of the Cases to a case under Chapter 7 of the Bankruptcy Code without the prior written consent of the Supermajority Lenders, (c) the date of dismissal of any of the Cases without the prior written consent of the Supermajority Lenders, (d) the date of appointment in any Case of a trustee without the prior written consent of the Supermajority Lenders, (e) the appointment of an examiner with expanded powers without the prior written consent of the Supermajority Lenders, (f) the date of consummation of a sale of all or substantially all of the Borrowers’ assets, whether under Section 363 of the Bankruptcy Code or otherwise, (g) the Consummation Date of any Chapter 11 Plan, (h) the date of termination in whole of the Commitments pursuant to Section 8.01, or (i) thirty five days after entry of the Interim DIP Order (or such later date as agreed by the Supermajority Lenders), if the Final DIP Order has not been entered by such date.

“Maximum Rate” shall have the meaning assigned to such term in Section 11.09.

“Milestones” shall have the meaning assigned to such term in Section 5.15.

“Mine” means any excavation or opening into the earth now and hereafter made from which Coal or other minerals are or can be extracted on or from any of the Real Properties in which any Borrower holds an ownership, leasehold or other interest.

“Mining Laws” means any and all applicable federal, state, local and foreign statutes, laws, regulations, guidance, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions or common law causes of action (“Laws”) relating to mining operations and activities, or oil, natural gas, minerals, and other hydrocarbons and their constituents production operations and activities.  Mining Laws shall include but not be limited to, the Mineral Lands Leasing Act of 1920, the Federal Coal Leasing Amendments Act, the Surface Mining Control and Reclamation Act, all other land reclamation and use statutes and regulations relating to Coal mining, the Federal Coal Mine Health and Safety Act of 1969, the Black Lung Benefits Revenue Act of 1977, the Black Lung Benefits Reform Act of 1977, the Coal Industry Retiree Health Benefits Act of 1992, the Federal Mine Safety and Health Act of 1977, and the Occupational Safety and Health Act of 1970, each as amended, and their state and local counterparts or equivalents.

“Mining Lease” shall mean a lease, license or other use agreement held on the Petition Date or thereafter acquired which provides any Borrower or any Subsidiary the real property and water rights, other interests in land, including Coal, mining and surface rights, easements, rights of way and options, and rights to harvest or produce timber, Coal, minerals, oil,

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natural gas and other hydrocarbons and their constituents (including, without limitation, coalbed methane and gob gas) (i) currently operated by any Borrower or any Subsidiary or (ii) part of any of Borrowers’ mine plans.  Leases which provide any Borrower or any Subsidiary the right to construct and operate a preparation plant and related facilities on the surface of the Real Property containing such reserves shall also be deemed a Mining Lease.

“Mining Permits” means any and all permits, licenses, registrations, notifications, exemptions and any other authorization required under any applicable Mining Law or otherwise necessary to: (i) recover Coal from any Mine being operated by any Borrower or any Subsidiary; or (ii) produce minerals, oil, natural gas and other hydrocarbons and their constituents from any well operated by any Borrower or any Subsidiary.

“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA with respect to which any Borrower, any Subsidiary or any ERISA Affiliate (a) is making or has an obligation to make contributions, (b) has within any of the preceding six plan years made or had an obligation to make contributions or (c) otherwise could incur liability.

“Net Cash Proceeds” shall mean:

(a)           100% of the cash proceeds (plus 100% of the net cash proceeds of any noncash consideration) of any Asset Disposition or Casualty and Condemnation Award actually received by any Borrower (whether in a single or a series of related transactions), or any of its Subsidiaries from any Asset Disposition or Casualty and Condemnation Award after the Petition Date including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, net of (i) attorneys’ fees, accountants’ fees, investment banking transaction fees or commissions, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, required debt payments and required payments of other obligations relating to the applicable asset, other customary expenses and brokerage, consultant and other costs fees, expenses or commissions in each case that are customary, reasonable, documented, out-of-pocket and actually incurred in connection therewith and (ii) Taxes paid or payable as a result thereof,

(b)           100% of the cash proceeds (plus 100% of the net cash proceeds of any noncash consideration) from the incurrence, issuance or sale by any Borrower or any Subsidiary of any Indebtedness not expressly permitted to be incurred under Section 6.02, net of Taxes paid or payable as a result thereof.

For purposes of calculating the amount of Net Cash Proceeds, fees, commissions and other costs and expenses payable to any Borrower or any Affiliate thereof shall be disregarded.

Notwithstanding the foregoing, as it relates to any Asset Disposition that constitutes a sale of all or substantially all of the assets of the Borrowers pursuant to section 363 of the Bankruptcy Code, the definition of “Net Cash Proceeds” shall mean “Net Sale Proceeds” as defined in the SAPSA.

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“New Money Loans” shall mean the term loans made by the Lenders to the Borrowers pursuant to Section 2.01 and any Incremental Loans made pursuant to Section 2.06.

“Non-Wholly-Owned Subsidiary” shall mean, as to any Person, each Subsidiary of such Person that is not a Wholly Owned Subsidiary of such Person.

“Notes” means a promissory note of the Borrowers payable to any Lender (and its registered assigns), delivered pursuant to a request made pursuant to Section 2.07 in substantially the form attached hereto as Exhibit D, evidencing the aggregate indebtedness of the Borrowers to such Lender resulting from the Loans made by such Lender.

“Obligations” shall mean all amounts owing to any of the Agents or any Lender pursuant to the terms of this Agreement or any other Loan Document (in each case, including interest accruing or monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding).

“OFAC” shall have the meaning assigned to such term in Section 3.21(b)(iv).

“Organizational Documents” means, for any Person, its constituent or organizational documents, including: (a) in the case of any limited partnership, the certificate of limited partnership and limited partnership agreement for such Person; (b) in the case of any limited liability company, the articles of formation and operating agreement for such Person; and (c) in the case of a corporation, the certificate or articles of incorporation and the bylaws or memorandum and articles of association for such Person.

“Other Connection Taxes” means Taxes imposed as a result of a present or former connection between an Agent or Lender and the jurisdiction imposing such Tax (other than connections arising from such Agent or Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Taxes” shall mean all present or future stamp, documentary, intangible, recording, filing or similar Taxes arising from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, the Loan Documents, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.17(b)).

“Participant” shall have the meaning assigned to such term in Section 10.04(c).

“Participant Register” shall have the meaning assigned to such term in Section 10.04(c).

“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

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“Permit” shall mean any and all permits, approvals, registrations, notifications, exemptions and any other regulatory authorization, in each case, from a Governmental Authority having jurisdiction.

“Permitted Business” means any business or business activity conducted by the Borrowers or its Subsidiaries on the Petition Date and any business or business activities incidental or related thereto.

“Permitted Real Estate Encumbrances” shall mean (a) Liens and other encumbrances permitted by clauses (a), (e), (f) and (h) of Section 6.03; (b) any interest or title of, or Liens created by, a lessor under any leases or subleases entered into by Borrower or any Subsidiary, as tenant, in the ordinary course of business and any precautionary UCC financing statement filing in respect of operating leases (and not any Indebtedness) entered into in the ordinary course of business; and (c) the following encumbrances which do not, in any case, individually or in the aggregate, materially detract from the value of any Mine subject thereto or interfere with the ordinary conduct of the business or operations of any Borrower as presently conducted on, at or with respect to such Mine and as to be conducted following the Petition Date: (i) encumbrances typically found upon Real Property used for mining purposes in the applicable jurisdiction in which the applicable Real Property is located to the extent such encumbrances would be permitted or granted by a prudent operator of mining property similar in use and configuration to such Real Property (e.g., surface rights agreements, wheelage agreements and reconveyance agreements); (ii) rights and easements of owners (A) of undivided interests in any of the Real Property where the applicable Borrower or Subsidiary owns less than 100% of the fee interest, (B) of interests in the surface of any Real Property where the applicable Borrower or Subsidiary does not own or lease such surface interest, (C) and lessees, if any, of coal or other minerals (including oil, gas and coalbed methane) where the applicable Borrower or Subsidiary does not own such coal or other minerals, and (D) and lessees of other coal seams and other minerals (including oil, gas and coalbed methane) not owned or leased by such Borrower or Subsidiary; (iii) with respect to any Real Property in which any Borrower or any Subsidiary holds a leasehold interest, terms, agreements, provisions, conditions, and limitations (other than royalty and other payment obligations which are otherwise permitted hereunder) contained in the leases granting such leasehold interest and the rights of lessors thereunder (and their heirs, executors, administrators, successors, and assigns); (iv) farm, grazing, hunting, recreational and residential leases with respect to which Borrower or any Subsidiary is the lessor encumbering portions of the Real Properties to the extent such leases would be granted or permitted by, and contain terms and provisions that would be acceptable to, a prudent operator of mining properties similar in use and configuration to such Real Properties; (v) royalty and other payment obligations to sellers or transferors of fee coal or lease properties to the extent such obligations constitute a lien not yet delinquent; (vi) rights of others to subjacent or lateral support and absence of subsidence rights or to the maintenance of barrier pillars or restrictions on mining within certain areas as provided by any Mining Lease, unless in each case waived by such other person; and (vii) rights of repurchase or reversion when mining and reclamation are completed.

“person” or “Person” shall mean any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company or government, individual or family trusts, or any agency or political subdivision thereof.

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“Petition Date” shall have the meaning specified in the recitals hereof.

“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA which is maintained or contributed to by any Borrower, any Subsidiary or any ERISA Affiliate or with respect to which any Borrower, any Subsidiary or any ERISA Affiliate could incur liability (including under Section 4069 of ERISA).

“Platform” shall have the meaning assigned to such term in Section 10.17(b).

“Pre-Petition Debt” shall mean, collectively, the Indebtedness of each Debtor outstanding and unpaid on the date on which such Person becomes a Debtor.

“Pre-Petition Payment” shall mean a payment, directly or indirectly, (by way of adequate protection or otherwise) of principal or interest or otherwise on account of any (i) Pre-Petition Debt, (ii) “critical vendor payments” or (iii) trade payables (including, without limitation, in respect of reclamation claims) or other pre-petition claims against any Debtor.

“Prime Rate” means the rate of interest quoted in The Wall Street Journal, Money Rates Section, as the “U.S. Prime Rate” (or its successor), as in effect from time to time.  The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer.  The Administrative Agent or any Lender may make commercial loans or other loans at rates of interest at, above, or below the Prime Rate.  Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.

“Prior Permitted Liens” shall mean (a) Liens granted by the Borrowers in favor of third parties that were perfected subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code and (b) Liens listed on Schedule 1.01(B) hereto.

“Professional Persons” shall have the meaning assigned to such term in the Interim DIP Order, prior to the entry of the Final DIP Order, and the Final DIP Order thereafter.

“Prohibited Plan or Sale” shall have the meaning assigned to such term in the Interim DIP Order (and, when applicable, the Final DIP Order).  For the avoidance of doubt, a “Prohibited Plan or Sale” shall include any Chapter 11 Plan with terms and conditions that are inconsistent with the terms of the SAPSA.

“Projections” shall mean any projections and any forward-looking statements (including statements with respect to booked business) of such entities (or of the Borrowers and their Subsidiaries) furnished to the Lenders or the Administrative Agent by or on behalf of any Borrower or any of its Subsidiaries prior to the Effective Date.

“Quotation Day” shall mean, with respect to any Eurocurrency Borrowing and any Interest Period, the day on which it is market practice in the relevant interbank market for prime banks to give quotations for deposits in the currency of such Borrowing for delivery on the first

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day of such Interest Period.  If such quotations would normally be given by prime banks on more than one day, the Quotation Day will be the last of such days.

“Real Property” shall mean, collectively, all right, title and interest of any Borrower or any Subsidiary (including, without limitation, any leasehold, mineral estate, or Coal, oil, natural gas or other hydrocarbon and their constituents leasehold) in and to any and all parcels of real property owned or operated by any Borrower or any Subsidiary, whether by lease, license or other use agreement, together with, in each case, all improvements and appurtenant fixtures (including, without limitation, all preparation plants or other Coal processing facilities and loadout and other transportation facilities), easements and other property and rights incidental to the ownership, lease or operation thereof.

“Real Property Lease” shall mean any lease, license, letting, concession, occupancy agreement, sublease, farm-in, farm-out, joint operating agreement, easement or right of way to which such Person is a party and is granted a possessory interest in or a right to use or occupy all or any portion of the Real Property (including, without limitation, the right to extract Coal, minerals oil, natural gas and other hydrocarbons and their constituents from any portion of Real Property not owned in fee by such Person) and every amendment or modification thereof, including with respect to the Borrowers, without limitation, the leases with respect to Real Property and any contractual obligation with respect to any of the foregoing.

“Receivables Equity” shall mean the Equity Interests of Cloud Peak Energy Receivables LLC.

“Reclamation Laws” shall mean all Laws, rules, and regulations relating to mining reclamation or reclamation liabilities including the Surface Mining Control and Reclamation Act of 1977, as amended, and its state and local counterparts or equivalents, including, without limitation, those applicable in Montana and Wyoming state laws, rules and regulations.

“Register” shall have the meaning assigned to such term in Section 10.04(b).

“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Related Parties” shall mean, with respect to any specified person, such person’s partners (general and limited), shareholders, directors, members, principals, agents, advisors, officers, professionals (including counsel), subsidiaries and Affiliates, and the partners (general and limited), shareholders, directors, members, principals, agents, advisors, officers, professionals (including counsel) of such Affiliates.

“Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or depositing in, into or onto the Environment or within or from buildings and structures.

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“Released Parties” shall mean each Agent, each Lender and each of their respective Related Parties, subsidiaries, affiliates, officers, directors, employees, agents, attorneys, predecessors, successors and assigns, both present and former.

“Remedies Notice Period” shall mean the period commencing on the date a Termination Declaration is delivered pursuant to Section 8.01 and ending on the date that is five (5) Business Days thereafter.

“Remedies Provision” shall mean a provision of the relevant DIP Order that provides that:

(a)           the automatic stay in the Cases otherwise applicable to the Agents and the Lenders shall be modified so that, immediately after the Remedies Notice Period, the Required Lenders may direct the Agents to exercise all rights and remedies in accordance with the Loan Documents (subject to the funding in full of the Carve-Out Reserve) including without limitation, exercising rights of setoff or foreclosing on all or a portion of the Collateral, occupying the Borrowers’ premises, or a sale or disposition of the Collateral, and shall be permitted to satisfy the relevant Obligations, the Lender’s Superpriority Claim and Lien on the Collateral;

(b)           during the Remedies Notice Period, the only basis on which the Borrowers and/or the Creditors’ Committee (if appointed) shall be entitled to seek an emergency hearing within the Remedies Notice Period with the Bankruptcy Court shall be to contest whether an Event of Default has occurred and/or is continuing and the Agents and the Required Lenders shall consent to such emergency hearing;

(c)           unless during the Remedies Notice Period, the Bankruptcy Court determines that an Event of Default has not occurred, or the Borrowers cure the Event of Default (to the extent curable under the Loan Documents) that was the basis for the delivery of a Termination Declaration in accordance with the Loan Documents and the DIP Orders, the automatic stay imposed under Section 105 or 362(a) of the Bankruptcy Code or otherwise, as to the Lenders and the Agents, shall automatically be terminated at the end of the Remedies Notice Period without further notice or order; and

(d)           upon expiration of the Remedies Notice Period, the Agents, at the direction of the Required Lenders, shall be permitted to exercise all remedies set forth herein, in the Loan Documents, and as otherwise available at law without further order of or application or motion to the Bankruptcy Court.

“Reportable Event” shall mean any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30-day notice period referred to in Section 4043(a) of ERISA has been waived, with respect to a Plan.

“Required Lenders” shall mean, at any time, Lenders the sum of whose outstanding Loans and Commitments at such time represents at least a majority of all outstanding Loans and Commitments.

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“Reserves” shall mean any reserves established by the Supermajority Lenders in good faith in their reasonable discretion and notified to the Administrative Borrower to reflect any events, conditions, contingencies, risks or other factors that have not been reflected in the setting of the Advance Rate on the Effective Date and which the Supermajority Lenders reasonably and in good faith determine could be expected to adversely affect the Collateral (or the value thereof) or the Liens securing the Secured Obligations or the ability of the Secured Parties to realize the value of the Collateral; provided that (a) at any time, the aggregate amount of all Reserves shall not exceed $5,000,000, (b) it is acknowledged and agreed that the amount of “Reserves” as of the Effective Date is $0 and (c) no “Reserves” may be imposed in respect of an event that causes the destruction, damage or sale of any machinery, equipment or inventory resulting in a degradation in the value of any Collateral to the extent that such Collateral has been removed from the Borrowing Base following such event pursuant to Section 5.04(k).

“Responsible Officer” of any person shall mean any executive officer or Financial Officer of such person and any other officer or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement.

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any shares of any class of capital stock of any Borrower or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such shares of capital stock of any Borrower or any option, warrant or other right to acquire any such shares of capital stock of any Borrower.

“Roll-Up Loans” shall mean Loans deemed made hereunder used to refinance and discharge Secured Notes Debt (as defined in the Interim DIP Order and, when entered, the Final DIP Order) in accordance with the Final DIP Order.

“Sale and Lease-Back Transaction” shall mean any arrangement, directly or indirectly, with any person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

“Sanctions” shall mean any sanctions administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, or Her Majesty’s Treasury.

“SAPSA” shall mean that certain Amended and Restated Sale and Plan Support Agreement, dated as of May 9, 2019, among the Specified Borrowers, the other Borrowers party thereto, the 2021 Noteholders party thereto and the 2024 Noteholders party thereto, as in effect on the Effective Date and as may be amended or modified in accordance with this Agreement.

“SEC” shall mean the Securities and Exchange Commission or any successor thereto.

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“Second Borrowing” shall have the meaning assigned to such term in Section 2.01(a).

“Secured Obligations” shall mean the “Obligations” as defined in the Security Agreement.

“Secured Parties” shall mean the “Secured Parties” as defined in the Security Agreement.

“Security Agreement” shall mean that certain Debtor-in-Possession Pledge and Security Agreement dated as of the Effective Date among the Borrowers and the Collateral Agent (in its capacities specified therein).

“Security Documents” shall mean the Security Agreement, the Control Agreements, the DIP Orders and each of the other instruments and documents executed and delivered pursuant to any of the foregoing, pursuant to Section 5.17(b) of this Agreement or which otherwise pledge, grant or purport to pledge or grant a security interest or lien on any property as Collateral for the Secured Obligations.  The Security Documents shall not limit the grant of Collateral pursuant to the DIP Orders.

“Segregated Account” shall mean an account of the Escrow Agent with the account number of 01893484573, maintained at the Segregated Account Depository, which shall at all times be subject to the Escrow Agreement.

“Segregated Account Depository” shall mean Huntington National Bank.

“Specified Borrowers” shall mean, collectively, CPE, CPER and Cloud Peak Energy Finance Corp.

“Specified Tax Condition” shall mean that the Liens securing the Secured Obligations for the benefit of the Secured Parties shall be senior in priority under applicable state, federal or other applicable laws to any liens securing Specified Taxes.

“Specified Taxes” has the meaning given to such term in Section 5.03.

“Statutory Reserves” shall mean, with respect to any currency, any reserve, liquid asset or similar requirements established by any Governmental Authority of the United States of America or of the jurisdiction of such currency or any jurisdiction in which Loans in such currency are made to which banks in such jurisdiction are subject for any category of deposits or liabilities customarily used to fund loans in such currency or by reference to which interest rates applicable to Loans in such currency are determined.

“Subsidiary” shall mean, with respect to any person (herein referred to as the “parent”), any corporation, partnership, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, directly or indirectly, owned, Controlled or held by the parent or one or more subsidiaries of the parent, or (b) whose accounts are consolidated with the accounts of the

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parent or one or more subsidiaries of the parent in such parent’s or subsidiary’s SEC filings.  Unless the context otherwise requires, Subsidiary shall mean a Subsidiary of a Borrower.

“Supermajority Lenders” shall mean, at any time, Lenders the sum of whose outstanding Loans and Commitments at such time represents at least 60% of all outstanding Loans and Commitments.

“Superpriority Claim” means a claim against any Debtor in any of the Cases which is an administrative expenses claim having priority over any or all administrative expenses of the kind that are specified in, or contemplated by, Sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 546(c), 726, 1114 or any other provisions of the Bankruptcy Code.

“Swap Agreement” shall mean any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions.

“Take-or-Pay Contracts” shall mean, collectively, (a) that certain Rail Transportation Amended and Restated Agreement BNSF-C-12820, effective as of January 1, 2018, by and between BNSF Railway Company, a Delaware corporation, and Cloud Peak Energy Logistics LLC, an Oregon limited liability company and (b) that certain Restated Shipping Agreement — Cloud Peak Energy, effective as of July 1, 2018, by and between Cloud Peak Energy Logistics LLC, an Oregon limited liability company and Westshore Terminals Limited Partnership, a limited partnership formed in British Columbia.

“Taxes” shall mean any and all present or future taxes, levies, imposts, assessments, duties (including stamp duties), deductions, charges (including ad valorem charges) or withholdings imposed by any Governmental Authority and any and all interest, additions to tax and penalties related thereto.

“Termination Declaration” shall have the meaning assigned to such term in Section 8.01(vi).

“Third Borrowing” shall have the meaning assigned to such term in Section 2.01(a).

“Transactions” shall mean the execution and delivery of this Agreement and the transactions contemplated thereby and the payment of fees and expenses related thereto.

“Type” when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined.  For purposes hereof, the term “Rate” shall include the Adjusted LIBO Rate and the Alternate Base Rate.

“UCC” shall mean (i) the Uniform Commercial Code as in effect in the applicable state of jurisdiction and (ii) certificate of title or other similar statutes relating to “rolling stock” or barges as in effect in the applicable jurisdiction.

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“Unfunded Pension Liability” of any Plan means the amount, if any, by which the value of the accumulated plan benefits under the Plan, determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value of all plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions).

“United States Tax Compliance Certificate” has the meaning assigned to such term in Section 2.15(e).

“Unpermitted Variance” shall mean actual amounts for aggregate (a) receipts and (b) disbursements, varying negatively (from the perspective of the Borrowers’ business) from such respective categories in the Budget for each of the following, without duplication: (i) with respect to receipts (excluding receipts of CPEL), by more than 20% for any Variance Period and (ii) with respect to disbursements (excluding (w) disbursements of CPEL, (x) fees, costs and expenses of Professional Persons, (y) payments in respect of Adequate Protection and (z) any collateral deposits made in favor of the Administrator (as defined in the A/R Securitization Facility Agreement) in respect of the A/R Securitization Facility), by more than 15% for any Variance Period.

“Updated Budget” shall have the meaning assigned to such term in Section 5.04(h).

“U.S. Lender” shall mean any Lender that is a United States person within the meaning of Section 7701(a)(30) of the Code.

“U.S. PATRIOT Act” shall have the meaning assigned to such term in Section 10.18.

“Variance Period” means as of the last day of any full calendar week covered in the applicable Approved Budget (commencing with the first Business Day of the second full week after the Petition Date), the period then ended measured from the first day of the first full calendar week covered in such Approved Budget; provided that such period shall in no event exceed the four calendar week period ending with the week then ended.

“Variance Report” shall have the meaning assigned to such term in Section 5.04(i).

“Weekly Draw” shall have the meaning assigned to such term in Section 2.04(b).

“Weekly Draw Request” shall mean a certificate of a Financial Officer of the Borrowers substantially in the form of Exhibit E to this Agreement, which such certificate shall: (a) confirm compliance as of the proposed date of such Weekly Draw with the conditions set forth in Sections 6.23(a) through (h) and (b) specify the following information:

(i)the aggregate amount of the requested Weekly Draw (expressed in Dollars);

(ii)the date of such Weekly Draw, which shall be a Business Day;

(iii)the aggregate amount of cash in the Debtors’ accounts after giving effect to such Weekly Draw; and

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(iv)the location and number of the account to which funds are to be disbursed.

“Wholly Owned Subsidiary” of any person shall mean a Subsidiary of such person, all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such person or another Wholly Owned Subsidiary of such person.

“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

SECTION 1.02.Terms Generally.  The definitions set forth or referred to in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “assets” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.  All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require.  Any reference to any law or regulation herein shall refer to such law or regulation as amended, modified or supplemented from time to time.  Except as otherwise expressly provided herein, any reference in this Agreement to any Loan Document shall mean such document as amended, restated, supplemented or otherwise modified from time to time.  Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Administrative Borrower notifies the Administrative Agent (which the Administrative Agent shall promptly forward to the Lenders) that the Administrative Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Administrative Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.  With respect to any amount in a currency other than Dollars, such amount shall be determined as of the date of incurrence thereof, and shall not be affected as a result of fluctuations in currency values.

SECTION 1.03.Administrative Borrower.  Each Borrower hereby appoints CPER as the borrowing agent for the Borrowers which appointment shall remain in full force and effect unless and until the Administrative Agent and the Lenders shall have received prior written notice signed by all of the Borrowers that such appointment has been revoked or that another Borrower has been appointed in such capacity.  Each Borrower hereby appoints and authorizes CPER (or its successor) (i) to provide to the Administrative Agent and the Lenders and receive from the Administrative Agent and the Lenders all notices with respect to Loans obtained for the benefit of any Borrower and all other notices and instructions under this Agreement and (ii) to take such action as CPER deems appropriate on behalf of the Borrowers and to exercise such other

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powers as are reasonably incidental thereto to carry out the purposes of this Agreement.  Any reference to any action or notice required or permitted to be taken or given hereunder and under the Loan Documents by the “Borrowers” or “each Borrower” shall be effective if such action is taken, or such notice is delivered, by the Administrative Borrower or, as applicable, a Responsible Officer thereof.

SECTION 1.04.Divisions.  For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

SECTION 1.05.Orders Control.  In the event of any discrepancy between the Interim DIP Order or, when entered, the Final DIP Order, as applicable, and any of the Loan Documents, the Interim DIP Order and, when entered, the Final DIP Order, shall control.

ARTICLE II.

THE CREDITS

SECTION 2.01.Commitments.

(a)Subject to the terms and conditions set forth herein and in the DIP Orders, each Lender severally agrees to make Loans to the Borrowers in two or three draws, the first of which (the “Initial Borrowing”) shall be funded within three Business Days of the Interim DIP Order Entry Date, the second of which (the “Second Borrowing”) shall be funded within three Business Days of the Final DIP Order Entry Date and, if the Specified Tax Condition is not satisfied on the date of the Second Borrowing, an additional borrowing (the “Third Borrowing”) shall be funded after the Final DIP Order Entry Date solely to the extent the Specified Tax Condition is then satisfied in addition to the other applicable conditions set forth in Section 4.02.  The Loans shall be made in an aggregate principal amount not to exceed the amount of such Lender’s Commitment.  The Borrowings shall be in an aggregate amount of not less than $10,000,000 and shall consist of Loans of the same Type made on the same day by the Lenders ratably according to their respective Commitments.

(b)Notwithstanding anything to the contrary, the Initial Borrowing shall be in an amount no greater than the lowest of: (i) $10,000,000; (ii) the Borrowing Base as of the Interim DIP Order Entry Date; and (iii) the amount of Loans hereunder authorized by the Bankruptcy Court in the Interim DIP Order.

(c)Notwithstanding anything to the contrary, the Second Borrowing shall be in an amount no greater than the lowest of: (i) the amount equal to (A) $35,000,000, minus (B) the amount of the Initial Borrowing; (ii) the amount equal to (A) the Borrowing Base as of the Final DIP Order Entry Date, minus (B) the amount of the Initial Borrowing; and (iii) the full amount of Loans hereunder authorized by the Bankruptcy Court in the Final DIP Order to be funded on the

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Final DIP Order Entry Date; provided that, if as of the date of the Second Borrowing, the Specified Tax Condition is not satisfied, such lowest amount shall be reduced by $11,500,000.

(d)Notwithstanding anything to the contrary, the Third Borrowing shall be in an amount no greater than the lowest of: (i) the amount equal to (A) $35,000,000, minus (B) the amount of each of the Initial Borrowing and the Second Borrowing; (ii) the amount equal to (A) the Borrowing Base as of the date of the Third Borrowing, minus (B) the amount of each of the Initial Borrowing and the Second Borrowing; and (iii) the full amount of Loans hereunder authorized by the Bankruptcy Court to be funded on the date of the Third Borrowing.

(e)The Administrative Agent, the Lenders and the Borrowers each acknowledge and agree that each Roll-Up Loan shall be deemed fully funded, in each case in accordance with the terms of the Final DIP Order (without any notice or request by the Borrower). All Roll-Up Loans shall initially be Eurocurrency Borrowings with an Interest Period of one month.

(f)Loans prepaid or repaid may not be reborrowed. For the avoidance of doubt, any unused Commitments shall terminate on the earliest of (i) the date of the borrowing of all unused Commitments, (ii) the Maturity Date and (iii) 30 days after the Final DIP Order Entry Date.

(f)Any fees paid in kind (by being added to the outstanding principal balance of the Loans) pursuant to Section 2.10 on the date that any Loan is funded shall not utilize any of the Commitments hereunder and shall not constitute part of the applicable borrowing, but shall otherwise for all purposes hereunder be treated (and shall bear interest) as outstanding Loans.

SECTION 2.02.Loans and Borrowings.

(a)Each Loan shall be made as part of a Borrowing consisting of Loans of the same Type made by the Lenders ratably in accordance with their respective Commitments.  The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

(b)Subject to Section 2.12, each Borrowing shall be comprised entirely of ABR Loans or Eurocurrency Loans as any Borrower may request in accordance herewith.  Each Lender at its option may make any ABR Loan or Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of any Borrower to repay such Loan in accordance with the terms of this Agreement and such Lender shall not be entitled to any amounts payable under Section 2.13 or 2.15 solely in respect of increased costs resulting from such exercise and existing at the time of such exercise.

(c)Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.

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SECTION 2.03.Requests for Borrowings.  To request a Borrowing, the Administrative Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of a Eurocurrency Borrowing, not later than 12:00 p.m., Local Time, three (3) Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 noon, Local Time, one Business Day before the date of the proposed Borrowing.  Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form annexed hereto as Exhibit B and signed by the applicable Borrower.  Each such telephonic and written Borrowing Request shall be irrevocable and shall specify the following information in compliance with Section 2.02:

(i)the aggregate amount of the requested Borrowing (expressed in Dollars);

(ii)the date of such Borrowing, which shall be a Business Day;

(iii)whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing; and

(iv)the location and number of the account to which funds are to be disbursed (which shall be the Segregated Account).

If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing.  Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing. Subject to the terms and conditions set forth herein, all Roll-Up Loans will be deemed made and fully funded as Eurocurrency Borrowings with an Interest Period of one month concurrently with the deemed making thereof on the date set forth in Section 2.01(e).

SECTION 2.04.Funding of Borrowings.

(a)Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, Local Time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders.  The Administrative Agent will make such Loans available to the applicable Borrower by promptly wiring the amounts so received, in like funds, to the Segregated Account.  Notwithstanding anything to the contrary, any Lender may make any of its Loans to be made by it hereunder by wire transfer of immediately available funds directly to the Segregated Account.

(b)The Borrowers may draw from the Segregated Account once per week (each, a “Weekly Draw”), subject to compliance with Sections 5.14 and 6.23, and use the proceeds of such draws solely in accordance with Sections 3.11, 5.09 and 6.24.  The Administrative Agent shall make any Weekly Draw Request received by it available to the Lenders promptly upon receipt thereof from the Borrower and shall, unless the Required Lenders have advised the Administrative Agent that the conditions for a Weekly Draw are not satisfied, countersign and deliver such Weekly Draw Request to the Escrow Agent pursuant to the Escrow Agreement two Business Days thereafter.

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SECTION 2.05.Interest Elections.

(a)Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request.  Thereafter, the Borrowers may elect to convert such Borrowing to a different Type, or to continue such Borrowing, all as provided in this Section.  The Borrowers may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.

(b)To make an election pursuant to this Section, the Administrative Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if the Borrowers were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election.  Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by the Administrative Borrower.

(c)Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:

(i)the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clause (iii) below shall be specified for each resulting Borrowing);

(ii)the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day; and

(iii)whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing.

(d)Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender to which such Interest Election Request relates of the details thereof and of such Lender’s portion of each resulting Borrowing.

(e)If the Administrative Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall continue as a Eurocurrency Borrowing.  Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the written request (including a request through electronic means) of the Required Lenders, so notifies the Borrowers, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Eurocurrency Borrowing and (ii) unless repaid, each Eurocurrency Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

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SECTION 2.06.Incremental Loans.

(a)The Borrower may on one or more occasions, by written notice to the Administrative Agent, request the making of Incremental Loans; provided that (i) the making of any Incremental Loans shall require the prior written consent of the Required Lenders and (ii) the aggregate amount of all Incremental Loans after the Effective Date shall not exceed $10,000,000.  Each such notice shall specify (A) the date on which the Borrower proposes the Incremental Loans to be made, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent and the Required Lenders) after the date on which such notice is delivered to the Administrative Agent, and (B) the amount of the Incremental Loans being requested (it being agreed that (x) any Lender approached to provide any Incremental Loan may elect or decline, in its sole discretion, to provide such Incremental Loan and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to the Administrative Agent and the Required Lenders).

(b)The terms and conditions of any Incremental Loans shall be, except as otherwise set forth herein or in the applicable Incremental Amendment, identical to those of the New Money Loans that are then outstanding, provided that the only conditions to funding of such Incremental Loans contained in the applicable Incremental Amendment shall be the conditions set forth in Section 4.02 (provided that for the purposes of determining whether or not any Borrowing Base Deficiency exists or would result from the making of any Incremental Loans, such Incremental Amendment shall amend the definition of Advance Rate to increase the percentage as necessary to permit such Incremental Loans), to the extent applicable at such time to such Incremental Loans.

(c)Any Incremental Loans shall be effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower, each Incremental Lender providing such Incremental Loans and the Administrative Agent.  Each Incremental Amendment may, with the consent of the Required Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Required Lenders, to give effect to the provisions of this Section.

(d)Upon the making of an Incremental Loan by any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents.  Upon the making of any Incremental Loans, such Incremental Loans shall be deemed to be and treated as New Money Loans for all purposes of this Agreement.

(e)Incremental Roll-Up Loans shall be deemed made pursuant to such terms as provided in the Final DIP Order.  After such deemed making, the terms and conditions of any Incremental Roll-Up Loans shall be identical to those of the Roll-Up Loans that are then outstanding.

SECTION 2.07.Evidence of Debt.

(a)Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrowers to such Lender resulting from each Loan

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made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(b)The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder and the Type thereof, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and (iii) any amount received by such Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(c)The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrowers to repay the Loans in accordance with the terms of this Agreement.

(d)Any Lender may request that Loans made by it be evidenced by a promissory note.  In such event, the Borrowers shall prepare, execute and deliver to such Lender a promissory note payable to such Lender or its registered assigns and in a form approved by the Required Lenders.  Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 10.04) be represented by one or more Notes.

SECTION 2.08.Repayment of Loans.

(a)Each Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender all outstanding Obligations (whether of principal, interest, fees or otherwise, and including with respect to Roll-Up Loans and Incremental Loans) on the Maturity Date.

(b)Prior to any repayment of any Borrowing hereunder, other than upon the Maturity Date, the Borrowers shall select the Borrowing or Borrowings to be repaid and shall notify the Administrative Agent by telephone (confirmed by telecopy) of such selection not later than noon Local Time, (i) in the case of an ABR Borrowing, one Business Day before the scheduled date of such repayment and (ii) in the case of a Eurocurrency Borrowing, three (3) Business Days before the scheduled date of such repayment.  Each repayment of a Borrowing shall be applied ratably to the Loans included in the repaid Borrowing.  All repayments of Borrowings shall be accompanied by all accrued and unpaid interest with respect to the amount so repaid.  Amounts so repaid may not be reborrowed.

SECTION 2.09.Optional and Mandatory Prepayment of Loans.

(a)The Borrowers shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, without premium or penalty (but subject to Section 2.10(d) and Section 2.14), in an aggregate principal amount of at least $1,000,000 and integral multiples of $1,000,000 in excess of that amount (or, if less, the aggregate amount then outstanding), subject to prior notice in accordance with Section 2.08(b).

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(b)Within three (3) Business Days of receipt by any Borrower or any Subsidiary of the Net Cash Proceeds of any Asset Disposition or any Casualty and Condemnation Award, in each case, that exceed $250,000 per transaction or series of transactions, the Borrowers shall apply an amount equal to 100% of the Net Cash Proceeds of such Asset Disposition or Casualty and Condemnation Award to prepay the Loans; provided that, in connection with an Asset Disposition that constitutes a sale of all or substantially all of the assets of the Borrowers pursuant to 363 of the Bankruptcy Code, the requirement to make any prepayments with the Net Cash Proceeds of any such Asset Disposition shall be subject to Section 4(c) of the SAPSA.

(c)Within three (3) Business Days of receipt by any Borrower or any Subsidiary of the Net Cash Proceeds from the issuance of Indebtedness (which Indebtedness is not expressly permitted to be incurred under Section 6.02) at any time, the Borrowers shall apply an amount equal to 100% of such Net Cash Proceeds to prepay the Loans.

(d)Within three (3) Business Days of receipt by any Borrower or any Subsidiary of any Extraordinary Receipts that exceed $250,000 in the aggregate (other than any tax refund received by any Borrower Party in respect of federal income taxes for calendar year 2018, but solely in the event that all proceeds thereof are deposited in an operating account of a Borrower that is subject to a Control Agreement), the Borrowers shall apply an amount equal to 100% of such Extraordinary Receipts to prepay the Loans.

(e)In the event that at any time any Borrowing Base Deficiency shall exist, within three (3) Business Days, the Borrowers shall prepay the Loans so that the Borrowing Base Deficiency is promptly cured.

SECTION 2.10.Fees.

(a)On the date of the Initial Borrowing, the Borrowers shall pay to the Administrative Agent, for the account of the Administrative Agent, an agency fee  (the “Administrative Agent Fee”) as separately agreed among the Borrowers and the Administrative Agent in the Administrative Agent Fee Letter.

(b)On the date of the Initial Borrowing, the Borrowers shall pay to the Administrative Agent a backstop commitment fee (the “Backstop Commitment Fee”) in an amount separately agreed by the Borrowers, which Backstop Commitment Fee shall be fully earned on the Effective Date. The Backstop Commitment Fee shall be paid in kind by adding the amount of such Backstop Commitment Fee to the outstanding principal balance of the Loans of each Lender on the Effective Date.  The payment in kind of the Backstop Commitment Fee shall not utilize any Commitments hereunder and shall not be deemed to be part of the Initial Borrowing.  The amount of the Backstop Commitment Fee allocated to each Lender is set forth on Schedule 1.01(A) hereto.

(c)On the date of the Initial Borrowing, the Borrowers shall pay to the Administrative Agent, for the account of and for allocation ratably to each Lender, an upfront fee (the “Initial Upfront Fee”) in an aggregate amount equal to $100,000, which Upfront Fee shall be fully earned on the Effective Date.  The Initial Upfront Fee shall be paid in kind by adding the amount of such Initial Upfront Fee to the outstanding principal balance of the Loans.  The payment in kind of the Initial Upfront Fee shall not utilize any Commitments hereunder and shall not be

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deemed to be part of the Initial Borrowing.  The amount of the Initial Upfront Fee allocated to each Lender is set forth on Schedule 1.01(A) hereto.

(d)On the Final DIP Order Entry Date, the Borrowers shall pay to the Administrative Agent, for the account of and for allocation ratably to each Lender, an upfront fee (the “Final Upfront Fee”) in an aggregate amount equal to $250,000, which Final Upfront Fee shall be fully earned on the Effective Date.  The Final Upfront Fee shall be paid in kind by adding the amount of such Final Upfront Fee to the outstanding principal balance of the Loans.  The payment in kind of the Final Upfront Fee shall not utilize any Commitments hereunder and shall not be deemed to be part of the Second Borrowing.

(e)On the Maturity Date, or on the date of a prepayment or repayment of any Loans in part or in full, voluntarily, mandatorily, or upon acceleration of the Loans for any reason, or on any date on which the Loans become due and payable for any reason, the Borrowers shall pay to the Administrative Agent, for the ratable benefit of the Lenders, an exit fee equal to 1.00% of the amount of the New Money Loans outstanding on the Maturity Date or that are so prepaid, repaid or accelerated or which become due and payable for any reason (the “Exit Fee”).

(f)All Fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, if and as appropriate, among the Lenders.  Once paid, none of the Fees shall be refundable under any circumstances.

SECTION 2.11.Interest.

(a)The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Margin.

(b)The Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted LIBO Rate plus the Applicable Margin.

(c)Notwithstanding the foregoing, if any principal of or interest on any Loan or any Fees or other amount payable by the Borrowers hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest in cash, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other overdue amount, 2.00% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section; provided that, should the occurrence of any particular Event of Default be subsequently waived, the rate established by this paragraph (c) shall apply only to that period prior to such waiver.

(d)Accrued interest on each Loan shall be payable in kind (with the interest accrued as of the applicable date being added to the outstanding principal balance of the Loans) in arrears (i) on each Interest Payment Date for such Loan and (ii) on the Maturity Date; provided that (A) interest accrued pursuant to paragraph (c) of this Section shall be payable in cash on demand (and, if no such demand is made, then such interest shall be payable in accordance with clauses (i) and (ii) above), (B) in the event of any repayment or prepayment of any Loan, all accrued interest (which is not reflected in the principal amount being repaid or prepaid at such

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time) on the principal amount repaid or prepaid shall be payable in cash on the date of such repayment or prepayment and (C) in the event of any conversion of any Eurocurrency Loan, accrued interest on such Loan shall be payable in-kind on the effective date of such conversion.  Any additional principal amounts of any Loan resulting from any in-kind payment of interest thereon shall be treated as principal for all purposes hereunder and shall bear interest after such in-kind payment.

(e)All interest hereunder shall be computed on the basis of a year of 360 days.  The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

SECTION 2.12.Alternate Rate of Interest.  If prior to the commencement of any Interest Period for a Eurocurrency Borrowing:

(a)the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or

(b)the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;

then the Administrative Agent shall give notice thereof to the Borrowers and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrowers and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective and such Borrowing shall be converted to or continued as on the last day of the Interest Period applicable thereto an ABR Borrowing and (ii) if any Borrowing Request requests a Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing or, if requested by the Borrowers, shall be made as a Borrowing bearing interest at such rate as the Required Lenders shall agree adequately reflects the costs to the Lenders of making the Loans comprising such Borrowing.

SECTION 2.13.Increased Costs.

(a)If any Change in Law shall:

(i)impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender;

(ii)subject any Lender to any Tax of any kind whatsoever with respect to any Loan Document, or any Loan made or to be made by such Lender, or the performance by such Lender of its obligations under any Loan Document (except for Indemnified Taxes covered by Section 2.15 and any Tax on net income or profits or overall gross receipts, including but not limited to any Excluded Tax payable by such Lender); or

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(iii)impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Loans made by such Lender;

and the result of any of the foregoing shall be to increase the cost to such Lender of making, continuing, converting to or maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan) or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise), then the Borrowers will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

(b)If any Lender determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by such Lender, then from time to time the Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

(c)A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as applicable, as specified in paragraph (a) or (b) of this Section shall be delivered to the Administrative Borrower and shall be conclusive absent manifest error.  The Borrowers shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.

(d)Promptly after any Lender has determined that it will make a request for increased compensation pursuant to this Section 2.13, such Lender shall notify the Administrative Borrower thereof.  Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation.

(e)Notwithstanding any other provision of this Section, no Lender shall demand compensation for any increased cost or reduction pursuant to this Section if it shall not at the time be the general policy and practice of such Lender to demand such compensation in similar circumstances under comparable provisions of other credit agreements.

SECTION 2.14.Break Funding Payments.  In the event of (a) the payment of any principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurocurrency Loan on the date specified in any notice delivered pursuant hereto or (d) the assignment of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Administrative Borrower pursuant to Section 2.17, then, in any such event, the Borrowers shall compensate each Lender for the loss, cost and expense attributable to such event.  In the case of a Eurocurrency Loan, such loss, cost or expense to any Lender shall be deemed to be the amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue a Eurocurrency Loan,

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for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in Dollars of a comparable amount and period from other banks in the eurodollar market.  A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Administrative Borrower and shall be conclusive absent manifest error.  The Borrowers shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.

SECTION 2.15.Taxes.

(a)Any and all payments by or on account of any obligation of any Borrower under any Loan Document shall be made free and clear of and without deduction for any Taxes; provided that, if a Borrower, the Administrative Agent or other applicable withholding agent shall be required to deduct any Tax from any such payment, then (i) if such Tax is an Indemnified Tax, the sum payable by the applicable Borrower shall be increased as necessary so that after all required deductions have been made (including deductions applicable to additional sums payable under this Section 2.15) any Agent or Lender, as applicable, receives an amount equal to the sum it would have received had no such deductions for Indemnified Taxes been made, (ii) the applicable withholding agent shall make such deductions and (iii) the applicable withholding agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.

(b)In addition, the Borrowers shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

(c)Each Borrower shall, jointly and severally, indemnify the Agents and each Lender within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes payable or paid by such Agent or Lender, as applicable, or required to be withheld or deducted with respect to any payment by or on account of any obligation of any Borrower under any Loan Document (including any Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.15) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Administrative Borrower by a Lender, or by the Administrative Agent on its own behalf, on behalf of another Agent or on behalf of a Lender, shall be conclusive absent manifest error.

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

(e)Each Lender shall, at such times as are reasonably requested by the Administrative Borrower or the Administrative Agent (or other applicable withholding agent), provide the Administrative Borrower and the Administrative Agent (or other applicable

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withholding agent) with any documentation prescribed by applicable law or reasonably requested by the Administrative Borrower or the Administrative Agent (or other applicable withholding agent) certifying as to any entitlement of such Lender to an exemption from, or reduction in, withholding Taxes with respect to any payments to be made to such Lender under any Loan Document.  Each such Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documentation required below in this Section 2.15(e)) obsolete, expired or inaccurate in any material respect, deliver promptly to the Borrower and the Administrative Agent (or other applicable withholding agent) updated or other appropriate documentation (including any new documentation reasonably requested by the Administrative Borrower or the Administrative Agent (or other  applicable withholding agent) certifying as to any entitlement of such Lender to an exemption from, or reduction in, withholding Taxes with respect to any payments to be made to such Lender under any Loan Document) or promptly notify the Administrative Borrower and the Administrative Agent (or other applicable withholding agent) in writing of its legal ineligibility to do so.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in clauses (i), (ii) and (iii) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

Without limiting the foregoing:

(i)Each U.S. Lender shall deliver to the Administrative Borrower and the Administrative Agent (or other applicable withholding agent) on or before the date on which it becomes a party to this Agreement two properly completed and duly signed copies of Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding.

(ii)Each Foreign Lender shall deliver to the Administrative Borrower and the Administrative Agent (or other applicable withholding agent) on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Administrative Borrower or the Administrative Agent (or other applicable withholding agent) whichever of the following is applicable:

(A)two properly completed and duly signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor forms) claiming eligibility for the benefits of an income tax treaty to which the United States is a party, and such other documentation as required under the Code,

(B)two properly completed and duly signed copies of Internal Revenue Service Form W-8ECI (or any successor forms),

(C)in the case of a Foreign Lender that is not a bank described in Section 881(c)(3)(A) of the Code and that is entitled to claim the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Code, (A) two properly completed and duly signed certificates substantially in the form of Exhibit F-1, Exhibit F-2, Exhibit F-3 or Exhibit F-4, as applicable, (any

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such certificate, a “United States Tax Compliance Certificate”) and (B) two properly completed and duly signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor forms), and/or

(D)to the extent a Foreign Lender is not the beneficial owner (for example, where the Foreign Lender is a partnership or a participating Lender), Internal Revenue Service Form W-8IMY (or any successor forms) of the Foreign Lender, accompanied by an Internal Revenue Service Form W-8ECI, W-8BEN or W-8BEN-E, United States Tax Compliance Certificate, Internal Revenue Service Form W-9, Internal Revenue Service Form W-8IMY or any other required information (or any successor forms) from each direct or indirect beneficial owner that would be required under this Section 2.15(e) if such beneficial owner were a Lender, as applicable (provided that, if the Foreign Lender is a partnership (and not a participating Lender) and one or more of its direct or indirect partners are claiming the portfolio interest exemption, the United States Tax Compliance Certificate may be provided by such Foreign Lender on behalf of such direct or indirect partners).

(iii)If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable requirements of those Code Sections (including those contained in Sections 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Administrative Borrower and the Administrative Agent (or other applicable withholding agent) at the time or times prescribed by applicable law and at such time or times reasonably requested by the applicable withholding agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Administrative Borrower or the Administrative Agent (or other applicable withholding agent) as may be necessary (as determined by the applicable withholding agent) (A) for the applicable withholding agent to comply with its obligations under FATCA and (B) to determine whether such Lender has or has not complied with such Lender’s obligations under FATCA and, if necessary, to determine the amount to deduct and withhold from such payment.

(iv)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Administrative Borrower and the Administrative Agent (or other applicable withholding agent) on or before the date on which it becomes a party to this Agreement, two properly completed and duly signed copies of any other form prescribed by applicable U.S. federal income tax laws (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding tax on any payments to such Lender under the Loan Documents.

Notwithstanding any other provision of this Section 2.15(e), a Lender shall not be required to deliver any form that such Lender is not legally eligible to deliver.

(f)If an Agent or a Lender determines, in good faith and in its sole discretion, that it has received a refund of any Indemnified Taxes as to which it has been indemnified by a Borrower or with respect to which such Borrower has paid additional amounts pursuant to this Section 2.15, it shall pay over such refund to such Borrower (but only to the extent of indemnity

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payments made, or additional amounts paid, by such Borrower under this Section 2.15 with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed with respect to such refund) as is determined by such Agent or Lender in good faith and in its sole discretion, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such Borrower, upon the request of such Agent or such Lender, agrees to repay as soon as reasonably practicable the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority.  This Section shall not be construed to require any Agent or any Lender to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrowers or any other person.  Notwithstanding anything to the contrary in this paragraph (f), in no event will the Administrative Agent or any Lender be required to pay amounts to any Borrower pursuant to this paragraph (f) to the extent such payment would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the Administrative Agent or such Lender would have been in if the Indemnified Taxes or Other Taxes giving rise to such refund had never been imposed.

(g)Each party’s obligations under this Section shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

SECTION 2.16.Payments Generally; Pro Rata Treatment; Sharing of Set-offs.

(a)Unless otherwise specified, the Borrowers shall make each payment required to be made by it hereunder (whether of principal, interest, fees or of amounts payable under Sections 2.13, 2.15 or 2.16, or otherwise) prior to 2:00 p.m., Local Time, on the date when due, in immediately available funds, without condition or deduction for any defense, recoupment, set-off or counterclaim.  Any amounts received after such time on any date may, in the discretion of the Required Lenders, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made to the Administrative Agent to the applicable account designated to the Administrative Borrower by the Administrative Agent, except payments pursuant to Sections 2.13, 2.15, 2.16 and 10.05 shall be made directly to the persons entitled thereto.  The Administrative Agent shall distribute any such payments received by it for the account of any other person to the appropriate recipient immediately following receipt thereof.  If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be the immediately preceding Business Day.  All payments hereunder of (i) principal or interest in respect of any Loan, or (ii) any other amount due hereunder or under another Loan Document shall be made in Dollars.  Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if such Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by such Administrative Agent to make such payment.

(b)If at any time insufficient funds are received by and available to the Administrative Agent from the Borrowers to pay fully all amounts of principal, interest and fees

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then due from the Borrowers hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due from the Borrowers hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due from the Borrowers hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.

(c)If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph (c) shall not be construed to apply to any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to the Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph (c) shall apply).  Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.

(d)Unless the Administrative Agent shall have received notice from the Administrative Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due.

(e)If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.04(b) or 2.16(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

SECTION 2.17.Mitigation Obligations.

(a)If any Lender requests compensation under Section 2.15, or if any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce

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amounts payable pursuant to Section 2.13 or 2.15, as applicable, in the future and (ii) would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in any material respect.  Each Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b)If any Lender requests compensation under Section 2.13, or if any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 10.04), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrowers shall have received the prior written consent of the Required Lenders, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it under the Loan Documents, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.13 or payments required to be made pursuant to Section 2.15, such assignment will result in a reduction in such compensation or payments.

SECTION 2.18.Illegality.  If any Lender reasonably determines that any change in law has made it unlawful, or that any Governmental Authority has asserted after the Effective Date that it is unlawful, for any Lender or its applicable lending office to make or maintain any Eurocurrency Loans, then, on notice thereof by such Lender to the Administrative Borrower through the Administrative Agent, any obligations of such Lender to make or continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency Borrowings shall be suspended until such Lender notifies the Administrative Agent and the Administrative Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrowers shall upon demand from such Lender (with a copy to the Administrative Agent), convert all Eurocurrency Borrowings of such Lender to ABR Borrowings, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans.  Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.

SECTION 2.19.Priority and Liens.  Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:

(a)Pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including,

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without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.

(b)Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof).  Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.

(c)The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:

(i)pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;

(ii)pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A)  the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and

(iii)pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions;

provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.

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(d)The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.

(e)All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.

SECTION 2.20.No Discharge; Survival of Claims.  Each of the Borrowers agrees that (i) unless satisfied in full, its Obligations shall not be discharged by the entry of a Final Order confirming a Chapter 11 Plan unless such Chapter 11 Plan provides for the termination of the Commitments and the payment in full in cash of the Obligations under the Loan Documents (other than contingent indemnification obligations as to which no claim has been asserted) on the Consummation Date of such Chapter 11 Plan (and each of the Borrowers, pursuant to Section 1141(d)(4) of the Bankruptcy Code, hereby waives any such discharge) and (ii) the Superpriority Claim granted to the Agents and the Lenders pursuant to the DIP Orders and the Liens granted to the Agents and the Lenders pursuant to the DIP Orders shall not be affected in any manner by the entry of a Final Order confirming a Chapter 11 Plan.

SECTION 2.21.Payment of Obligations.  Subject to the last paragraph of Section 8.01, upon the maturity (whether by acceleration or otherwise) of any of the Obligations of the Borrowers under this Agreement or any of the other Loan Documents, the Administrative Agent and the Lenders shall be entitled to immediate payment of such Obligations without further application to or order of the Bankruptcy Court.

SECTION 2.22.Joint and Several Liability.  All Loans, upon funding, shall be deemed to be jointly funded to and received by the Borrowers.  Each Borrower is jointly and severally liable under this Agreement for all Obligations, regardless of the manner or amount in which proceeds of Loans are used, allocated, shared or disbursed by or among the Borrowers themselves, or the manner in which an Agent and/or any Lender accounts for such Loans on its books and records.  Each Borrower shall be liable for all amounts due to the Administrative Agent and/or any Lender from the Borrowers under this Agreement, regardless of which Borrower actually receives Loans hereunder or the amount of such Loans received or the manner in which such Agent and/or such Lender accounts for such Loans on its books and records.  Each

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Borrower’s Obligations with respect to Loans made to it, and such Borrower’s Obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans made to the other Borrowers hereunder shall be separate and distinct obligations, but all such Obligations shall be primary obligations of such Borrower.  The Borrowers acknowledge and expressly agree with the Agents and each Lender that the joint and several liability of each Borrower is required solely as a condition to, and is given solely as inducement for and in consideration of, credit or accommodations extended or to be extended under the Loan Documents to any or all of the other Borrowers and is not required or given as a condition of Loans to such Borrower.  Each Borrower’s Obligations under this Agreement shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the release of any other Borrower or the validity or enforceability, avoidance, or subordination of the Obligations of any other Borrower or of any promissory note or other document evidencing all or any part of the Obligations of any other Borrower, (ii) the absence of any attempt to collect the Obligations from any other Borrower, or any other security therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance, or granting of any indulgence by an Agent and/or any Lender with respect to any provision of any instrument evidencing the Obligations of any other Borrower, or any part thereof, or any other agreement now or hereafter executed by any other Borrower and delivered to an Agent and/or any Lender, (iv) the failure by an Agent and/or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations of any other Borrower, (v) an Agent’s and/or any Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by any other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any portion of an Agent’s and/or any Lender’s claim(s) for the repayment of the Obligations of any other Borrower under Section 502 of the Bankruptcy Code, or (viii) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower.  With respect to any Borrower’s Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans made to any of the other Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which an Agent and/or any Lender now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to an Agent and/or any Lender to secure payment of the Obligations or any other liability of any Borrower to an Agent and/or any Lender.  Upon any Event of Default, the Agents may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations.  Each Borrower consents and agrees that the Agents shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations.

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ARTICLE III.

REPRESENTATIONS AND WARRANTIES

Each Borrower represents and warrants to each of the Lenders that:

SECTION 3.01.Organization; Powers.  Each Borrower and each of the  Subsidiaries (a) is a partnership, limited liability company or corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, formation or incorporation, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to own its assets and to carry on its business as now conducted, (c) is duly qualified and is licensed and, as applicable, in good standing, under the laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license, except where the failure so to qualify would not reasonably be expected to have a Material Adverse Effect, and (d) subject, in the case of each Borrower that is a Debtor, to the entry of the DIP Orders and subject to the terms thereof, has the power and authority to execute, deliver and perform its obligations under each of the Loan Documents and each other agreement or instrument directly related thereto to which it is a party, and consummate the Transactions contemplated thereby, including, in the case of each Borrower, to borrow and otherwise obtain credit hereunder.

SECTION 3.02.Authorization.  Subject, in the case of each Borrower that is a Debtor, to the entry of the DIP Orders and subject to the terms thereof, the execution, delivery and performance by each Borrower and each of the Subsidiaries of each of the Loan Documents to which it is a party and the borrowings hereunder (a) have been duly authorized by all corporate, stockholder, limited liability company or partnership or other organizational action required to be obtained by such Borrower and such Subsidiaries and (b) (i) do not violate (A) any provision of law, statute, rule or regulation (including, without limitation, any Mining Law), or contravene the terms of any Organizational Document of any Borrower or any Subsidiary, (B) any applicable order of any court or any rule, regulation or order of any Governmental Authority (including, without limitation, any Mining Permit) or (C) any indenture, lease (including, without limitation, any Mining Lease), agreement or other instrument to which any such Borrower or any such Subsidiary is a party or by which any of them or any of their respective assets are or may be bound, except in respect of the Existing Indenture Documents, (ii) are not in conflict with, and do not result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, give rise to a right of or result in any cancellation or acceleration of any right or obligation (including any payment) or to a loss of a material benefit under, any indenture, lease (including, without limitation, any Mining Lease), or other similar agreement or instrument, except in respect of the Existing Indenture Documents, or (iii) conflict with or result in any breach or contravention of, or the creation or imposition of any Lien (except for any Liens that arise under the Loan Documents) upon or with respect to any assets now owned or hereafter acquired by any Borrower or any such Subsidiary, or require any payment to be made under (A) any contractual obligation to which such Borrower or such Subsidiary is a party or affecting such Borrower or such Subsidiary or the properties of such Borrower, such Subsidiary or any of its or their Subsidiaries, except in respect of the Existing Indenture Documents or (B) any order, injunction, writ or decree of any governmental authority or any arbitral award to which such Borrower or such Subsidiary or its or their property is subject, in each case of this clause (b) where any such violation, conflict, breach, contravention, imposition of Lien, default, cancellation, acceleration or loss, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

SECTION 3.03.Enforceability.  Subject, in the case of each Borrower that is a Debtor, to the entry of the DIP Orders and subject to the terms thereof, this Agreement has been

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duly executed and delivered by each Borrower and constitutes, and each other Loan Document when executed and delivered by each Borrower that is party thereto will constitute, a legal, valid and binding obligation of such Borrower enforceable against each such Borrower in accordance with its terms, subject to (i) except in the case of each Borrower that is not a Debtor, the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.

SECTION 3.04.Governmental Approvals.  Subject  to the entry of the DIP Orders and subject to the terms thereof, no action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the Transactions except for (a) such consents, authorizations, filings or other actions that (i) have been made or obtained and are in full force and effect, (ii) notices required under the Mining Permits and Environmental Permits regarding a change in control solely to the extent required for the exercise of remedies in respect of the Liens created hereunder, which will be given to the applicable Governmental Authority on or prior to the date by which such notices are due or (iii) are listed on Schedule 3.04 hereto, (b) the filing of UCC financing statements, (c) filings with the United States Patent and Trademark Office and the United States Copyright Office and (d) such actions, consents and approvals the failure to be obtained or made which would not reasonably be expected to have a Material Adverse Effect.

SECTION 3.05.Financial Statements.  There has heretofore been furnished to the Lenders the consolidated balance sheets as of December 31, 2017 and 2018 (the “Closing Date Financial Statements”), and related consolidated statements of operations, stockholders’ equity and comprehensive income and cash flows of CPE and its consolidated subsidiaries for such fiscal years, audited by and accompanied by an opinion of PricewaterhouseCoopers LLP, independent public accountants, which financial statements (A) have been prepared in accordance with GAAP and (B) present fairly and accurately the consolidated financial condition and results of operations and cash flows of CPE and its consolidated subsidiaries as of the dates and for the periods to which they relate.

SECTION 3.06.No Material Adverse Effect.  Since December 31, 2018, there has been no event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any Material Adverse Effect.

SECTION 3.07.Title to Properties; Possession Under Leases.

(a)Each of the Borrowers and the Subsidiaries has good and marketable title to, or valid and subsisting leasehold interests in, or easements or other limited property interests in all of its property, including, without limitation, all personal property, all Real Property, and all Equity Interests, subject solely to Permitted Real Estate Encumbrances and except where the failure to have such title or interest would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  The Borrowers and the Subsidiaries have maintained or caused to be maintained, in all respects and in accordance with normal mining industry or prudent oilfield practice, all of the machinery, equipment, vehicles, preparation plants or other Coal processing facilities, loadout and other transportation facilities and other tangible personal

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property now owned or leased by the Borrowers and the Subsidiaries that is necessary to conduct their business as it is now conducted at such properties, except where the failure to maintain would not reasonably be expected to have a Material Adverse Effect.  As of the Effective Date, Part 1 of Schedule 3.07(a) hereto sets forth a true, complete, accurate and correct list of all Material Leased Real Property and Part 2 of Schedule 3.07(a) hereto sets forth a true, complete, accurate and correct list of all Material Owned Real Property. There has been no occurrence of any fire, explosion, implosion, collapse, flooding, accident, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that, in each case affecting any Borrower or any of its Subsidiaries, that either individually or in the aggregate, directly or indirectly resulted in or could reasonably be expected to result in, a Material Adverse Effect.

(b)Other than as a result of the filing of the Cases, each of the Borrowers and the Subsidiaries has complied with all obligations under all leases (including, without limitation, Mining Leases and Real Property Leases) to which it is a party, except where the failure to comply would not have a Material Adverse Effect, and all such leases are in full force and effect, except (i) leases in respect of which the failure to be in full force and effect would not reasonably be expected to have a Material Adverse Effect and (ii) that are less than fully marketable because the consent of the lessor to a future assignment has not been obtained.  Each of the Borrowers and the Subsidiaries enjoys peaceful and undisturbed possession under all such leases, in each case other than leases in respect of which the failure to enjoy peaceful and undisturbed possession would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(c)As of the Effective Date, except as set forth on Schedule 3.07(c) to this Agreement, none of the Borrowers or any of the Subsidiaries has received written or, to the knowledge of any Borrower and/or any Subsidiary, other notice of claims that any Borrower or any Subsidiary has mined any Coal that it did not have the right to mine or mined any Coal or produced any oil, natural gas or other hydrocarbons in such a manner as to give rise to any claims for loss, waste or trespass, and, to the knowledge of the Borrowers and the Subsidiaries, no facts exist upon which such a claim could be based, in each case, other than claims that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  To the knowledge of the Borrowers, all Material Real Property that is being mined or operated is in a physical condition that would permit mining or oil and natural gas production operations as presently conducted in all material respects.

(d)(i) Each of the Borrowers and the Subsidiaries owns or possesses the valid right to use all Intellectual Property that is used or held for use in or is otherwise necessary for the present conduct of its business, without any known conflict with the rights of others, except where such conflicts would not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate, or except as set forth on Schedule 3.07(d)(i) to this Agreement, (ii) neither any Borrower nor any of its or their Subsidiaries, nor any of their respective businesses, is to their best knowledge interfering with, infringing upon, misappropriating or otherwise violating, in each case in any material respect, Intellectual Property of any Person, (iii) no claim or litigation regarding any such interference, infringement, misappropriation or violation, or challenging the ownership, validity, enforceability or use of any Intellectual Property of any of the Borrowers or their Subsidiaries, is pending or, to the best knowledge of the Borrowers and the Subsidiaries, threatened, and (iv) to the best knowledge of the Borrowers and the Subsidiaries, no Person is

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interfering with, infringing upon, misappropriating or otherwise violating, in each case in any material respect, Intellectual Property owned or possessed by any of the Borrowers or their Subsidiaries.

(e)None of any Borrower or any of its or their Subsidiaries has received any written or, to the knowledge of any Borrower, other notice of any pending or contemplated condemnation proceeding affecting any of its Real Property or any sale or disposition thereof in lieu of condemnation that remains unresolved, except where such condemnation proceeding would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, except as set forth on Schedule 3.07(e) to this Agreement or the Cases.

(f)None of the Borrowers and their Subsidiaries is obligated under any right of first refusal, preferential right to purchase, option or other contractual right to sell, assign or otherwise dispose of any Real Property or any interest therein, other than customary buy-back provisions following the termination of mining operations, satisfaction of reclamation obligations and release of applicable Mining Permits with respect to Real Property, except where such right of first refusal, preferential right to purchase, option or other contractual right would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or except as set forth on Schedule 3.07(f) to this Agreement.

(g)Schedule 3.07(g) to this Agreement sets forth the true, complete, accurate and correct name and jurisdiction of incorporation, formation or organization of each Borrower and each Subsidiary and the percentage of each class of Equity Interests owned by any Borrower or by any such Subsidiary, indicating the ownership thereof.  Other than as set forth in Schedule 3.07(g), CPE does not have any direct or indirect Subsidiaries.

(h)There are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options and other rights to receive Equity Interests of a Borrower granted to employees or directors and directors’ qualifying shares) of any nature relating to any Equity Interests of any Borrower or any of the Subsidiaries, except where such subscriptions, options, warrants, calls, rights or other agreements or commitments would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or except as set forth on Schedule 3.07(h) to this Agreement.

(i)All of the outstanding Equity Interests in each Borrower and each Subsidiary have been validly issued, are fully paid and nonassessable, and (other than the Equity Interests in CPE) are owned free and clear of all Liens (except those Liens permitted under Section 6.03).

(j)With respect to each Real Property, there are no rights or claims of parties in possession not shown by the public records, encroachments, overlaps, boundary line disputes or other matters which would be disclosed by an accurate survey or inspection of the premises except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

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SECTION 3.08.Litigation; Compliance with Laws.

(a)The Borrowers and the Subsidiaries are in compliance in all material respects with applicable Environmental Laws, Environmental Permits (as defined below) and Mining Permits.  Except as set forth on Schedule 3.08(a) to this Agreement, (x) except for the Cases, there are no actions, suits, investigations or proceedings, including any claims under Environmental Law, at law or in equity or by or on behalf of any Governmental Authority or any other Person or in arbitration now pending against, or, to the knowledge of any Borrower, threatened in writing against or affecting, any Borrower or any of the other Subsidiaries or any business, property (including any Real Property) or rights of any such person (i) that involve or purport to affect or pertain to any Loan Document or the Transactions; (ii) which would reasonably be expected, individually or in the aggregate, to materially adversely affect the Transactions; or (iii) as to which there is a reasonable likelihood of adverse determinations that would reasonably be expected to result in a Material Adverse Effect; (y) none of the Borrowers or any Subsidiary has been notified in writing, or, to the knowledge of any Borrower and the Subsidiaries, otherwise notified, by the Federal Office of Surface Mining or the agency of any state administering the Surface Mining Control and Reclamation Act of 1977, as amended, or any comparable state statute that it is: (i) ineligible to receive additional surface mining permits or (ii) under investigation to determine whether their eligibility to receive any Mining Permit should be revoked, i.e., “permit blocked”, in each case of this clause (y), except as would not reasonably be expected to have a Material Adverse Effect; and (z) to the knowledge of any Borrower, no facts exist that presently or upon the giving of notice or the lapse of time or otherwise would render any Borrower or any Subsidiary ineligible to receive surface mining permits or maintain or comply in all material respects with any Mining Permit.

(b)Except as set forth in Schedule 3.08(b) to this Agreement, none of the Borrowers, the Subsidiaries or their respective assets is in violation of (nor will the continued operation of their material assets as currently conducted violate) any currently applicable law, rule or regulation (including any zoning, building, Environmental Law, ordinance, code or approval, Mining Law, Mining Permit, Mining Lease or any building permit) or any restriction of record or agreement affecting any Real Property, or is in default with respect to any order, judgment, writ, injunction or decree of any Governmental Authority, where such violation or default would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(c)The Borrowers and the Subsidiaries have, in the amounts and forms in compliance in all material respects with applicable Environmental Laws and orders, Mining Laws, Mining Permits or Mining Leases, obtained all performance bonds and surety bonds, or otherwise provided any financial assurance for the Borrowers’ mining and reclamation obligations or otherwise in the ordinary conduct of their business and operations.  Schedule 3.08(c) sets forth a true, complete, accurate and correct list of all such bonds.

SECTION 3.09.Federal Reserve Regulations.

(a)None of the Borrowers or the Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying Margin Stock.

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(b)No part of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or Regulation X.

SECTION 3.10.Investment Company Act.  None of the Borrowers or any Subsidiary is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.

SECTION 3.11.Use of Proceeds.  The Borrowers will use the proceeds from Borrowings of Loans only for the following purposes in each case, in accordance with the Approved Budget (as adjusted for any variance not constituting an Unpermitted Variance): (i) general corporate and working capital purposes; (ii) costs of the administration of the Cases, (iii) payment of all reasonable and documented accrued and unpaid transaction costs, fees and expenses with respect to the Facility, including fees and expenses of professional advisors to the Lenders and the Agents and (iv) in the case of Roll-Up Loans, to refinance and discharge Secured Notes Debt (as defined in the Interim DIP Order and, when entered, the Final DIP Order) as set forth in paragraph 6 of the Interim DIP Order (or any corresponding paragraph of the Final DIP Order); provided, that, with the prior written consent of the Required Lenders (which consent shall not be unreasonably withheld), proceeds of the Loans may be used to satisfy the Borrowers’ obligations in accordance with, and to the extent and in such amounts required under, the A/R Securitization Facility to the extent incurred in the ordinary course of business and for a valid business purpose.

SECTION 3.12.Tax Returns.  Except as set forth on Schedule 3.12 to this Agreement:

(a)Each Borrower and each of its or their Subsidiaries (i) has timely filed or caused to be timely filed all U.S. federal and other material state,  local and non-U.S. Tax returns required to have been filed by it and each such Tax return is true and correct in all material respects, (ii) has timely paid or caused to be timely paid all material Taxes due and owing by it (whether or not shown on any Tax return), (except (x) Taxes or assessments that are being contested in good faith by appropriate proceedings in accordance with Section 5.03 and for which any Borrower or any of its or their Subsidiaries (as the case may be) has set aside on its books adequate reserves in accordance with GAAP and (y) Taxes that need not be paid pursuant to an order of the Bankruptcy Court or pursuant to the Bankruptcy Code) and (iii) has materially complied with all of its obligations in its capacity as withholding agent under applicable law;

(b)Each Borrower and each of its or their Subsidiaries has paid in full or made adequate provision (in accordance with GAAP) for the payment of all Taxes not yet due, which Taxes, if not paid or adequately provided for, would, individually or in the aggregate,  reasonably be  expected to be material; and

(c)With respect to each Borrower and each of its or their Subsidiaries, (i) there are no claims being asserted in writing with respect to any material Taxes, (ii) no presently effective waivers or extensions of statutes of limitation with respect to Taxes have been given or requested and (iii) no Tax returns are being examined by, and no written notification of intention

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to examine has been received from, the Internal Revenue Service or any other taxing authority that is reasonably expected to result in a material Tax liability.

SECTION 3.13.No Material Misstatements.

(a)All written information (other than the Projections, estimates and information of a general economic nature) (the “Information”) concerning any Borrower, any Subsidiary, the Transactions and any other transactions contemplated hereby or by any other Loan Document prepared by or on behalf of the foregoing or their representatives (excluding any reserve reports) and made available to any Lenders or the Administrative Agent in connection with the Transactions or the other transactions contemplated hereby or by any other Loan Document, when taken as a whole, were true and correct in all material respects, as of the date such Information was furnished to the Lenders and as of the Effective Date, after giving effect to any supplements to such Information through the Effective Date, did not contain any untrue statement of a material fact as of any such date or omit to state a material fact necessary in order to make the statements contained therein, when taken as a whole, not materially misleading in light of the circumstances under which such statements were made.

(b)The Projections and estimates and information of a general economic nature prepared by or on behalf of any Borrower or any of its representatives and that have been made available to any Lenders or the Administrative Agent in connection with the Transactions or the other transactions contemplated hereby (i) have been prepared in good faith based upon assumptions believed by the Borrowers to be reasonable as of the date thereof, as of the date such Projections and estimates were furnished to the Lenders hereunder and as of the Effective Date, and (ii) as of the Effective Date, have not been modified in any material respect by any Borrower.

SECTION 3.14.Employee Benefit Plans.  Each Borrower, each Subsidiary and each Affiliate are in compliance with the applicable provisions of ERISA and the provisions of the Code relating to Plans and the regulations and published interpretations thereunder, except for such noncompliance that would not reasonably be expected to have a Material Adverse Effect.  Each Plan (and each related trust, if any) which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service (“IRS”) to the effect that it meets the requirements of Section 401(a) and 501(a) of the Code covering all applicable tax law changes or is comprised of a master or prototype plan that has received a favorable opinion letter from the IRS, and, nothing has occurred since the date of such determination that would materially and adversely affect such determination.  There exists no Unfunded Pension Liability with respect to Plans in the aggregate (taking into account only Plans with positive Unfunded Pension Liability) in excess of $1,000,000.  No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other ERISA Events which have occurred or for which liability is reasonably expected to occur, would reasonably be expected to result in a Material Adverse Effect.  If each Borrower, each Subsidiary and each ERISA Affiliate were to withdraw in a complete withdrawal as of the date this assurance is given or deemed given, the aggregate withdrawal liability that would be incurred would not be in excess of $1,000,000.

SECTION 3.15.Environmental Matters.  Except as disclosed on Schedule 3.15 to this Agreement and except as to matters that would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect (i) no written notice, request for information,

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demand,  order, complaint or penalty has been received by any Borrower or any of the Subsidiaries, and there are no judicial, administrative or other actions, suits or proceedings, consent orders or consent or settlement agreements pending or threatened in writing against any Borrower or any of the Subsidiaries which allege a violation of or liability under any Environmental Laws or Environmental Permits, in each case relating to any Borrower or any of the Subsidiaries or their Real Property, (ii) each Borrower and each Subsidiary has obtained or in a timely manner applied for all Permits and licenses necessary for ownership of its assets and for its operations as currently conducted to comply with all applicable Environmental Laws (“Environmental Permits”) and is in compliance with the terms of such Environmental Permits , which are in full force and effect, and with all other applicable Environmental Laws, (iii) each Borrower and each Subsidiary has made available to the Administrative Agent prior to the Effective Date the most recent environmental assessment and environmental audit, if any, then available with respect to the operations and the Real Property of each Borrower and each Subsidiary, (iv) (a) to the knowledge of the Borrowers and the Subsidiaries, no Hazardous Material is located or (b) has been Released by any of the Borrowers or Subsidiaries or, to the knowledge of the Borrowers and the Subsidiaries, by any other Person at, on, under or is emanating from any property or facility, including the Real Property, currently owned, operated or leased by any Borrower or any of the Subsidiaries, nor has any Person been exposed to any such Hazardous Materials, that would reasonably be likely to give rise to any cost, liability or obligation of any Borrower or any of the Subsidiaries under any Environmental Laws or any Environmental Claim, and no Hazardous Material has been handled, generated, owned or controlled by any Borrower or any of the Subsidiaries and disposed of, or transported to or Released at any location in a manner or resulting in a condition that would reasonably be likely to give rise to any cost, liability or obligation of any Borrower or any of the Subsidiaries under any Environmental Laws, (v) there are no written agreements in effect as of the Effective Date pursuant to which any Borrower or any of the Subsidiaries has expressly assumed or undertaken responsibility for any liability or obligation of any other Person arising under or relating to Environmental Laws, which in any such case has not been made available to the Administrative Agent prior to the Effective Date, (vi) there are no landfills, disposal areas, or surface impoundments (including slurry impoundments) located at, on, in or under the assets or Real Property of any Borrower or any Subsidiary for which any Borrower or any Subsidiary does not hold and is not in compliance in all material respects with a valid Environmental Permit or Permit pursuant to Mining Laws , and which are closed or to be closed and reclaimed pursuant to Mining Laws and Environmental Laws, and (vii) to the knowledge of the Borrowers and the Subsidiaries, except as listed on Schedule 3.15(vii) to this Agreement there are not currently and there have not been any underground storage tanks “owned,” or “operated” (as defined by applicable Environmental Law) by any Borrower or any Subsidiary or present or located on the Borrower’s or any Subsidiary’s Real Property.

SECTION 3.16.Security Documents.  Subject to and upon the entry of the DIP Orders, the DIP Orders and the Security Documents, together with such filings and other actions required to be taken hereby or by the applicable Security Documents, when executed and delivered (and at all times thereafter) are effective to create in favor of the Collateral Agent (for the benefit of the Secured Parties) a valid, perfected, enforceable and unavoidable security interest in and lien on the Collateral in the priorities set forth in the applicable DIP Order.  When UCC financing statements in appropriate form are filed in the offices specified in the Security Agreement, the Liens created by the Security Agreement in favor of the Collateral Agent (for the benefit of the

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Secured Parties) will constitute fully perfected Liens on, and security interests in, all right, title and interest of the Borrowers in such Collateral to the extent perfection can be obtained by filing UCC financing statements.

SECTION 3.17.[Reserved].

SECTION 3.18.Material Contracts.  As of the Effective Date, each Borrower has heretofore delivered to the Administrative Agent and the Lenders true, correct and complete copies of all Material Contracts to which it is a party, or to which it or any of its properties is subject, which such Material Contracts are listed on Schedule 3.18 hereto.  As of the Effective Date, all Material Contracts are in full force and effect and no material defaults (nor, to the knowledge of any Borrower, notice of any material default) currently exist thereunder.

SECTION 3.19.Labor Matters.  Except as set forth on Schedule 3.19 to this Agreement or as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (a) there are no strikes pending or threatened against any Borrower or any of the Subsidiaries; (b) the hours worked and payments made to employees of the Borrowers and the Subsidiaries have not been in violation in any respect of the Fair Labor Standards Act or any other applicable law dealing with such matters; (c) all payments due from any Borrower or any of the Subsidiaries or for which any claim may be made against any Borrower or any of the Subsidiaries, on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of such Borrower or such Subsidiary to the extent required by GAAP; and (d) consummation of the Transactions will not give rise to a right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any Borrower or any of the Subsidiaries (or any predecessor) is a party or by which any Borrower or any of the Subsidiaries (or any predecessor) is bound, other than collective bargaining agreements that, individually or in the aggregate, are not material to the Borrowers and the Subsidiaries, taken as a whole.

SECTION 3.20.Insurance.  Schedule 3.20 to this Agreement sets forth a true, complete, accurate and correct description of all insurance maintained by or on behalf of the Borrowers or the Subsidiaries as of the Effective Date.  As of such date, such insurance is in full force and effect.  The insurance maintained by or on behalf of the Borrowers and the Subsidiaries is adequate.

SECTION 3.21.Anti-Terrorism Law.

(a)No Borrower and, to the knowledge of each Borrower, no officers, directors, employees, brokers, agent or Affiliate of such Borrower is in violation of any laws relating to terrorism or money laundering (“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive Order”), and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.

(b)No Borrower, Subsidiary, or, to the knowledge of any Borrower, any director or officer, employee, broker, agent or Affiliate of such Borrower acting or benefiting in

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any direct capacity in connection with the Loans is, or is owned or controlled by one or more persons that are, any of the following:

(i)a person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;

(ii)a person owned or controlled by, or acting for or on behalf of, any person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;

(iii)a person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;

(iv)a person that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) at its official website or any replacement website or other replacement official publication of such list; or

(v)a person that is (i) currently the subject or target of any Sanctions or (ii) located, has a place of business, or is organized or resident in a Designated Jurisdiction.

(c)No Borrower, or, to the knowledge of any Borrower, any director or officer, employee, agent or Affiliate thereof, when acting on behalf of such Borrower, is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Borrowers, its and their Subsidiaries and, to the knowledge of each Borrower, its Affiliates have conducted their businesses in compliance with the FCPA in all material respects and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

(d)Each Borrower has instituted and maintained policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, compliance with all applicable Sanctions in all material respects.

SECTION 3.22.Initial Budget.  The Borrowers have prepared and delivered to the Administrative Agent and the Lenders an initial budget (attached hereto as Exhibit G (it being understood and agreed that such initial budget is acceptable to the Administrative Agent and the Lenders), which reflects the Borrowers’ forecasted receipts and disbursements on a consolidated basis for the 13-weeks commencing on the Effective Date (such budget, the “Initial Budget”).

SECTION 3.23.DIP Orders.  Each of the Interim DIP Order (to the extent necessary, with respect to the period prior to the entry of the Final DIP Order) and the Final DIP Order (from after the date the Final DIP Order is entered) is in full force and effect and has not

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been vacated, reversed or rescinded or, without the prior written consent of the Required Lenders, in their sole discretion, amended or modified and no appeal of such order has been timely filed or, if timely filed, no stay pending such appeal is currently effective.

SECTION 3.24.Bankruptcy Matters.

(a)The Cases were commenced on the Petition Date, in accordance with applicable requirements of law and proper notice thereof under the circumstances, and proper notice of (x) the motion seeking approval of the Loan Documents and entry of the DIP Orders, as applicable and (y) the hearings for the approval of the Interim DIP Order have been held by the Bankruptcy Court.

(b)After the entry of the DIP Orders, the Obligations will constitute DIP Superpriority Claims (as defined in the DIP Orders) having the priorities set forth in the Interim DIP Order and the Final DIP Order, as applicable.

(c)After the entry of the DIP Orders, as applicable, and pursuant to and to the extent provided in the DIP Orders, as applicable, the Obligations will be secured by valid, binding, enforceable, non-avoidable, and automatically and fully and properly perfected Liens on, and security interests in, the Collateral, in each case, having the priorities set forth in the Interim DIP Order and the Final DIP Order, as applicable.

(d)After the entry of each DIP Order, such DIP Order is in full force and effect, is not subject to appeal, leave to appeal or reconsideration process (as applicable) and has not been reversed, stayed, modified or amended in any manner without the Required Lenders’ consent.

ARTICLE IV.

CONDITIONS OF EFFECTIVENESS AND LENDING

SECTION 4.01.Conditions Precedent to Effectiveness.  The effectiveness of this Agreement and the obligations of each Lender to make Loans hereunder are, in each case, subject to the satisfaction of the following conditions precedent:

(a)The Administrative Agent and the Lenders shall have received executed counterparts of this Agreement from each party hereto.

(b)The Administrative Agent and the Lenders shall have received the following, each dated as of the Effective Date (unless otherwise specified), in form and substance satisfactory to the Required Lenders, and duly executed and delivered by each party thereto (as applicable):

(i)Notes payable to the Lenders (and their registered assigns) to the extent requested by any Lender on or prior to the Effective Date pursuant to Section 2.07(d);

(ii)a certificate of the secretary or assistant secretary of each Borrower, dated the Effective Date, certifying that attached thereto are (1) true and complete copies of the Organizational Documents of each Borrower certified as of a recent date by the appropriate

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governmental official, (2) signature and incumbency certificates of the officers of such Person executing the Loan Documents to which it is a party, (3) true and complete resolutions of the Board of Directors of each Borrower approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the Effective Date, and authorizing and approving the borrowings hereunder, and certified as of the Effective Date by its secretary or an assistant secretary that such resolutions are in full force and effect without modification or amendment, (4) a good standing certificate from the applicable Governmental Authority of each Borrowers’ jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Effective Date, and (5) such other documents and certificates as the Administrative Agent, the Lenders or its or their counsel may reasonably request relating to the organization, existence and good standing of each Borrower, and the authorization of the Transactions;

(iii)the Security Agreement;

(iv)The Escrow Agreement with respect to the Segregated Account;

(v)a certificate from a Responsible Officer of the Borrowers, addressed to the Administrative Agent and each Lender, as to the matters set forth in Sections 4.01(d), (e), (f), (g), (h), (k) and (l);

(vi)the Initial Budget;

(vii)an Inventory Appraisal and an M&E Appraisal;

(viii)evidence of all insurance required to be maintained pursuant to Section 5.02;

(ix)results of a recent lien search in each relevant jurisdiction with respect to the Borrowers, revealing no liens on any of the assets of the Borrowers or their Subsidiaries except for Liens permitted under Section 6.03; and

(x)the Closing Date Financial Statements.

(c)All UCC financing statements to be filed in order to perfect and protect the Liens and security interests created or purported to be created under the Interim DIP Order and the Security Documents covering the Collateral described therein shall have been properly filed (or provided to the Collateral Agent to be filed) in each jurisdiction required, in each case, in form and substance satisfactory to, and to the extent requested by, the Agents and the Required Lenders.

(d)The Administrative Agent and the Required Lenders shall be reasonably satisfied with the form and substance of the “first day orders” sought by the Borrowers and entered on (or prior to) the Effective Date.

(e)The Borrowers shall have filed a motion seeking approval of the Facility by no later than the Petition Date.

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(f)The Interim DIP Order Entry Date shall have occurred not later than three (3) Business Days following the Petition Date.

(g)All “first day orders” and all related pleadings intended to be entered on or prior to the Interim DIP Order Entry Date shall have been entered by the Bankruptcy Court and shall be reasonably satisfactory in form and substance to the Administrative Agent and the Required Lenders.

(h)No trustee under Chapter 7 or Chapter 11 of the Bankruptcy Code or examiner with enlarged powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code shall have been appointed in any of the Cases.

(i)The Borrowers shall have paid all invoiced fees and expenses of the Agents and the Lenders accrued and payable on or prior to the Effective Date, including the accrued fees and expenses of counsel to each of the Agents and the Lenders.

(j)The Administrative Agent and each Lender shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S. PATRIOT Act, as reasonably requested by the Administrative Agent and each Lender.

(k)No Default or Event of Default shall have occurred and be continuing immediately before and after giving effect to the Transactions, any incurrence of Indebtedness hereunder and the use of the proceeds hereof on a pro forma basis.

(l)The representations and warranties of each Borrower contained in each Loan Document to which it is a party shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or if applicable, in all respects) as of such earlier date).

(m)The SAPSA shall be in full force and effect.

Each Lender, by delivering its signature page to this Agreement, and funding its Loans on or about the Effective Date, shall be deemed to have acknowledged receipt of, and consented to and approved or accepted or to be satisfied with, each Loan Document and each other document required to be approved by, acceptable or satisfactory to any Agent, the Required Lenders or any other Lenders, as applicable, on or about the Effective Date.

SECTION 4.02.Conditions to Borrowings.  In addition to the conditions precedent set forth in Section 4.01, the obligations of each Lender to fund any Borrowing hereunder are subject to the satisfaction of the following conditions precedent:

(a)The Administrative Agent shall have received a Borrowing Request as required by Section 2.03.

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(b)With respect to the Second Borrowing, to the extent the Second Borrowing occurs more than twenty-eight (28) calendar days after the Effective Date, the Lenders shall have received an Updated Budget, dated as of the Final DIP Order Entry Date, which Updated Budget shall be an Approved Budget.

(c)With respect to any Third Borrowing, the Specified Tax Condition has been satisfied.

(d)The representations and warranties of each Borrower contained in each Loan Document to which it is a party shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the date of such Borrowing, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or if applicable, in all respects) as of such earlier date).

(e)Immediately prior to and immediately after giving effect to such Borrowing and the use of proceeds thereof, no Event of Default or Default shall have occurred and be continuing.

(f)The making of such Loan shall not violate any requirement of law and shall not be enjoined, temporarily, preliminarily or permanently.

(g)The amount of each Borrowing shall be in compliance with Section 2.01(b) or 2.01(c), as applicable.

(h)With respect to the Second Borrowing and the Third Borrowing, the Administrative Agent and the Lenders shall have received a Control Agreement with respect to each deposit account, securities account and commodities account of each Borrower (excluding the Excluded Accounts), in each case, duly executed and delivered by each party thereto.

(i)No Borrowing Base Deficiency shall exist immediately after giving effect to such Borrowing and to the application of the proceeds therefrom.

(j)The Administrative Agent and the Lenders shall have received a certificate of a Financial Officer of the Borrowers, dated as of the date of such Borrowing, confirming compliance with the conditions set forth in Sections 4.02(b), (d), (e), (f) and (i), in form and substance satisfactory to the Required Lenders.

(k)With respect to the Second Borrowing and the Third Borrowing, entry of an order authorizing the Debtors to assume the SAPSA and approving the settlement contained in Section 9 thereof pursuant to Bankruptcy Rule 9019.

(l)The Borrowers shall have paid all invoiced fees and expenses of the Agents and the Lenders accrued and payable on or prior to the date of such Borrowing, including the accrued fees and expenses of counsel to each of the Agents and the Lenders.

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Each Borrowing shall be deemed to constitute a representation and warranty by each Borrower on the date of such Borrowing as to the applicable matters specified in Sections 4.02(b), (d), (e), (f) and (i).

ARTICLE V.

AFFIRMATIVE COVENANTS

Each Borrower covenants and agrees with each Lender that, so long as this Agreement shall remain in effect and until the commitments have been terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document shall have been paid in full and discharged, unless the Required Lenders shall otherwise consent in writing, each Borrower will and will cause each of the Subsidiaries to:

SECTION 5.01.Existence; Businesses and Properties.

(a)Do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and qualifications.

(b)Do or cause to be done all things reasonably necessary to (i) obtain, preserve, renew, extend and keep in full force and effect the permits, franchises, authorizations, Intellectual Property and rights or licenses with respect thereto necessary to the normal conduct of its business, (ii) except as otherwise permitted by the Bankruptcy Code, comply in all respects with all applicable laws, rules, regulations (including any zoning, mining, building, ordinance, code or approval or any building permits or any restrictions of record or agreements affecting the Real Property) and judgments, writs, injunctions, decrees and orders of any Governmental Authority, whether now in effect or hereafter enacted except in each case where failure to do so would not reasonably be expected to have a Material Adverse Effect, (iii) at all times maintain and preserve in all material respects all machinery and equipment (excluding machinery and equipment that is surplus, obsolete or not used or usable in the business of the Borrowers and which is not included in the calculation of the Borrowing Base) in the ordinary course of business, and keep such property in good repair, working order and condition (ordinary wear and tear and damage by fire or other casualty or taking by condemnation excepted) in all material respects and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto necessary in order that the business carried on in connection therewith, if any, may be properly conducted at all times in all material respects, (iv) at all times maintain and preserve in all material respects all other property necessary to the normal conduct of its business and keep such property in good repair, working order and condition (ordinary wear and tear and damage by fire or other casualty or taking by condemnation excepted) and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto necessary in order that the business carried on in connection therewith, if any, may be properly conducted at all times in all material respects and (v) in the case of leases of any Borrower, maintain such leases in full force and effect (x) subject to an applicable order of the Bankruptcy Court with respect to such leases or except as otherwise permitted by the Bankruptcy Code, (y) excluding such leases rejected under Section 365 of the Bankruptcy Code or as would not reasonably be expected to have a Material Adverse Effect and

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(z) excluding such leases where failure to do so is not disadvantageous in any material respect to such Person or to the Administrative Agent and the Lenders.

SECTION 5.02.Insurance.

(a)Keep its properties insured at all times by financially sound and reputable insurers in such amounts as shall be customary for similar businesses and maintain such other reasonable insurance (including, to the extent consistent with past practices, industry practices and self-insurance), of such types, to such extent and against such risks, as is customary with companies in the same or similar businesses and maintain such other insurance as may be required by law or any other Loan Document.

(b)Subject to Section 5.21, keep its property insured in favor of the Collateral Agent as lender’s loss payee and/or additional insured (subject to the exceptions in the immediately preceding paragraph), as applicable, and all policies or certificates (or certified copies thereof) with respect to such insurance (and any other insurance maintained by the Borrowers and/or such Subsidiaries) (i) shall be endorsed to the Collateral Agent’s reasonable satisfaction for the benefit of the Collateral Agent (including, without limitation, by naming the Collateral Agent as lender’s loss payee, mortgagee and/or additional insured, as applicable) and (ii) shall state that such insurance policies shall not be canceled without at least thirty (30) days’ prior written notice (or if such cancellation is by reason of nonpayment of premium, at least ten (10) days’ prior written notice) thereof by the respective insurer to the Collateral Agent (unless it is such insurer’s policy not to provide such a statement).

(c)Subject to Section 5.21, keep its insurable Material Real Properties adequately insured, with customary deductibles, at all times by financially sound and reputable insurers, including self-insurance in accordance with customary industry practices; cause all property and casualty insurance policies with respect to the Material Real Properties to be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable endorsement, in form and substance reasonably satisfactory to the Agents and the Required Lenders, which endorsement shall provide that, from and after the Effective Date, if the insurance carrier shall have received written notice from the Administrative Agent or the Collateral Agent of the occurrence of an Event of Default, the insurance carrier shall pay all proceeds otherwise payable to any of the Borrowers under such policies directly to the Collateral Agent; cause all such policies to provide that neither any Borrower, the Administrative Agent, the Collateral Agent nor any other party shall be a coinsurer thereunder; and, with respect to all Material Real Property, deliver original or certified copies of all such policies or a certificate of an insurance broker to the Collateral Agent; cause each such policy to provide that it shall not be canceled or not renewed upon less than thirty (30) days’ prior written notice thereof by the insurer to the Administrative Agent and the Collateral Agent; deliver to the Administrative Agent and the Collateral Agent, prior to the cancellation or nonrenewal of any such policy of insurance, a copy of a renewal or replacement policy (or other evidence of renewal of a policy previously delivered to the Administrative Agent and the Collateral Agent), or insurance certificate with respect thereto, together with evidence satisfactory to the Required Lenders of payment of the premium therefor.

(d)If any portion of any Material Real Property upon which a “Building” (as defined in 12 CFR Chapter 11, Section 339.2) is located is at any time located in an area identified

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by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the Flood Insurance Laws, then the Borrowers shall (i) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Collateral Agent evidence of such compliance in form and substance reasonably acceptable to the Collateral Agent, including, without limitation evidence of annual renewals of such insurance.

(e)Notify the Administrative Agent and the Collateral Agent promptly whenever any separate insurance concurrent in form or contributing in the event of loss with that required to be maintained under this Section 5.02 is taken out by any Borrower or any of its Subsidiaries; and promptly deliver to the Administrative Agent and the Collateral Agent a duplicate original copy of such policy or policies, or an insurance certificate with respect thereto.

(f)To the extent any insurance premium financing is needed, the Borrowers shall provide reasonable notice to the Administrative Agent prior to obtaining such insurance premium financing, provided that, such notice shall not expand, modify, or change the amounts available under the applicable Approved Budget.

(g)In connection with the covenants set forth in this Section 5.02, it is understood and agreed that:

(i)none of the Agents, the Lenders and their respective agents or employees shall be liable for any loss or damage insured by the insurance policies required to be maintained under this Section 5.02, it being understood that (A) the Borrowers and its or their Subsidiaries shall look solely to their insurance companies or any other parties other than the aforesaid parties for the recovery of such loss or damage and (B) such insurance companies shall have no rights of subrogation against the Agents, the Lenders or their agents or employees.  If, however, the insurance policies do not provide waiver of subrogation rights against such parties, as required above, then each Borrower hereby agrees, to the extent permitted by law, to waive, and to cause each of its Subsidiaries to waive, its right of recovery, if any, against the Agents, the Lenders and their agents and employees; and

(ii)the designation of any form, type or amount of insurance coverage by the Administrative Agent, the Collateral Agent or any Lender under this Section 5.02 shall in no event be deemed a representation, warranty or advice by the Administrative Agent, the Collateral Agent or any Lender that such insurance is adequate for the purposes of the business of any Borrower and/or any of its or their Subsidiaries or the protection of their properties.

SECTION 5.03.Payment of Obligations.

(a)In the case of any Debtor, in accordance with the Bankruptcy Code and subject to any required approval by the Bankruptcy Court (it being understood that no Debtor shall be obligated to make any payments hereunder that may, in its reasonable judgment, result in a

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violation of any applicable law, including the Bankruptcy Code, without an order of the Bankruptcy Court authorizing such payment), pay and discharge promptly when due all material post-petition Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property (in the case of any Debtor, solely to the extent arising post-petition), before the same shall become delinquent or in default, as well as all lawful claims for labor, materials and supplies or otherwise (in the case of any Debtor, solely to the extent arising post-petition) that, if unpaid, might give rise to a Lien upon such properties or any part thereof; provided, however, that such payment and discharge shall not be required with respect to (a) any such Tax, assessment, charge, levy or claim so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings, and the affected Borrower or the affected Subsidiary, as applicable, shall have set aside on its books adequate reserves in accordance with GAAP with respect thereto or (b) any Tax referred to on Schedule 5.03 hereto (the “Specified Taxes”).

(b)In the case of any Debtor, in accordance with the Bankruptcy Code and subject to any required approval by the Bankruptcy Court (it being understood that no Debtor shall be obligated to make any payments hereunder that may, in its reasonable judgment, result in a violation of any applicable law, including the Bankruptcy Code, without an order of the Bankruptcy Court authorizing such payment), pay and discharge promptly when due all material pre-petition Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, before the same shall become delinquent or in default, as well as all lawful claims for labor, materials and supplies or otherwise that, if unpaid, might give rise to a Lien upon such properties or any part thereof that will be afforded priority over any Lien granted to the Collateral Agent for the benefit of the Secured Parties; provided, however, that such payment and discharge shall not be required with respect to (a) any such Tax, assessment, charge, levy or claim so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings, and the affected Borrower or the affected Subsidiary, as applicable, shall have set aside on its books adequate reserves in accordance with GAAP with respect thereto or (b) any Specified Taxes.

SECTION 5.04.Financial Statements, Reports; Borrowing Base Information, etc.  Furnish to the Administrative Agent and the Lenders:

(a)upon reasonable request by the Required Lenders (and in any event within twenty-five (25) days after the end of each fiscal month), the consolidated balance sheet of the Borrowers and their Subsidiaries as of the end of such month and related statements of operations and cash flows of the Borrowers and their Subsidiaries for such month and for the period commencing at the end of the previous fiscal year and ending with the end of such month, duly certified by a Financial Officer of CPE, on behalf of the Borrowers, as (A) having been prepared in accordance with GAAP and (B) presenting fairly and accurately the consolidated financial condition and results of operations and cash flows of the Borrowers and the Subsidiaries as of the dates and for the periods to which they relate, subject, in the case of clauses (A) and (B), to the absence of footnotes and to normal year-end audit adjustments none of which will be, individually or in the aggregate, material (provided, that the foregoing obligation shall be deemed satisfied to the extent such information is included in the “Monthly Operating Report” filed with the Bankruptcy Court for the applicable month on or prior to the date specified for compliance in this Section 5.04(a));

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(b)concurrently with any delivery of financial statements under clause (a) above (or in the event of any deemed delivery by filing of a Monthly Operating Report, within 25 days of the end of each fiscal month), a certificate of a Financial Officer of CPE: (A) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) stating whether any change in GAAP as applied by (or in the application of GAAP by) any Borrower has occurred since the Effective Date and, if any such change has occurred (and has not been previously reported to the Administrative Agent and the Lenders ), specifying the effect of such change on the financial statements accompanying such certificate;

(c)if, as a result of any change in accounting principles and policies from those as in effect on the Effective Date, the consolidated financial statements of the Borrower and the Subsidiaries delivered pursuant to paragraph (a) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then, 30 days after the first delivery of financial statements pursuant to paragraph (a) above following such change, a schedule prepared by a Financial Officer on behalf of each Borrower reconciling such changes to what the financial statements would have been without such changes;

(d)[reserved];

(e)promptly, from time to time, such other information regarding the operations, business affairs and financial condition of any Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);

(f)promptly upon the request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor or any Governmental Authority concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request;

(g)(i) as soon as reasonably practicable in advance of filing with the Bankruptcy Court or delivering to the Creditors’ Committee or the Chapter 11 trustee, as the case may be, the Final DIP Order and all other proposed orders and pleadings related to the Loans and the Loan Documents, any Chapter 11 Plan and/or any disclosure statement related thereto and (ii) by the earlier of (1) one Business Day prior to being filed (and if impracticable, then as soon as possible and in no event later than promptly after being filed) on behalf of any of the Debtors with the Bankruptcy Court or (2) at the same time as such documents are provided by any of the Debtors to any statutory committee appointed in the Cases or the Chapter 11 trustee, all other notices, filings, motions, pleadings or other information concerning the financial condition of any Borrower or any of its Subsidiaries or other Indebtedness of the Borrowers or any request for relief under Section 363, 365, 1113 or 1114 of the Bankruptcy Code or Section 9019 of the Federal Rules of Bankruptcy Procedure;

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(h)on or before the last Tuesday of every four-week period, commencing on the fourth Tuesday after the Effective Date, an updated budget consistent with the form and level of detail in the then Approved Budget and otherwise in form and substance reasonably satisfactory to the Required Lenders, which such budget upon the approval of the Required Lenders shall become the Approved Budget (the “Updated Budget”); provided, that, if the Required Lenders have not delivered a written rejection of or proposed comments to the Updated Budget, or shall have asked to become restricted, within three (3) Business Days of receipt of such Updated Budget, the Required Lenders shall be deemed to have approved such Updated Budget and such Updated Budget shall constitute the “Approved Budget”; provided, further, that, (i) after having asked to become restricted, the Required Lenders shall use commercially reasonable good faith efforts to promptly negotiate and enter into a customary non-disclosure agreement and (ii) if the Required Lenders have not delivered a written rejection of or proposed comments to the Updated Budget, within three (3) Business Days after they have become restricted, the Required Lenders shall be deemed to have approved such Updated Budget and such Updated Budget shall constitute the “Approved Budget”;

(i)on or before the Thursday of every calendar week, commencing on the Thursday of the second full week after the Effective Date, (x) a report, in form and detail reasonably satisfactory to the Required Lenders (each a “Variance Report”), setting forth for the Variance Period immediately preceding the date of each such delivery comparing actual cumulative receipts and disbursements, respectively, for such period as set forth in the Approved Budget (broken out separately for CPEL and for the rest of the Borrowers) with an explanation of each Unpermitted Variance and (y) a certificate of a Financial Officer of the Borrowers attesting to the truth and accuracy of such Variance Report;

(j)within twenty-five (25) days after the end of each calendar month, a maintenance log for all machinery and equipment as of the last day of the preceding month, each of which shall be accompanied by supporting detail and documentation reasonably requested by the Required Lenders;

(k)(i) within twenty-five (25) days after the end of each calendar month, (a) if requested by the Required Lenders or their advisors or the Administrative Agent, an appraisal, as of the end of such month, of the Borrowers’ inventory (an “Inventory Appraisal”) prepared by Gordon Bros. or another independent inventory appraiser reasonably acceptable to the Administrative Borrower and the Required Lenders or their advisors (the “Inventory Appraiser”), which Inventory Appraisal shall be prepared in accordance with the methodology used in, and in generally the same format as, the Inventory Appraisal delivered to the Lenders on or prior to the Effective Date, and (b) an appraisal, as of the end of such month, of the Borrowers’ machinery and equipment (the “M&E Appraisal” and, together with the Inventory Appraisal, the “Appraisals”) prepared by Duff & Phelps or another independent machinery and equipment appraiser reasonably acceptable to the Administrative Borrower and the Required Lenders or their advisors (the “M&E Appraiser” and, together with the Inventory Appraiser, the “Appraisers”), which M&E Appraisal shall be prepared in accordance with the methodology used in, and in generally the same format as, the M&E Appraisal delivered to the Lenders on or prior to the Effective Date; and (ii) promptly upon any Borrower (or Responsible Officer thereof) having knowledge of an event that causes the destruction, damage or sale of any machinery, equipment or inventory in each case, that causes an aggregate degradation in the value of the Collateral that will not be fixed or fully mitigated within

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30 days (in each case, as reasonably determined in good faith by the Borrowers) in excess of $500,000, a certificate of a Responsible Officer of the Administrative Borrower detailing such event(s) and including an updated calculation of the Borrowing Base that removes all such destroyed or damaged machinery, equipment or inventory from such calculation (the “Appraisal Certificate”); provided that such $500,000 threshold shall reset upon delivery of any such Appraisal Certificate;

(l)within twenty-five (25) days after the end of each calendar month, and in any event concurrently with any delivery of any Appraisal or Appraisal Certificate under clause (k) above, a certificate (each, an “Borrowing Base Certificate”) setting forth the calculation of the Borrowing Base as of such date of delivery; and

(m)on or before the Thursday of every calendar week, a certificate of a Financial Officer of CPE setting forth computations or evidence in reasonable detail satisfactory to the Required Lenders demonstrating compliance with the covenant contained in Section 6.28 for the prior week.

SECTION 5.05.Lender Conference Calls.

(a)Arrange for a teleconference for the Lenders and their advisors with professional advisors to the Borrowers (including any financial advisor to the Debtors), to take place at least once per calendar week (at such time as is mutually agreeable to the Borrowers and to the Administrative Agent and the Lenders), for purposes of discussing, among other things, any budget proposed to be the Approved Budget, Variance Reports, Borrowing Base Certificates, any updates on status and progress of the sale of any of the Borrowers or their assets, financial statements and any projections and such other information and matters reasonably requested by any Lender.

(b)At the request of the Required Lenders, arrange for a meeting for the Lenders and their advisors with senior management of the Borrowers (including any financial advisor to the Debtors), to take place at least once per calendar month (at such time as is reasonably satisfactory to the Administrative Agent and the Lenders), for purposes of discussing any budget proposed to be the Approved Budget, Variance Reports, Borrowing Base Certificates, any updates on status and progress of the sale of any of the Borrowers or their assets, financial statements and any projections and such other information and matters reasonably requested by any Lender.

SECTION 5.06.Notices.  Furnish to the Administrative Agent written notice of the following promptly (but in any event no later than three (3) calendar days) after the occurrence of any of the following:

(a)any Event of Default or Default, specifying the nature and extent thereof and the corrective action (if any) proposed to be taken with respect thereto;

(b)the filing or commencement of, or any written threat or notice of intention of any person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, including without limitation any Environmental Claim, against any Borrower or any of its or their Subsidiaries as to which an

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adverse determination is reasonably probable and which, if adversely determined, would reasonably be expected to: (i) result in the termination of any Material Contract, Material Lease, Permit (including any Environmental Permit) or license, or (ii) have a Material Adverse Effect;

(c)the termination or material and adverse modification of the terms of any Material Contract, Material Lease, Permit (including any Environmental Permit) or license that would reasonably be expected to result in a Material Adverse Effect;

(d)the occurrence (or reasonable expectation of the occurrence) of any Casualty Events with respect to any portion of the Collateral having an appraised value of $1,000,000 individually or in the aggregate;

(e)(i) the occurrence of any ERISA Event that would reasonably be expected to result in liabilities of the Borrowers in an aggregate amount exceeding $1,000,000, (ii) a material increase in Unfunded Pension Liabilities (taking into account only Plans with positive Unfunded Pension Liabilities) since the date the representations hereunder are given or deemed given, or from any prior notice, as applicable, or (iii) a material increase since the date the representations hereunder are given or deemed given, or from any prior notice, as applicable, in potential withdrawal liability under Section 4201 of ERISA, or the arising of potential withdrawal liability under Section 4201 of ERISA, if each Borrower, each Subsidiary and each ERISA Affiliate were to withdraw completely from any and all Multiemployer Plans;

(f)the receipt of any proposed modifications or amendments to, or notices of a breach or default under, the 2021 Indenture or the 2024 Indenture along with copies thereof;

(g)if any Borrower (or any Responsible Officer thereof) determines, has knowledge or otherwise becomes aware of any events that would cause a material adverse change in the value of any material portion of the Collateral and a detailed explanation of any such adverse change;

(h)any Borrowing Base Deficiency; and

(i)any other occurrence or development that results in, or would reasonably be expected to result in, a Material Adverse Effect;

SECTION 5.07.Compliance with Laws.  Except as otherwise permitted by the Bankruptcy Code, comply with, in all material respects, (a) all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property (owned or leased), including all Mining Laws and Mining Permits; and (b) the provisions of all material licenses, Permits, and coal and purchase supply contracts; provided that this Section 5.07 shall not apply to Environmental Laws, which are the subject of Section 5.10, or to laws related to Taxes, which are the subject of Section 5.03.

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SECTION 5.08.Maintaining Records; Access to Properties; Inspections, Field Exams and Appraisals, Etc.

(a)Maintain proper books of record and account that are full, true and correct in all respects and maintain all financial records in accordance with GAAP.

(b)Permit any representatives or independent contractors designated by designated by the Collateral Agent or the Required Lenders to visit and inspect any of the properties of any Borrower or any Subsidiary to, at the Borrowers’ expense, (i) conduct field examinations of any or all of the Collateral, (ii) conduct evaluations, environmental assessments, environmental audits and ongoing maintenance and monitoring of the assets and properties of the Borrowers and the Subsidiaries, and (iii) inspect, copy and take extracts from its and their respective financial and accounting records; provided, that, so long as no Default or Event of Default has occurred and is continuing, not more than two each of any such examinations, evaluations, assessments and audits may be conducted at the Borrowers’ expense in each fiscal year.

SECTION 5.09.Use of Proceeds.  Use the proceeds of the Loans solely for the purposes described in Section 3.11.

SECTION 5.10.Compliance with Environmental Laws.  Except as otherwise permitted by the Bankruptcy Code, comply, and make commercially reasonable efforts to cause all lessees and other persons occupying its properties to comply, with all Environmental Laws and Environmental Permits applicable to its operations, facilities and properties; and obtain and renew all Environmental Permits, in each case in accordance with Environmental Laws, except, in each case with respect to this Section 5.10, to the extent the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

SECTION 5.11.Compliance with Leases.  Except as otherwise permitted by the Bankruptcy Court or as would not, individually or in the aggregate, be materially adverse to the interests of the Lenders, make all payments and otherwise perform all obligations in respect of all Material Leases to which any Borrower or any of its Subsidiaries is a party, keep such Material Leases in full force and effect and not allow such Material Leases to lapse or be terminated or any rights to renew such Real Property Leases to be forfeited or cancelled, except or in connection with the rejection of any unexpired lease pursuant to Sections 6.18 and 7.01.

SECTION 5.12.First and Second Day Orders.  Cause all proposed “first day” orders and “second day” orders submitted to the Bankruptcy Court to be in accordance with and permitted by the terms of this Agreement and reasonably acceptable to the Administrative Agent in all respects, it being understood and agreed that the forms of orders approved by the Administrative Agent prior to the Petition Date are in accordance with and permitted by the terms of this Agreement in all respects and are reasonably acceptable.

SECTION 5.13.Cash Management .

(a)Establish and maintain a cash management system on terms reasonably acceptable to the Required Lenders and otherwise in accordance with Section 5.12 whereby the

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Collateral Agent (on behalf of the Lenders) has a first priority perfected security interest on all cash of the Borrowers pursuant to a Control Agreement.

(b)Subject to Section 5.21, cause all cash on hand that is not used for the purposes of the proviso in Section 3.11 to be deposited in accounts of the Debtors’ that are subject to Control Agreements and to otherwise be used in accordance with the Approved Budget.

SECTION 5.14.Segregated Account.  Subsequent to each Borrowing but prior to each Weekly Draw, hold the proceeds of the Loans in the Segregated Account.

SECTION 5.15.Certain Case Milestones.  Comply with the following events (each a “Milestone”, collectively “Milestones”) in the applicable timeframes set forth below (as may be extended in writing by the Required Lenders in their sole discretion, which extension may be granted by email notice from counsel to the Administrative Agent):

(a)No later than one (1) Business Day after the Petition Date, the Debtors shall file a motion, in form and substance reasonably satisfactory to the Required Lenders, seeking entry of the DIP Orders.

(b)No later than one (1) Business Day after the Petition Date, the Debtors’ have filed a motion seeking approval of bidding procedures with respect to a 363 Sale of all or substantially all of the Borrowers’ assets, in form and substance reasonably satisfactory to the Required Lenders, in the Cases.

(c)No later than five (5) Business Days after the Petition Date, the Bankruptcy Court shall have entered the Interim DIP Order.

(d)No later than thirty-five (35) days after entry by the Bankruptcy Court of the Interim DIP Order, the Bankruptcy Court shall have entered the Final DIP Order, in form and substance reasonably satisfactory to the Required Lenders, in the Cases.

(e)No later than thirty-five (35) days after the Petition Date, the Bankruptcy Court shall have entered an order approving bidding procedures with respect to a 363 Sale of all or substantially all of the Borrowers’ assets, in form and substance reasonably satisfactory to the Lender Representative, in the Cases.

(f)No later than 60 days after the Petition Date, commencement of an auction for substantially all assets of the Borrowers shall have been held such that consummation of the successful bid(s) would constitute an Acceptable 363 Sale.

(g)No later than 65 days after the Petition Date, the Bankruptcy Court shall have entered a 363 Sale Order, in form and substance reasonably satisfactory to the Required Lenders, with respect to an Acceptable 363 Sale of all or substantially all of the Borrowers’ assets, if any, in the Cases.

(h)No later than 140 days after the Petition Date such Acceptable 363 Sale, if any, shall have closed in accordance with such 363 Sale Order and the Obligations on account of

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the New Money Loans shall have been indefeasibly paid in full and all other Obligations shall be paid in accordance with the terms of the SAPSA.

SECTION 5.16.Budget.  Comply in all respects with the Approved Budget (which compliance shall be deemed satisfied so long as there is not any Unpermitted Variance).

SECTION 5.17.Further Assurances.  Promptly upon request by any Agent or the Required Lenders, (a) correct any defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as any Agent or the Required Lenders may require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject each of the Borrowers’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Loan Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Loan Documents and (iv) subject to the first sentence of Section 3(b) of the Security Agreement, perfect and maintain the validity any of the Liens intended to be created thereunder.

SECTION 5.18.A/R Refunds.  Cause the A/R Securitization Seller to promptly remit any and all A/R Refunds (solely to the extent the remittance is permitted under the A/R Securitization Facility) an account of the Debtors that is subject to a Control Agreement.

SECTION 5.19.Control Agreements.  Subject to Section 5.21, cause all bank accounts of the Borrowers (excluding all Excluded Accounts) to be subject to Control Agreements.

SECTION 5.20.Information Rights.

(a)Promptly upon sending or receipt by, or on behalf of, any Borrower, furnish to the Lenders all material information concerning any of the Borrowers’ efforts to sell all or a portion of their equity or assets to a third party, including but not limited to, copies of all sales and/or offering materials prepared by any of the Borrowers or any of their advisors or representatives (including, without limitation, industry and market analyses, historical financial information, estimated or projected financial and operating data, asset appraisals and similar information), all applicable bidding procedures, all bid letters (together with any related debt or equity financing proposals or commitments), all requests for expense reimbursement or exclusivity, all letters of intent, expressions of interest, offers to purchase, term sheets, and/or draft sale agreements, as well as any notices that such sale, efforts or discussions have been terminated (whether orally or in writing) and, in each case, together with any subsequent drafts showing material changes and/or, in the case of notices, material correspondence.

(b)Without limiting the foregoing, each of the Borrowers shall provide the Lenders with such additional information concerning such sale efforts as the Required Lenders may reasonably request from time to time, including directing any financial advisor engaged by any of the Borrowers to consult with the Lenders regarding the foregoing.

SECTION 5.21.Post-Closing Covenants.  On or prior to the Final DIP Order Entry Date, the Administrative Agent and the Lenders shall have received (i) a Control Agreement

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with respect to each deposit account, securities account and commodities account of each Borrower (other than any Excluded Accounts), in each case, duly executed and delivered by each party thereto, (ii) stock certificates and related stock transfer powers endorsed in blank to the extent representing Equity Interests that are Collateral and (iii) additional insured or lender loss payee endorsements, as applicable, to the extent required to comply with Section 5.02.

SECTION 5.22.Mining Permits and Environmental Permits.  On or prior to the date due, the Borrowers shall deliver to the applicable Governmental Authority such notices required under the Mining Permits and Environmental Permits regarding a change in control solely to the extent required for the exercise of remedies in respect of the Liens created hereunder.

ARTICLE VI.

NEGATIVE COVENANTS

Each Borrower covenants and agrees with each Lender that, so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document have been paid in full and discharged (other than in respect of contingent indemnification as to which no claim has been asserted), unless the Required Lenders shall otherwise consent in writing, each Borrower will not, and will not permit any of its Subsidiaries to, on or after the Effective Date:

SECTION 6.01.Investments.  Purchase or acquire (including pursuant to any merger with a person that is not a Subsidiary immediately prior to such merger) or hold any Equity Interests in, evidences of Indebtedness or other securities of, or make or hold any loans or advances to or Guarantees of the Indebtedness of any other Person (each, an “Investment”), except:

(a)Investments existing on the Effective Date and listed on Schedule 6.01 annexed hereto;

(b)Investments among Borrowers

(c)Investments in accordance with the Approved Budget;

(d)accounts receivable, advances and prepayments and other trade credits made in the ordinary course of business;

(e)Investments resulting from pledges and deposits made in the ordinary course of business;

(f)Investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in good faith settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;

(g)[reserved];

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(h)arising as a result of the A/R Securitization Facility;

(i)[reserved];

(j)Investments to the extent they constitute Indebtedness permitted under Section 6.02;

(k)Investments in cash and cash equivalents or short-term marketable debt securities, in each case entered into in the ordinary course of business;

(l)consisting of production payments, royalties, dedications of reserves under supply agreements or similar rights or interests granted, taken subject to, or otherwise imposed on properties with normal practices in the mining industry;

(m)Investments resulting from pledges and deposits permitted under Section 6.03;

(n)Investments in negotiable instruments deposited for collection and endorsements of negotiable instruments and documents, in each case entered into in the ordinary course of business;

(o)Investments in respect of transactions permitted under Section 6.04; and

(p)deposits of cash or cash equivalents or short-term marketable securities to secure performance or other services and prepaid expenses or other prepaid obligations, in any event, made in the ordinary course of business and consistent with the Approved Budget or otherwise permitted hereunder.

The amount of any Investment, other than a Guarantee, shall be (i) the amount actually invested, as determined at the time of each such Investment, without adjustment for subsequent increases or decreases in the value of such Investment, minus (ii) the amount of dividends or distributions received in connection with such Investment and any return of capital and any payment of principal received in respect of such Investment that in each case is received in cash, cash equivalents or short-term marketable debt securities (not in excess of the amount of Investments originally made).  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.

SECTION 6.02.Indebtedness.  Incur, create, assume or permit to exist any Indebtedness, except:

(a)Indebtedness under the Loan Documents;

(b)Indebtedness outstanding on the Effective Date and listed on Schedule 6.02 hereto;

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(c)Indebtedness arising under the Existing Indenture Documents in an aggregate principal amount not to exceed the aggregate principal amount of such Indebtedness as of the Effective Date plus any interest accreted to the principal balance thereof in accordance with the terms of the Existing Indenture Documents;

(d)Indebtedness under the A/R Securitization Facility Agreement;

(e)Indebtedness specifically provided for in an Approved Budget; and

(f)Indebtedness in respect of financing insurance premiums in the ordinary course of business and consistent with the Approved Budget.

SECTION 6.03.Liens.  Create, incur, assume or permit to exist any Lien on any assets (including stock or other securities of any person, including any Subsidiary) at the time owned by it or on any income or revenues or rights in respect of any thereof, except for:

(a)Liens granted pursuant to the Loan Documents and Liens granted pursuant to Section 10(c) of the Escrow Agreement;

(b)customary rights of setoff and liens upon deposits of cash in accounts in favor of banks or other depository institutions in which such cash is maintained in the ordinary course of business, securing payment of fees, indemnities, charges for returning items and other similar obligations;

(c)Liens securing obligations under the Existing Indenture Documents, subject to Section 6.10(b);

(d)Liens on the A/R Securitization Facility Collateral and the Receivables Equity granted pursuant to the A/R Securitization Facility Documents, subject to Section 6.10(b);

(e)Liens granted pursuant to the Interim DIP Order and the Final DIP Order;

(f)Liens imposed by any Governmental Authority for (i) Specified Taxes (to the extent ranking junior to the Liens under the Interim DIP Order and the Final DIP Order, as applicable), or (ii) any other taxes, assessments or charges that, in the case of this clause (ii) are not yet due or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Borrowers in accordance with GAAP;

(g)Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmens’, storage, landlord, and repairmen’s Liens and other similar Liens arising in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money) not yet due or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Borrowers in accordance with GAAP;

(h)Liens incurred or pledges or deposits made (i) to secure obligations incurred in the ordinary course of business under workers’ compensation laws, unemployment insurance or other similar social security legislation (other than in respect of employee benefit plans subject to

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ERISA) or (ii) to any supplier of the Borrowers to the extent such deposit was set forth in the Approved Budget;

(i)zoning restrictions, easements, licenses, or other restrictions on the use of any real estate (including leasehold title), in each case which do not interfere with or affect in any material respect the ordinary course conduct of the business of the Borrowers and their Subsidiaries;

(j)deposits of money securing leases to which a Borrower is a party as lessee made in the ordinary course of business;

(k)solely on Real Property, Permitted Real Estate Encumbrances;

(l)Liens in existence on the Effective Date securing performance bonds, surety bonds, public or statutory obligations, regulatory obligations or with respect to workers’ compensation claims, and other bonds or obligations of like nature, in each case that are in existence on the Effective Date; and

(m)precautionary Lien filings regarding operating leases.

SECTION 6.04.Restrictions on Fundamental Changes.  Other than pursuant to an Acceptable 363 Sale of all or substantially all of the Borrowers’ assets or an Acceptable Chapter 11 Plan, (a) enter into any transaction of merger, division, consolidation or amalgamation, or liquidate or provisionally liquidate, wind up or dissolve itself (or suffer any liquidation, provisional liquidation or dissolution), except that any Borrower may merge, amalgamate or consolidate with any other Borrower and any Subsidiary may merge, amalgamate or consolidate with any Borrower if the Borrower is the surviving entity; (b) reorganize under the laws of a jurisdiction other than any jurisdiction in the United States; (c) change its name, jurisdiction of formation, chief executive office and/or principal place of business; (d) file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to applicable law with respect to any corporation, limited liability company, partnership or other entity); or (e) sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets (including, without limitation, any sale of all or substantially all of the assets of any Excluded Subsidiary) (in each case, whether now owned or hereafter acquired), other than, in the case of this clause (e), Asset Dispositions permitted by Section 6.05.

SECTION 6.05.Asset Dispositions.  To engage in any Asset Disposition, except for:

(a)Asset Dispositions solely among Borrowers;

(b)the sale, contribution, transfer or other disposition of A/R Securitization Facility Collateral pursuant to and in accordance with the A/R Securitization Documents;

(c)sales, transfers or other dispositions of assets pursuant to any order of the Bankruptcy Court, in form and substance reasonably satisfactory to the Required Lenders,

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permitting de minimis asset dispositions without further order of the Bankruptcy Court as long as the proceeds thereof are promptly deposited in any of the Debtors’ accounts that are subject to a Control Agreement;

(d)sales, transfers or other dispositions of assets contemplated in, and in accordance with, the Approved Budget;

(e)pursuant to an Acceptable 363 Sale pursuant to a 363 Sale Order, which 363 Sale Order shall be in form and substance reasonably satisfactory to the Required Lenders;

(f)a sale conducted pursuant to an Acceptable Chapter 11 Plan pursuant to a Confirmation Order; and

(g)sales, transfers or other dispositions of inventory, used, obsolete or surplus equipment or reserves, dispositions related to the burn-off of mines and cash and cash equivalents and short-term marketable securities in the ordinary course of business and dispositions of surface rights and termination of Mining Leases after the completion of mining and reclamation, and termination or abandonment of water rights no longer needed for mining, in each case as long as such sale, transfer or disposition is made for entirely cash consideration, the proceeds of which are promptly deposited in any of the Debtors’ accounts that are subject to a Control Agreement;

(h)the abandonment, leases, subleases, licenses, sublicenses and cross-licenses of intellectual property in the ordinary course to the extent not material to the normal conduct of its business, and of other personal property that do not involve a substantial and prolonged interruption or disruption of business activities, taken as a whole;

(i)exchanges and relocation of easements in the ordinary course of business;

(j)involuntary loss, damage or destruction of assets (including by condemnation, seizure, taking, confiscation, requisition or transfer in lieu);

(k)Asset Dispositions in respect of transactions permitted to be taken under Section 6.04; and

(l)Asset Dispositions of joint ventures and of subsidiaries who do not own any material assets other than the Equity Interest of a joint venture.

SECTION 6.06.Restricted Payments.  Directly or indirectly make any Restricted Payment, except that:

(a)any Subsidiary may make Restricted Payments to a Borrower (other than a Specified Borrower); and

(b)any Subsidiary may make Restricted Payments to a Specified Borrower to the extent deposited in any of the Debtors’ accounts that are subject to a Control Agreement.

SECTION 6.07.Payments of Indebtedness.  Except pursuant to and simultaneous with the consummation of an Acceptable Chapter 11 Plan, prepay, redeem, purchase defease,

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convert into cash or otherwise satisfy prior to the scheduled maturity in any manner (a) any Indebtedness of any Borrower incurred prior to the Petition Date (including under the Existing Indenture Documents except as permitted by the DIP Orders); (b) any Indebtedness that is subordinated to the Obligations; or (c) any other Indebtedness, except, in the case of clauses (b) and (c), for (i) the payment of the Obligations in accordance with the terms of this Agreement; (ii) the payment of the Borrowers’ obligations in accordance with, and to the extent and in such amounts required under, the A/R Securitization Facility subject to compliance with Section 5.09; and (iii) any payments and expenses provided for in any interim orders or final orders of the Bankruptcy Court entered upon pleadings in form and substance reasonably satisfactory to the Required Lenders.

SECTION 6.08.Transactions with Affiliates(a).  Enter into any transaction or series of related transactions with any Affiliate of any Borrower or any of its Subsidiaries involving aggregate consideration for all such transactions with any Affiliate in excess of $250,000 in any calendar year, except for (i) transactions among solely Borrowers not involving any Subsidiary or any other Affiliate, (ii) the payments of fees and indemnities to directors, officers, consultants and employees in the ordinary course of business consistent with past practice, (iii) arrangements with respect to the procurement of services of directors, officers, independent contractors, consultants or employees in the ordinary course of business and the payment of customary compensation and other benefits and reasonably reimbursement arrangements in connection therewith, in each case, the terms of which are comparable to those that could be obtained with a non-Affiliate third party on an arm’s length basis; (iv) transactions with any joint venture or similar arrangements (including, without limitation, any cash management activities relating thereto); provided that such arrangements are on terms no less favorable to the Borrowers and Subsidiaries, on the one hand, and the relevant joint venture partner and its Affiliates, on the other hand, than could be obtained at the time on an arm’s-length basis from unrelated third parties, but taking into account all related arrangements and transactions entered into by the Borrowers and their Subsidiaries, on the one hand, and the relevant joint venture partner and its Affiliates, on the other hand; (v) the Transactions and (vi) transactions in connection with the A/R Securitization Facility in accordance with and pursuant to the A/R Securitization Facility Documents.

SECTION 6.09.Business of the Borrowers and the Subsidiaries.  Notwithstanding any other provisions hereof, engage at any time in any material business or business activity other than a Permitted Business.

SECTION 6.10.Limitation on Modifications of Organizational Documents, Indebtedness and Certain Other Agreements, etc.

(a)Amend or modify in any manner, or grant any waiver or release under or terminate in any manner adverse to the interests of the Lenders, any Organizational Document of any Borrower or any of the Subsidiaries.

(b)Amend or modify in any manner, or grant any waiver or release under or terminate in any manner without the consent of the Required Lenders, the SAPSA, any of the A/R Securitization Facility Documents or any of the Existing Indenture Documents (including any amendment to grant any additional Liens under the Existing Indenture Documents or the A/R Securitization Facility Documents).

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(c)Enter into (or permit any Subsidiary to enter into) any agreement or instrument that by its terms restricts (i) the payment of dividends or distributions or the making of cash advances by any Borrower or any Subsidiary to any Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary or (ii) the granting of Liens by any Borrower pursuant to the DIP Orders, in each case other than those arising under any Loan Document, except, in the case of clause (i), restrictions existing by reason of:

(A)applicable law, rule, regulation, order, approval, license, permit or similar restriction,

(B)contractual encumbrances or restrictions in effect under any Indebtedness outstanding on the Petition Date and listed on Schedule 6.10 hereto,

(C)restrictions under the Existing Indenture Documents and the A/R Facility Documents;

(D)customary restrictions contained in any agreement relating to the sale of any asset permitted under Section 6.05 pending the consummation of such sale;

(E)customary provisions contained in leases or licenses and other similar agreements entered into in the ordinary course of business and listed on Schedule 6.10 hereto; and

(F)customary restrictions in connection with deposits in the ordinary course of business.

SECTION 6.11.Reserved.

SECTION 6.12.Swap Agreements.  Enter into any Swap Agreement.

SECTION 6.13.Embargoed Person.  To the Borrowers’ knowledge, cause or permit (a) any of the funds or properties of the Borrowers that are used to repay the Loans to constitute property of, or be beneficially owned directly or indirectly by, any person subject to sanctions or trade restrictions under United States law (“Embargoed Person” or “Embargoed Persons”) that is identified on (1) the “List of Specially Designated Nationals and Blocked Persons” maintained by OFAC and/or on any other similar list maintained by OFAC pursuant to any authorizing statute including, but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Order or regulation promulgated thereunder, with the result that the Loans made by the Lenders would be in violation of law, or (2) the Executive Order, any related enabling legislation or any other similar Executive Orders, or (b) any Embargoed Person to have any direct or indirect interest, of any nature whatsoever in the Borrowers, with the result that the Loans are in violation of law.

SECTION 6.14.Anti-Terrorism Law; Anti-Money Laundering.  Directly or indirectly, (i) knowingly conduct any business or engage in making or receiving any contribution

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of funds, goods or services to or for the benefit of any person described in Section 3.21, (ii) knowingly deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order or any other Anti-Terrorism Law or (iii) knowingly engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, in each case in any manner that would result in a violation of law by any Person (including, without limitation, any Borrower or any Lender).

SECTION 6.15.Changes in Fiscal Year.  Make any change in the fiscal year of any Borrower or any of its Subsidiaries.

SECTION 6.16.Changes in Accounting.  Make any change in accounting treatment or reporting practices, except as required by GAAP.

SECTION 6.17.Subsidiaries.  Form or acquire any Subsidiary, unless and until such Subsidiary joins this Agreement, the Security Agreement and the other applicable Loan Documents as a “Borrower” or a “Grantor”, as applicable, together with such other documents, instruments, filings and recordations (including, without limitation, any requirements under Section 5.17(b)) as any Agent or any Lender may reasonably request in order to ensure perfection of the Liens granted to the Collateral Agent (for the benefit of the Secured Parties) by such Subsidiary.

SECTION 6.18.Unexpired Leases; Executory Contracts.  Terminate, reject or assume any unexpired leases or executory contracts (including, without limitation, any Material Lease or Material Contract) or enter into any new Material Lease or Material Contract (other than any customer contract or as otherwise, in each case as contemplated in the Approved Budget), in each case, without the prior written consent (such consent not to be unreasonably withheld) of the Required Lenders.

SECTION 6.19.Approvals.  Let lapse any material governmental, environmental or regulatory approvals or Permits.

SECTION 6.20.Proceedings.  Other than in connection with the royalty dispute described on Schedule 6.20, settle any material litigation or administrative or regulatory proceeding resulting in a liability by any Borrower to any Governmental Authority or any third party, environmental or regulatory authority, or that results in any material restraint on the conduct of business or relinquishment of any material contractual rights; provided, that, in the case of the royalty dispute described on Schedule 6.20, such settlement shall in no event exceed $2,000,000 in the aggregate and shall be payable over 60 months in accordance with the then applicable Approved Budget.

SECTION 6.21.Margin Stock.  Use all or any part of the proceeds of any Loan, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that violates the provisions of the Regulations of the Board, including, to the extent applicable, Regulation U and Regulation X.

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SECTION 6.22.Collateral.  Other than (i) pursuant to a transaction otherwise permitted under this Agreement, (ii) in respect of cash used in accordance with the Approved Budget or (iii) the sale of the A/R Securitization Facility Collateral pursuant to and in accordance with the A/R Securitization Facility Documents, take any action adversely affecting any Collateral.

SECTION 6.23.Weekly Draws.  Make any Weekly Draw unless each of the following conditions have been satisfied on or prior to the date of such Weekly Draw:

(a)the Collateral Agent shall have received, and there shall remain in effect, for the benefit of the Lenders a continuing, valid, binding, enforceable, non-avoidable and perfected security interest in and Lien on the Collateral in the priority set forth in Section 2.19(c);

(b)with respect to each Weekly Draw, no Material Adverse Effect shall have occurred since December 31, 2018;

(c)on such date, both immediately prior to and after giving effect to such Weekly Draw, no Default, Event of Default or Borrowing Base Deficiency shall have occurred or be continuing;

(d)the amount of such Weekly Draw shall be in an amount in accordance with the Approved Budget for the applicable week (taking into account the starting cash balance in the operating accounts of the Borrowers and the Borrowers’ intent to have a cash balance remaining in their accounts, when taken together with amounts in the Segregated Account, of not less than $12,000,000 at the end of such week, it being understood that in no event shall the amount of such Weekly Draw exceed the amount set forth in the Approved Budget (as adjusted for any variance reasonably anticipated by the Borrowers not constituting an Unpermitted Variance in respect of total disbursements for such week) for the applicable week;

(e)the representations and warranties of each Borrower contained in each Loan Document to which it is a party shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the date of such Weekly Draw, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or if applicable, in all respects) as of such earlier date);

(f)the Borrowers shall have paid all fees and expenses of the Agents and the Lenders accrued and payable on or prior to such date and set forth in a monthly invoice delivered to the Borrowers, including the accrued fees and expenses of counsel to each of the Agents and the Lenders payable pursuant to Section 10.05;

(g)the SAPSA shall be in full force and effect; and

(h)no later than 12:00 p.m., Local Time two (2) Business Days prior to the date of such Weekly Draw, the Agents and the Lenders shall have received a Weekly Draw Request.

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SECTION 6.24.Use of Proceeds.  Use, directly or indirectly, to the knowledge of the Borrowers, the proceeds of the Loans or otherwise make available such proceeds to any Person for the purpose of financing activities of or with any person that is the subject of Sanctions, in a Designated Jurisdiction, or in any manner that results in a violation by any Person participating in this Loan, whether as Borrower, Lender or Agent, of (i) any Sanctions, (ii) the FCPA or (iii) any Anti-Terrorism Law.

SECTION 6.25.Carve-Out.

(a)Use any portion of the Carve-Out or any portion of the Collateral or the proceeds thereof for the payment of the fees and expenses of any Person incurred challenging, or in relation to any investigation, litigation, objection or challenge of (i) the Liens or claims of any or all of any Agent and/or any Lender, (ii) any claim or cause of action against any Agent or any Lender (or any of their respective Affiliates), including any claim under Chapter 5 of the Bankruptcy Code, and (iii) any claims or challenges relating to the allocation of value as between encumbered and unencumbered assets (if any).

(b)Use any portion of the Carve-Out, any portion of the Loan or any portion of the Collateral or any proceeds thereof in connection with preventing, hindering or delaying any Agent’s (for the benefit of the Lenders) or any Lender’s enforcement or realization upon the Collateral once an Event of Default has occurred and is continuing.

SECTION 6.26.Orders.  Fail to comply with the Interim DIP Order, Final DIP Order, any 363 Sale Order, or any Confirmation Order.

SECTION 6.27.Bank Accounts.  No Borrower shall open any deposit account, securities account or commodities account unless: (a) permitted to do so by an order of the Bankruptcy Court; and (b) prior to or concurrently with opening such account, deliver to the Collateral Agent a Control Agreement with respect to such account, duly executed and delivered by each of the parties thereto.

SECTION 6.28.Minimum Liquidity.  Permit the aggregate amount of cash in (a) the Segregated Account plus (b) the Debtors’ accounts that are subject to a Control Agreement (when taken in the aggregate) to be less than $12,000,000 at any time; provided that the amount of cash in the Segregated Account shall not be less than $6,000,000 at any time.

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ARTICLE VII.

[RESERVED]

ARTICLE VIII.

EVENTS OF DEFAULT

SECTION 8.01.Events of Default.  In case of the happening of any of the following events (each, an “Event of Default”):

(a)any representation or warranty made or deemed made by a Borrower or any Subsidiary on or after the Effective Date in any Loan Document, or any representation, warranty, statement or information contained in any report, certificate, financial statement or other instrument furnished on or after the Effective Date in connection with or pursuant to any Loan Document, shall prove to have been false or misleading in any material respect (except that such materiality qualifier shall not be applicable to any representation or warranty already qualified by materiality or Material Adverse Effect) when so made, deemed made or furnished by a Borrower or a Subsidiary;

(b)default shall be made in the payment of any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;

(c)default shall be made in the payment of any interest on any Loan or in the payment of any Fee or any other amount (other than an amount referred to in (b) above) due under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of three (3) Business Days;

(d)default shall be made in the due observance or performance by any Borrower or any of the Subsidiaries of any covenant, condition or agreement contained in Sections 2.19, 5.01, 5.02, 5.04(a), 5.04(b), 5.04(g), 5.04(i), 5.04(k), 5.04(l), 5.06, 5.07, 5.08, 5.09, 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.16, 5.17, 5.19, 5.20, 5.21 or in Article VI; provided that any such default that arises as a result of operational or technical error in effectuating cash deposits shall be subject to a one (1) Business day grace period;

(e)(i) default shall be made in the due observance or performance by any Borrower or any of the Subsidiaries of any covenant, condition or agreement contained in Sections 5.03, 5.04 (other than as set forth in paragraph (d) above), 5.05, 5.18 or 5.22 and such default shall continue unremedied for a period of one (1) Business Day; or (ii) default shall be made in the due observance or performance by any Borrower or any of the Subsidiaries of any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraphs (b), (c), (d) and (e)(i) above) and such default shall continue unremedied for a period of thirty (30) days following any Borrower becoming aware of such default;

(f)a default shall be made by any Borrower or any Subsidiary in (i) making any payment of principal of any Material Indebtedness, (ii) making any payment of premium or

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interest on any Material Indebtedness, in each case of clauses (i) and (ii) beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created or incurred, or (iii) the observance or performance of any other agreement or condition relating to any such Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (x) cause, or to permit the holder or beneficiary of such Material Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause (determined without regard to whether any notice is required) such Material Indebtedness to become due prior to its stated maturity or (in the case of any such Material Indebtedness constituting a guarantee obligation) to become payable or (y) to cause (determined without regard to whether any notice is required) any Borrower to purchase or redeem or make an offer to purchase or redeem such Material Indebtedness prior to its stated maturity, in each case of clauses (i), (ii) and (iii) unless the exercise of any rights or remedies by a holder of such Indebtedness is subject to the automatic stay in the Cases;

(g)there shall have occurred a Change in Control;

(h)except as would not reasonably be expected to have a Material Adverse Effect, an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of any Subsidiary that is not a Debtor (any such Subsidiary, an “Applicable Subsidiary”), or of a substantial part of the assets of any Applicable Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Applicable Subsidiary or for a substantial part of the assets of any Applicable Subsidiary or (iii) the winding-up or liquidation of any Applicable Subsidiary; and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;

(i)except as would not reasonably be expected to have a Material Adverse Effect, any Applicable Subsidiary shall (a) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (b) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (h) above, (c) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for an Applicable Subsidiary or for a substantial part of the assets of an Applicable Subsidiary, (d) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (e) make a general assignment for the benefit of creditors or (f) become unable, admit in writing its inability or fail generally to pay its debts as they become due;

(j)the entry of one or more judgments or decrees (other than a judgment or decree against a Borrower entered prior to the Petition Date that is subject to the automatic stay in the Cases) against any Borrower or any Subsidiary involving, in the aggregate, a liability (not paid or covered by insurance as to which the relevant reputable and solvent insurance company has been notified of the claim and has not denied or disputed coverage) of $1,000,000 or more, and all

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such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within sixty (60) days from the entry thereof;

(k)(i) one or more ERISA Events shall have occurred that, when taken together with all other ERISA Events that have occurred, would reasonably be expected to result in a Material Adverse Effect, (ii) there is or arises an Unfunded Pension Liability (taking into account only Plans with positive Unfunded Pension Liability) of $1,000,000 or more, or (iii) there is or arises any potential withdrawal liability under Section 4201 of ERISA, if each Borrower, each Subsidiary and each ERISA Affiliate were to withdraw completely from any and all Multiemployer Plans, of $1,000,000 or more;

(l)any Borrower or Subsidiary shall (directly or indirectly) contest, delay, impede, challenge, impair, object to, or take or attempt to take any other action to contest, delay, impede, challenge, impair or object to, (A) the validity or enforceability of any Loan Document in writing or deny in writing that it has any further liability thereunder, (B) the validity, extent, perfection, or priority of any Liens and security interests securing the Loans or any security interest purported to be created by any Security Document in respect of assets that are material to the Borrowers and the Subsidiaries on a consolidated basis, or (C) the Superpriority Claim;

(m)the Collateral Agent (for the benefit of the Lenders) shall cease to have a valid, enforceable and perfected security interest in and Lien on any Collateral with the priorities set forth in Section 2.19;

(n)(i) any of the Cases of the Debtors shall be dismissed or converted to a case under Chapter 7 of the Bankruptcy Code or any Debtors shall file a motion or other pleading seeking the dismissal of any of the Cases of the Debtors under Section 1112 of the Bankruptcy Code or otherwise without the consent (such consent not to be unreasonably withheld) of the Required Lenders or (ii) a trustee under Chapter 11 of the Bankruptcy Code or an examiner with enlarged powers relating to the operation of the business (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) shall be appointed in any of the Cases of the Debtors;

(o)except as set forth in the DIP Orders, as applicable: (i) an application shall be filed by any Debtor for the approval of any other Superpriority Claim (and the motion seeking approval of the Loan Documents and entry of the DIP Orders shall not constitute such an application), or (ii) an order of the Bankruptcy Court shall be entered granting any other Superpriority Claim (other than the Carve-Out), in any of the Cases of the Debtors that is pari passu with or senior to the claims of the Administrative Agent, the Collateral Agent and the Lenders against any Borrower hereunder or under any of the other Loan Documents, or (iii) any Debtor shall permit there  to arise or otherwise be granted any such pari passu or senior Superpriority Claim (other than the Carve-Out);

(p)the Bankruptcy Court shall enter an order or orders (other than the DIP Orders) granting relief from the automatic stay applicable under Section 362 of the Bankruptcy Code: (i) to permit any creditor to foreclose (or the granting to such creditor of a deed in lieu of foreclosure or the like) on (A) any Collateral or (B) any other assets of any of the Debtors which have a value in excess of $1,000,000 in the aggregate; (ii) with respect to any lien of or the granting

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of any lien on any Collateral to any federal, state, or local governmental or environmental authority or regulatory agency; or (iii) to permit other actions that would have a Material Adverse Effect on the Debtors or their estates (taken as a whole);

(q)(i) an order of the Bankruptcy Court (or any appellate court) shall be entered reversing, amending, supplementing, staying for a period of seven days or more, vacating or otherwise amending, supplementing or modifying the Interim DIP Order or the Final DIP Order, or any Borrower or any Subsidiary shall apply for the authority to do so, in each case in a manner that is adverse to any Agent or any Lenders, without the prior written consent (such consent not to be unreasonably withheld) of the Required Lenders ; (ii) an order of the Bankruptcy Court shall be entered denying or terminating use of cash collateral by the Borrowers and the Borrowers shall have not obtained use of cash collateral pursuant to an order consented to by (such consent not to be unreasonably withheld), and in form and substance reasonably acceptable to, the Required Lenders; (iii) the Interim DIP Order (prior to the entry of the Final DIP Order) or Final DIP Order (at all times thereafter) shall cease to be in full force and effect; (iv) any of the Borrowers or any Subsidiary shall fail to comply with the DIP Orders in any material respect; (v) other than with respect to the Carve-Out, a final non-appealable order in the Cases shall be entered charging any of the Collateral under Section 506(c) of the Bankruptcy Code against the Lenders; or (vi) the Final DIP Order shall not authorize the borrowing by the Borrower of the full amount of the Commitments provided for hereunder;

(r)except as permitted by the DIP Orders or as otherwise agreed to by the Required Lenders, any Debtor shall make (or any Debtor shall apply for authority to make) any Pre-Petition Payment other than Pre-Petition Payments authorized by the Bankruptcy Court in accordance with the “first day” orders of the Bankruptcy Court as set forth in the Approved Budget;

(s)a Chapter 11 Plan (or disclosure statement attendant thereto) that is not an Acceptable Chapter 11 Plan (or disclosure statement attendant thereto) shall be filed or confirmed in any of the Cases of the Debtors, or any order shall be entered which dismisses any of the Cases of the Debtors and which order does not provide for termination of the Commitments and payment in full in cash of the Obligations under the Loan Documents (other than contingent indemnification obligations as to which no claim has been asserted), or any of the Debtors shall seek confirmation of any such plan or entry of any such order;

(t)an order (including, without limitation, a 363 Sale Order) with respect to a 363 Sale that is not an Acceptable 363 Sale, or any other sale of all or substantially all of the assets of the Borrowers without the prior written consent (such consent not to be unreasonably withheld) of the Supermajority Lenders, shall be entered in the Cases;

(u)the entry of an order in the Cases amending, supplementing, staying, reversing, vacating or otherwise modifying (i) any Loan Document, (ii) the Interim DIP Order, (iii) the Final DIP Order, (iv) any order confirming an Acceptable Chapter 11 Plan, (v) any order confirming an Acceptable 363 Sale, (vi) the Confirmation Order, or (vii) a 363 Sale Order, in each case without the prior written consent (such consent not to be unreasonably withheld) of the Supermajority Lenders;

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(v)the entry of any order precluding, modifying or prohibiting any Agent or any Lender from having the right to or being permitted to “credit bid”;

(w)the SAPSA shall cease to be in full force and effect or shall have been terminated;

(x)the bringing of a motion or taking of any action, in each case, by any Debtor in the Cases, or the entry of any order by the Bankruptcy Court in the Cases: (i) without the consent of the Administrative Agent (such consent not to be unreasonably withheld), to obtain additional financing under Section 364(c) and (d) of the Bankruptcy Code that does not provide for the repayment of the Loans and all other Obligations in full in cash on the date of closing of such additional financing or to grant any Lien upon or affecting any Collateral; (ii) that requests or seeks authority for or that approves or provides authority to take any other action or actions adverse to any Agent or any Lender (each in its capacity as such) or their rights and remedies hereunder or their interest in the Collateral; (iii) to avoid repayment of any portion of the Loans or any other Obligations; or (iv) to require repayment of any portion of the payments made on account of the Loans or other Obligations;

(y)the Bankruptcy Court shall have entered an order in the Chapter 11 Cases terminating any of the Debtors’ exclusive right to file or solicit acceptances of a plan or plans or reorganization pursuant to section 1121 of the Bankruptcy Code;

(z)any Borrower or any Subsidiary shall make any attempt or take any action to reduce, setoff or subordinate the Loans, Obligations, or any Liens securing the Loans or other Obligations to any other Indebtedness;

(aa)one or more surety, reclamation or similar bonds securing obligations of any Borrower or any Subsidiary (or any required guaranties thereof or required letters of credit with respect thereto) with an aggregate face amount of $1,000,000 or more shall be actually terminated, suspended or revoked and not replaced within thirty (30) days of such termination, suspension or revocation by one or more of the following: surety, reclamation or similar bonds, letters of credit, proceeds of the Loans (to the extent permitted under the Loan Documents) or alternative guaranty products acceptable to the recipient thereof;

(bb)the occurrence, or the delivery of notice by the “Required Consenting Noteholders” (as defined in the Interim DIP Order)), of the Cash Collateral Termination Date (as defined in the Interim DIP Order);

(cc)any Borrower or other Subsidiary shall take any action in support of any matter set forth in any of the foregoing paragraphs or any other Person shall do so and such application is not contested in good faith by the Borrowers and the relief requested is granted in an order that is not stayed pending appeal, in each case unless the Required Lenders consents in writing (such consent not to be unreasonably withheld) to such action; or

(dd)the “Facility Termination Date”, as such term is defined in the A/R Securitization Facility Agreement, shall have occurred;

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then, notwithstanding the provisions of Section 362 of the Bankruptcy Code, without any application, motion, or notice to, hearing before or order from the Bankruptcy Court but subject to the terms and conditions set forth in the Interim DIP Order and, once entered, the Final DIP Order, and at any time thereafter during the continuance of such event, the applicable Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions, at the same or different times:

(i)terminate, reduce or restrict forthwith the Commitments;

(ii)declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon, the Exit Fee, any other unpaid accrued Fees and all other liabilities and Obligations of the Borrowers accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by each Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding;

(iii)terminate the Facility and the Loan Documents as to any future liability or obligation of the Lenders and the Agents, but without affecting any of the Liens on the Collateral or the Obligations;

(iv)exercise, on behalf of the Secured Parties, all rights and remedies available to it under the Loan Documents, any DIP Order or applicable law, including, without limitation, in respect of the Collateral in accordance with provisions setting forth the rights and remedies of the Secured Parties in the Security Agreement and/or the comparable provisions of any other Security Document, and/or apply, or cause to be applied, any amounts in the Escrow Account consistent with Section 8.01;

(v)exercise any of its rights with respect to Real Property Leases or Material Contracts under Article VII (the exercise of any right under any of the foregoing clauses (i) through (vi), a “Termination Declaration”);

provided, that, upon expiration of the Remedies Notice Period, the Agents, at the direction of the Required Lenders, shall be permitted to exercise all remedies set forth herein, in the Loan Documents, and as otherwise available at law without further order of or application or motion to the Bankruptcy Court; provided, further, that the Agents shall not, and the Required Lenders or Required Lenders, as applicable, shall not direct the Agents to, take any enforcement actions with respect to the Receivables Equity until such time as all obligations under the A/R Securitization Facility (other than contingent indemnification obligations as to which no claim has been asserted) are paid in full.  Notwithstanding anything to the contrary, at any time a default or an Event of Default has occurred and is continuing, (x) the Lenders shall in no event be required to fund the Loan (or any portion thereof) and (y) no Weekly Draws shall be permitted.

SECTION 8.02.Application of Funds.  On the Maturity Date and after the exercise of remedies provided for in Section 8.01 (or after the Obligations have automatically become immediately due and payable), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:

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First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including any Fees, as well as fees, charges and disbursements of counsel to the Agents, the Required Lenders and the Lenders and amounts payable under Sections 2.13, 2.14, 2.15 and 2.18) payable to the Agents, the Required Lenders and/or Lenders in their capacities as such;

Second, to payment of that portion of the Obligations constituting interest on the Loans (other than Roll-Up Loans) and other Obligations, ratably among the Lenders in proportion to the respective amounts described in this clause Second payable to them;

Third, to payment of that portion of the Obligations constituting unpaid principal of the Loans (other than Roll-Up Loans), ratably among the Lenders in proportion to the respective amounts described in this clause Third held by them;

Fourth, to payment of that portion of the Obligations constituting interest on the Roll-Up Loan and other Obligations, ratably among the Lenders in proportion to the respective amounts described in this clause Fourth payable to them;

Fifth, to payment of that portion of the Obligations constituting unpaid principal of the Loans (other than Roll-Up Loans), ratably among the Lenders in proportion to the respective amounts described in this clause Fifth held by them; and

Sixth, to payment of any remaining Obligations, ratably among the Lenders in proportion to the respective amounts described in this clause Sixth held by them; and

Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrowers or as otherwise required by law;

provided, that the application to the Obligations pursuant to this Section 8.02 of amounts received in respect of Collateral that is the Receivables Equity is expressly subject to the priorities set forth in the Interim DIP Order (and, when entered, the Final DIP Order), and all such amounts shall first be allocated in accordance with such priorities before being applied to the Obligations pursuant to this Section 8.02; provided, further, that, to the extent that the Maturity Date has occurred pursuant to clause (f) or (g) of the definition thereof, the application of amounts pursuant to this Section 8.02 shall be subject to Section 4(c) of the SAPSA.

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ARTICLE IX.

THE AGENTS

SECTION 9.01.Appointment.

(a)In order to facilitate the transactions contemplated by this Agreement, Ankura Trust Company, LLC is hereby appointed to act as Administrative Agent and Collateral Agent under this Agreement and the other Loan Documents.  Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are specifically delegated to the Administrative Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto.  The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders, at the direction of the Required Lenders, of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with the performance of its duties as Administrative Agent hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower or any of its Subsidiaries pursuant to this Agreement as received by the Administrative Agent.  Without limiting the generality of the foregoing, the Collateral Agent is hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents, and all such rights and remedies in respect of such Collateral shall be implemented by the Collateral Agent.

(b)Neither the Agents nor any of their respective directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct as determined by a final, nonappealable order of a court of competent jurisdiction, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the terms, conditions, covenants or agreements contained in any Loan Document.  The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements.  The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders if permitted to be taken or not taken with Required Lender direction.  Each Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons.  Neither the Agents nor any of their respective directors, officers, employees or agents shall have any responsibility to any Borrower or any other party hereto or to any Loan Document on account of the failure, delay in performance or breach by, or as a result of information provided by, any Lender of any of its obligations hereunder or to any Lender on

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account of the failure of or delay in performance or breach by any other Lender or any Borrower of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith.  Each Agent may execute any and all duties hereunder by or through agents, employees or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it or Borrowers’ counsel with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel.

SECTION 9.02.Nature of Duties.  The Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders.  The Lenders further acknowledge and agree that so long as an Agent shall make any determination to be made by it hereunder or under any other Loan Document in good faith, such Agent shall have no liability in respect of such determination to any person.  Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into the Loan Documents or otherwise exist against the Administrative Agent.

SECTION 9.03.Resignation by the Agents.  Any Agent may, by written notice to the Administrative Borrower and the Lenders, resign at any time.  Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Administrative Borrower (not to be unreasonably withheld or delayed); provided, that approval of the Administrative Borrower shall not be required during the continuation of a Default or Event of Default.  If no successor shall have been so appointed by the Required Lenders and approved by the Administrative Borrower (to the extent such approval is required) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the applicable Lenders with the consent of the Administrative Borrower (not to be unreasonably withheld or delayed), appoint a successor Agent which shall be a bank with an office in New York, New York (or a bank having an Affiliate with such an office) having a combined capital and surplus that is not less than $500 million or an Affiliate of any such bank.  Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents.  After the Agent’s resignation hereunder, the provisions of this Article IX and Section 10.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. If no successor agent has accepted appointment as Agent by the date which is thirty (30) days following the retiring Agent’s notice of resignation, the retiring Agent’s resignation shall nevertheless thereupon become effective and such Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, and Required Lenders shall perform all of the duties of the Agent hereunder until such time, if any, as a successor Agent has been appointed as provided for above.

SECTION 9.04.Each Agent in Its Individual Capacity.  With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent,

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and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of their Subsidiaries or other Affiliates thereof as if it were not an Agent.

SECTION 9.05.Indemnification.  Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitments hereunder, or if such Commitments shall have expired or been terminated, in accordance with the respective principal amounts of its applicable outstanding Loans) of any reasonable expenses incurred by the Agents, including reasonable counsel fees and compensation of agents and employees paid for services rendered, which shall not have been reimbursed by the Borrowers and (b) to indemnify and hold harmless each Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Agent, or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to an Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements determined by a final and non-appealable order of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Agent.  The agreements in this Section 9.05 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, and the repayment, satisfaction or discharge of any Loans and all other amounts payable hereunder.

SECTION 9.06.Lack of Reliance on Agents.  Each Lender acknowledges that it has, independently and without reliance upon the Agents and any Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.  Without limiting the foregoing, no Agent shall be deemed responsible for the verification of the satisfaction of the conditions or requirements for a Weekly Draw pursuant to Section 6.23 or otherwise, it being understood that the sole responsibility of the Administrative Agent with respect to any Weekly Draw Request is to make the same available to the Lenders and countersign such Weekly Draw Request in the absence of an objection by the Required Lenders, in each case pursuant to Section 2.04(b).

SECTION 9.07.Withholding Taxes.  To the extent required by any applicable laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax.  Without limiting or expanding the provisions of Section 2.15, each Lender shall indemnify and hold harmless the Administrative Agent against, and shall make payable in respect thereof within 10 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the

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Administrative Agent by the Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts paid to or for the account of such Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective).  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 9.07.  The agreements in this Section 9.07 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, and the repayment, satisfaction or discharge of any Loans and all other amounts payable hereunder.

SECTION 9.08.Credit Bidding.  The Borrowers and the Lenders hereby irrevocably authorize each Agent, based upon the written instruction of the Required Lenders, to (a) consent to, credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including, without limitation, under Section 363 of the Bankruptcy Code or in connection with a Chapter 11 Plan, (b) credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale, transfer or other disposition thereof conducted under the provisions of the UCC, including pursuant to Sections 9-610 or 9-620 of the UCC, or (c) credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any other sale or foreclosure conducted by any Agent (whether by judicial action or otherwise) in accordance with applicable law.  In connection with any such credit bid or purchase, (i) the Obligations owed to the Lenders shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not unduly delay the ability of any Agent to credit bid or purchase at such disposition of the Collateral and, if such claims cannot be estimated without unduly delaying the ability of the applicable Agent to credit bid, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the asset or assets purchased by means of such credit bid) and the Lenders whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the asset or assets so purchased (or in the Equity Interests of the acquisition vehicle or vehicles that are used to consummate such purchase), and (ii) each Agent, based upon the written instruction of the Required Lenders, may accept non-cash consideration, including debt and equity securities issued by such acquisition vehicle or vehicles, and in connection therewith the Administrative Agent may reduce the Obligations owed to the Lenders (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon the value of such non-cash consideration.

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ARTICLE X.

MISCELLANEOUS

SECTION 10.01.Notices.

(a)Notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:

(i)if to any Borrower,

Cloud Peak Energy Resources LLC
385 Interlocken Crescent, Suite 400
Broomfield, CO 80021
Attention: Bryan Pechersky
Email: Bryan.Pechersky@cldpk.com

(ii)if to the Administrative Agent or the Collateral Agent,

Ankura Trust Company, LLC
140 Shearman Street, 4th Floor
Fairfield, CT 06824
Attention: Michael Fey
Telecopy: (603) 609-0707
Phone: (980) 226-7633
Email: michael.fey@ankura.com

with a copy (which shall not constitute notice) to:

Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Attn: Damian Schaible and Aryeh Falk
Email: damian.schaible@davispolk.com; aryeh.falk@davispolk.com

(iii)if to any Lender, to it at the address listed on its signature page hereto or in the Assignment and Acceptance to which it is a party.

(b)Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent.  Each of the Administrative Agent, the Collateral Agent, each Lender and each Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided, further, that approval of such procedures may be limited to particular notices or communications.

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(c)All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service, sent by telecopy or (to the extent permitted by paragraph (b) above) electronic means (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient) or on the date five (5) Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 10.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 10.01.

(d)Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.

SECTION 10.02.Survival of Agreement.  All covenants, agreements, representations and warranties made by the Borrowers herein, in the other Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and shall survive the making by the Lenders of the Loans and the execution and delivery of the Loan Documents, regardless of any investigation made by such persons or on their behalf, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any Fee or any other amount payable under this Agreement or any other Loan Document is outstanding and unpaid and so long as the Commitments have not been terminated.  Without prejudice to the survival of any other agreements contained herein, indemnification and reimbursement obligations contained herein (including pursuant to Sections 2.13, 2.15, 9.05 and 10.05) shall survive the payment in full of the principal and interest hereunder and the termination of the Commitments or this Agreement.

SECTION 10.03.Binding Effect, Effectiveness.  This Agreement shall become binding (subject, however, to the satisfaction of the other conditions set forth in Section 4.01) when this Agreement shall have been executed by the Borrowers and the Agents and when the Administrative Agent shall have received copies thereof which, when taken together, bear the signature of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the Borrowers, the Agents and each Lender and their respective permitted successors and assigns; provided, however, this Agreement shall not become binding upon the Borrowers unless and to the extent approved by the Bankruptcy Court.

SECTION 10.04.Successors and Assigns.

(a)The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and registered assigns permitted hereby, except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by any Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section.  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any person (other than the parties hereto, their respective successors and assigns permitted hereby, including any Participants, to the extent provided in paragraph (c) of this Section, and, to the extent

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expressly contemplated hereby, the Related Parties of each of the Agents, the Lenders and, to the extent expressly contemplated hereby, the other Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b)(i)Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:

(A)the Administrative Borrower (which consent shall be deemed given unless the Administrative Borrower shall have objected thereto by written notice to the Administrative Agent within five (5) Business Days after delivery of a written request for such consent), provided that no consent of the Administrative Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender or if an Event of Default has occurred and is continuing; and

(B)the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of to a Lender, an Affiliate of a Lender or Approved Fund immediately prior to giving effect to such assignment.

(ii)Assignments shall be subject to the following additional conditions:

(A)except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment, the amount of the commitment of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000, unless the Administrative Agent otherwise consents;

(B)each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;

(C)the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500; provided that no such recordation fee shall be due in connection with an assignment to an existing Lender or Affiliate of a Lender or an Approved Fund of such Lender or an assignment by the Administrative Agent;

(D)any Roll-Up Loan may only be assigned subject to the concurrent assignment to the same assignee of Corresponding New Money Loans actually funded in a principal amount of the percentage to be specified in the Final DIP Order (for purposes of this provision not counting any in-kind fees paid on such

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New Money Loans or any interest paid or accrued on such fees) of the Roll-Up Loan so assigned; and

(E)           any New Money Loan may only be assigned subject to the concurrent assignment to the same assignee of Roll-Up Loans (in a principal amount of the percentage to be specified in the Final DIP Order (for purposes of this provision not counting any in-kind fees paid on such New Money Loans or any interest paid or accrued on such fees) of such New Money Loan) for which such assigned New Money Loan is a Corresponding New Money Loan.

(iii)          Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Acceptance the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender hereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.13, 2.15, 2.16 and 10.05).  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.

(iv)          The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall maintain at one of its offices a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal and interest amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive, and the Borrowers, the Agents and the Lenders shall treat each person whose name is recorded in the Register pursuant to the terms hereof as the Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

(v)           Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register.  No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.

(vi)          No such assignment shall be made (A) to any Borrower or any of any Borrower’s Affiliates or Subsidiaries or (B) to a natural person.

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(c)           (i)            Any Lender may, without the consent of any Borrower or the Administrative Agent, sell participations to one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument (oral or written) pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement and the other Loan Documents; provided that (x) such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 10.04(a)(i) or clauses (i), (ii), (iii), (iv), (v) or (vi) of the first proviso to Section 10.08(b) that affects such Participant and (y) no other agreement (oral or written) with respect to such Participant may exist between such Lender and such Participant.  Subject to paragraph (c)(ii) of this Section, the Borrowers agree that each Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 to the same extent, and subject to the same documentary requirements, as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section (subject to the requirements and limitations of such sections as if it were a Lender).  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.06 as though it were a Lender; provided that such Participant shall be subject to Section 2.16(c) as though it were a Lender.

(ii)           A Participant shall not be entitled to receive any greater payment under Section 2.13 or 2.15 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to a greater payment results from a Change in Law after the sale of the participation takes place.

(iii)          Each Lender shall, acting for this purpose as a non-fiduciary agent of the Borrowers, maintain at one of its offices a register for the recordation of the names and addresses of its Participants, and the amount and terms of its participations, including specifying any such Participant’s entitlement to payments of principal and interest, and any payments made, with respect to each such participation (the “Participant Register”).  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.

(d)           Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any

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pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank having jurisdiction over such Lender, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

SECTION 10.05.         Expenses; Indemnity.

(a)           Each Borrower jointly and severally with the other Borrowers agrees to pay all reasonable costs and expenses (including Other Taxes) incurred by the Agents, the Required Lenders and the Lenders in connection with the preparation of this Agreement and the other Loan Documents, or by the Agents, the Required Lenders and the Lenders in connection with the administration of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination, reasonable fees, disbursements and the charges for counsel (including in each jurisdiction where Collateral is located), and search, filing and recording fees associated therewith and in connection the Cases) or in connection with any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated) or incurred by the Agents, the Required Lenders or any Lender in connection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the Loans made hereunder, in each case, including, without limitation, the reasonable fees, charges and disbursements of Davis Polk & Wardwell LLP (counsel for the Required Lenders), Morris, Nichols, Arsht & Tunnell LLP (Delaware counsel for the Required Lenders) and any other professional advisors retained by any Agent, the Required Lenders, any Lender or any of the foregoing law firms, and, in connection with any such enforcement or protection, the reasonable fees, charges and disbursements of any other counsel, including the reasonable fees, charges and disbursements of counsel for the Agents, the Required Lenders and each Lender.  Notwithstanding anything to the contrary, all such costs, fees, expenses, charges and disbursements under this clause (a) shall be due and payable by the Borrowers on: (i) the date of entry of the Interim DIP Order; (ii) the date of entry of the Final DIP Order; (iii) the date of payment in full in cash of the Obligations under the Loan Documents (other than contingent indemnification obligations as to which no claim has been asserted); (iv) the date of Consummation of a Chapter 11 Plan; and (v) otherwise, within seven (7) Business Days after delivery of an invoice therefor to the Administrative Borrower.

(b)           Each Borrower agrees to indemnify the Agents, the Required Lenders, each Lender and each of their Related Parties (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, settlement payments, damages, liabilities, litigation, obligations, actions or causes of action, investigations or proceedings and related costs and expenses, including reasonable counsel fees, charges and disbursements, incurred by or asserted or brought against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby or by any other Loan Document, (ii) any actual or proposed use of the proceeds of the Loans, (iii) the Cases, or (iv) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and whether or not brought by a Borrower or any of its Subsidiaries

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or any other Person, except in each case to the extent resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final non-appealable order of a court of competent jurisdiction.  Subject to and without limiting the generality of the foregoing sentence, each Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities, litigation, investigations or proceedings and related expenses, including reasonable counsel or consultant fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any Environmental Claim related in any way to any Borrower or any of its Subsidiaries, (B) any violation or alleged violation of any Environmental Law or Environmental Permit by or related in any way to any Borrower or any of its Subsidiaries, or (C) any actual or alleged presence, Release or threatened Release of or exposure to Hazardous Materials at, under, on or from any property or facility owned, leased or operated by any Borrower or any of its Subsidiaries, or by any predecessor of any Borrower or any of its Subsidiaries, except in each case to the extent resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final non-appealable order of a court of competent jurisdiction.  The provisions of this Section 10.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of any Agent, the Required Lenders or any Lender.  All amounts due under this Section 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.  Each Borrower agrees that in the event that any actions or proceedings are in effect or are threatened by, or any Agent or any Lender reasonably believes any actions or proceedings may be brought by, the Creditors’ Committee or any other party in interest attacking the legality, validity, enforceability of the obligations under the Loan Documents or the Liens arising under the Loan Documents at the time of the consummation of any sale of the assets of the Borrowers or at the time that Borrowers propose to pay and satisfy the Obligations in full, the Collateral Agent may (and shall at the direction of the Required Lenders) hold a reserve following the date of payment in full of the Obligations as cash collateral for the expenses or claims expected to be incurred in connection with such actions or proceedings until the earlier of (x) the Collateral Agent’s receipt of a general release satisfactory in form and substance to the Collateral Agent and the Required Lenders, and (y) the entry of a final non-appealable order determining the outcome of such litigation.

(c)           Except as expressly provided in Section 10.05(a) with respect to Other Taxes, which shall not be duplicative with any amounts paid pursuant to Section 2.15, this Section 10.05 shall not apply to Taxes, except any Taxes that represent losses, claims, damages or liabilities arising from any non-Tax claim.

(d)           No Borrower shall assert, and each Borrower hereby waives, any claim against any Indemnitee by any Borrower or its or their Affiliates, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof.

(e)           No Indemnitee referred to in paragraph (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials

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distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

SECTION 10.06.         Right of Set-off.  Subject to the DIP Orders and the final proviso of Section 8.01, if an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender to or for the credit or the account of any Borrower or any Subsidiary against any of and all the obligations of the Borrower now or hereafter existing under this Agreement or any other Loan Document held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such other Loan Document and although the obligations may be unmatured.  The rights of each Lender under this Section 10.06 are in addition to other rights and remedies (including other rights of set-off) that such Lender may have.

SECTION 10.07.         Applicable Law.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND (TO THE EXTENT APPLICABLE) THE BANKRUPTCY CODE.

SECTION 10.08.         Waivers; Amendment.

(a)           No failure or delay of the Agents, the Required Lenders or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Agents, the Required Lenders and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  No notice or demand on any Borrower in any case shall entitle such person to any other or further notice or demand in similar or other circumstances.

(b)           Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Administrative Borrower and the Required Lenders, and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Collateral Agent and consented to by the Required Lenders; provided, that no such agreement shall:

(i)            decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan, without the prior written consent of each Lender directly affected thereby; provided that clauses (b) through (i) of the definition of

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“Maturity Date” may be amended or modified with the prior written consent of the Supermajority Lenders;

(ii)           increase or extend the Commitment of any Lender or decrease the fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender and that the date set forth in Section 2.01(f)(iii) may be extended with the prior written consent of the Supermajority Lenders);

(iii)          extend any date on which payment of interest on any Loan or any Fees is due, without the prior written consent of each Lender adversely affected thereby;

(iv)          amend or modify the provisions of Section 2.16(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby;

(v)           amend or modify the provisions of this Section or the definition of the term “Required Lenders”, “Supermajority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders or “Supermajority Lenders” on substantially the same basis as the Loans and Commitments are included on Effective Date);

(vi)          release all or substantially all the Collateral or all or substantially all of the value of the Guarantees without the prior written consent of each Lender (except in connection with an Acceptable 363 Sale or pursuant to an Acceptable Chapter 11 Plan);

(vii)         amend or modify the Superpriority Claim status of the Lenders under the DIP Orders or under any other Loan Documents without the consent of each Lender;

(viii)        amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Collateral Agent without the prior written consent of the Administrative Agent or the Collateral Agent, respectively, acting as such, at the effective date of such agreement, as applicable.  Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 10.08 and any consent by any Lender pursuant to this Section 10.08 shall bind any assignee of such Lender;

(ix)          waive, amend or modify any condition set forth in Section 4.01 or 4.02 without the prior written consent of the Supermajority Lenders; or

(x)           waive, amend or modify any of the definitions of “Acceptable 363 Sale”, “Acceptable Chapter 11 Plan”, “Advance Rate” (other than in connection with an Incremental Amendment as set forth in Section 2.06), “Borrowing Base”, “Confirmation

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Order”, “Final DIP Order”, “Interim DIP Order”, “Prohibited Plan or Sale” or “Remedies Provision” without the prior written consent of the Supermajority Lenders;

(c)           Without the consent of any Lender, the Borrowers and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.

SECTION 10.09.         Interest Rate Limitation.  Notwithstanding anything herein to the contrary, if at any time the applicable interest rate, together with all fees and charges that are treated as interest under applicable law (collectively, the “Charges”), as provided for herein or in any other document executed in connection herewith, or otherwise contracted for, charged, received, taken or reserved by any Lender, shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by such Lender in accordance with applicable law, the rate of interest payable hereunder, together with all Charges payable to such Lender, shall be limited to the Maximum Rate, provided that such excess amount shall be paid to such Lender on subsequent payment dates to the extent not exceeding the legal limitation.

SECTION 10.10.         Entire Agreement.  This Agreement, the other Loan Documents and the agreements regarding certain Fees referred to herein constitute the entire contract between the parties relative to the subject matter hereof.  Any previous agreement among or representations from the parties or their Affiliates with respect to the subject matter hereof is superseded by this Agreement and the other Loan Documents.    Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any party other than the parties hereto and thereto any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan Documents.  To the extent that any provision herein is inconsistent with any term of the DIP Orders, the DIP Order shall control.

SECTION 10.11.         WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.11.

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SECTION 10.12.         Severability.  In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby.  The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

SECTION 10.13.         Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one contract, and shall become effective as provided in Section 10.03.  Delivery of an executed counterpart to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed original.

SECTION 10.14.         Headings.  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

SECTION 10.15.         Jurisdiction; Consent to Service of Process.

(a)           Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Bankruptcy Court and, if the Bankruptcy Court does not have (or abstains from) jurisdiction, any federal court of the United States of America sitting in New York County, and any appellate court from any thereof, and, if such federal courts do not have (or abstain from jurisdiction), any New York State court, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents (other than under any Security Document governed by a law other than the laws of the State of New York or with respect to any Collateral subject thereto), or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined and shall be brought exclusively in such federal or, to the extent applicable, New York State court.  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement shall affect any right that any Lender or Agent may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against any Borrower or their properties in the courts of any jurisdiction.

(b)           Each Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New York State or federal court.  Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

SECTION 10.16.         Confidentiality.  Each of the Lenders and each of the Agents agrees that it shall maintain in confidence any information relating to the Borrowers furnished to

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it by or on behalf of the Borrowers (other than information that (a) has become generally available to the public other than as a result of a disclosure by such party, (b) has been independently developed by such Lender or such Agent without violating this Section 10.16 or (c) was available to such Lender or such Agent from a third party having, to such person’s knowledge, no obligations of confidentiality to any Borrower) and shall not reveal the same other than to its directors, trustees, officers, employees, advisors, agents and auditors with a need to know or to any person that approves or administers the Loans on behalf of such Lender (so long as each such person shall have been instructed to keep the same confidential in accordance with this Section 10.16), except (A) to the extent necessary to comply with law or any legal or regulatory process (including any self-regulatory authority) or the requirements of any Governmental Authority, the National Association of Insurance Commissioners or of any securities exchange on which securities of the disclosing party or any Affiliate of the disclosing party are listed or traded, (B) as part of normal reporting or review procedures to Governmental Authorities or the National Association of Insurance Commissioners, (C) to its parent companies, Affiliates, auditors and its, and its Affiliates’, respective partners, directors, officers, employees, agents, advisors and other representatives (so long as each such person shall have been instructed to keep the same confidential in accordance with this Section 10.16), (D) in order to enforce its rights under any Loan Document in a legal proceeding, (E) to any prospective assignee of, or prospective Participant in, any of its rights under this Agreement (so long as such person shall have been instructed to keep the same confidential in accordance with this Section 10.16 or as shall be required to keep the same confidential pursuant to any letter or agreement with confidentiality provisions at least as restrictive as this Section 10.16), (F) to any direct or indirect contractual counterparty in any Swap Agreements or such contractual counterparty’s professional advisor (so long as such contractual counterparty or professional advisor to such contractual counterparty agrees to be bound by the provisions of this Section 10.16 or as shall be required to keep the same confidential pursuant to any letter or agreement with confidentiality provisions at least as restrictive as this Section 10.16), (G) with the consent of the Administrative Borrower, (H) to any nationally recognized rating agency in connection with ratings issued with respect to such Lender and (I) to other parties to this Agreement.

SECTION 10.17.         Website Communications.

(a)           Delivery.  (i) Each Borrower hereby agrees that it will use all reasonable efforts to provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to this Agreement and any other Loan Document, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (A) relates to a request for a new, or a conversion of an existing, borrowing or other extension of credit (including any election of an interest rate or interest period relating thereto), (B) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (C) provides notice of any Default or Event of Default under this Agreement or (D) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any borrowing or other extension of credit hereunder (all such non-excluded communications collectively, the “Communications”), by transmitting the Communications in an electronic/soft medium in a format reasonably acceptable to the Administrative Agent to the address set forth in Section 10.01(a).  Nothing in this Section 10.17

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shall prejudice the right of the Agents, any Lender or any Borrower to give any notice or other communication pursuant to this Agreement or any other Loan Document in any other manner specified in this Agreement or any other Loan Document.

(ii)           The Administrative Agent agrees that receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents.  Each Lender agrees that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents.  Each Lender agrees (A) to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and (B) that the foregoing notice may be sent to such e-mail address.

(b)           Posting.  Each Borrower further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the Communications on Intralinks or a substantially similar electronic transmission system (the “Platform”).

(c)           The Platform is provided “as is” and “as available.” The Agent Parties do not warrant the accuracy or completeness of the Communications, or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the communications.  No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform.  In no event shall the Administrative Agent or any of its affiliates or any of their respective officers, directors, employees, agents advisors or representatives (collectively, “Agent Parties”) have any liability to the Borrowers, any Lender or any other person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Borrower’s or the Administrative Agent’s transmission of communications through the internet, except to the extent the liability of any Agent Party is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Agent Party’s gross negligence or willful misconduct.

(d)           Notwithstanding anything to the contrary herein, upon receipt of any information, documents and other materials that any Borrower is obligated to furnish to any Agent pursuant to this Agreement and/or any other Loan Document, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials, such Agent agrees that it shall promptly furnish such information, documents and other materials to each Lender (whether through the Platform or otherwise).

SECTION 10.18.         U.S. PATRIOT Act.  Each Lender hereby notifies each Borrower that pursuant to the requirements of the Executive Order No. 13224 on Terrorist Financing, effective September 23, 2001, and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (signed into law on October 26, 2001) (the “U.S. PATRIOT Act”), it is required to obtain, verify

110

and record information that identifies Borrowers, which information includes the name and address of each Borrower and other information that will allow the Lenders to identify such Borrower in accordance with the U.S. PATRIOT Act.

SECTION 10.19.         No Fiduciary Duty.  Each Agent, the Required Lenders, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Borrowers, their stockholders and/or their affiliates.  Each Borrower agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Borrower, its stockholders or its affiliates, on the other.  The Borrowers acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Borrowers, on the other and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Borrower, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Borrower, its stockholders or its Affiliates on other matters) or any other obligation to any Borrower except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of any Borrower, its management, stockholders, creditors or any other Person.  Each Borrower acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.  Each Borrower agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Borrower, in connection with such transaction or the process leading thereto.

[Remainder of Page Intentionally Left Blank; Signature Pages Follow]

111

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first written above.

CLOUD PEAK ENERGY INC.,
CLOUD PEAK ENERGY RESOURCES LLC
CABALLO ROJO HOLDINGS LLC,
CORDERO MINING HOLDINGS LLC,
CLOUD PEAK ENERGY SERVICES COMPANY,
NERCO LLC,
CLOUD PEAK ENERGY FINANCE CORP.,
CABALLO ROJO LLC,
CORDERO MINING LLC,
NERCO COAL LLC,
CORDERO OIL AND GAS LLC,
CLOUD PEAK ENERGY LOGISTICS LLC,
BIG METAL COAL CO. LLC,
ANTELOPE COAL LLC,
KENNECOTT COAL SALES LLC,
PROSPECT LAND AND DEVELOPMENT LLC,
SPRING CREEK COAL LLC,
SEQUATCHIE VALLEY COAL CORPORATION,
CLOUD PEAK ENERGY LOGISTICS I LLC,
ARROWHEAD I LLC,
WESTERN MINERALS LLC,
RESOURCE DEVELOPMENT LLC,
NERCO COAL SALES LLC,
ARROWHEAD II LLC,
ARROWHEAD III LLC,
YOUNGS CREEK HOLDINGS I LLC,
YOUNGS CREEK HOLDINGS II LLC, and
YOUNGS CREEK MINING COMPANY, LLC,
as Debtors and Debtors-in-Possession,
as Borrowers
By:	/s/ Heath A. Hill
Name:	Heath A. Hill
Title:	Executive V.P. and Chief Financial Officer

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

ANKURA TRUST COMPANY, LLC, as
Administrative Agent and Collateral Agent
By:	/s/ Ryan M. Roy
Name:	Ryan M. Roy
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Arena Short Duration High Yield Fund,
L.P., Series A, as Lender
By: ARENA CAPITAL ADVISORS, LLC
for and on behalf of the funds and accounts
it manages
By:	/s/ Sanije Perrett
Name:	Sanije Perrett
Title:	President
Arena Short Duration High Yield Fund,
L.P., Series B, as Lender
By: ARENA CAPITAL ADVISORS, LLC
for and on behalf of the funds and accounts
it manages
By:	/s/ Sanije Perrett
Name:	Sanije Perrett
Title:	President
Arena Short Duration High Yield Fund,
L.P., Series C, as Lender
By: ARENA CAPITAL ADVISORS, LLC
for and on behalf of the funds and accounts
it manages
By:	/s/ Sanije Perrett
Name:	Sanije Perrett
Title:	President

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Arena Short Duration High Yield Fund,
L.P., Series D, as Lender
By: ARENA CAPITAL ADVISORS, LLC
for and on behalf of the funds and accounts
it manages
By:	/s/ Sanije Perrett
Name:	Sanije Perrett
Title:	President
Arena VII, LLC, as Lender
By: ARENA CAPITAL ADVISORS, LLC
for and on behalf of the funds and accounts
it manages
By:	/s/ Sanije Perrett
Name:	Sanije Perrett
Title:	President
INKA for the account of beTum,
By: ARENA CAPITAL ADVISORS, LLC
for and on behalf of the funds and accounts
it manages
By:	/s/ Sanije Perrett
Name:	Sanije Perrett
Title:	President

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

TDC, National Assurance Company
By: ARENA CAPITAL ADVISORS, LLC
for and on behalf of the funds and accounts
it manages
By:	/s/ Sanije Perrett
Name:	Sanije Perrett
Title:	President
The Doctor’s Company, an Interinsurance Exchange
By: ARENA CAPITAL ADVISORS, LLC
for and on behalf of the funds and accounts
it manages
By:	/s/ Sanije Perrett
Name:	Sanije Perrett
Title:	President

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

GRACE BROTHERS, LP, as Lender
By: BRO-GP, LLC
A General Partner
By:	/s/ Bradford T. Whitmore
Name:	Bradford T. Whitmore
Title:	Manager

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

American Century Investment Trust — High Income Fund, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

American Century U.S. High Yield Corporate Bond Collective Fund, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Nomura Bond & Loan Fund, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Blue Cross and Blue Shield Association National Retirement Trust, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Delta Pilots Disability and Survivorship Trust, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Delta Master Trust, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Government of Guam Retirement Fund, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Illinois State Board of Investment, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

L-3 Communications Corporation Master Trust, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Louisiana State Employees’ Retirement System, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Stichting Mars Pensioenfonds, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Mars Associates Retirement Plan, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Commonwealth of Massachusetts Employees Deferred Compensation Plan, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Montgomery County Employees’ Retirement System, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Montgomery County Consolidated Retiree Health Benefits Trust, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Nomura Funds Ireland plc — Global High Yield Bond Fund, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Nomura US Attractive Yield Corporate Bond Fund Mother Fund, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

National Railroad Retirement Investment Trust, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

General Organization for Social Insurance, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Northern Multi-Manager High Yield Opportunity Fund, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Ohio Public Employees Retirement System, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

PACE High Yield Investments, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Pension Danmark
Pensionforsikringsaktieselskab, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Pinnacol Assurance, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Stichting Pensioenfonds Hoogovens, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

The State of Connecticut Acting Through Its treasurer, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Stichting Pensioenfonds TNO, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Kapitalforeningen MP Invest High yield obligationer V, as Lender
By: Nomura Corporate Research and Asset Management, Inc., its investment manager
By:	/s/ Stephen Kotsen
Name:	Stephen Kotsen
Title:	Managing Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

TIAA Global Public Investments, LLC - Series Loan, as Lender
By: Teachers Advisors, LLC, its investment manager
By:	/s/ Ji Min Shin
Name:	Ji Min Shin
Title:	Senior Director
TIAA Global Public Investments, LLC — Series High Yield, as Lender
By: Teachers Advisors, LLC, its investment manager
By:	/s/ Ji Min Shin
Name:	Ji Min Shin
Title:	Senior Director
TIAA-CREF High Yield Fund, as Lender
By: Teachers Advisors, LLC, its investment manager
By:	/s/ Ji Min Shin
Name:	Ji Min Shin
Title:	Senior Director
TIAA-CREF Bond Plus Fund, as Lender
By: Teachers Advisors, LLC, its investment manager
By:	/s/ Ji Min Shin
Name:	Ji Min Shin
Title:	Senior Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

Teachers Insurance and Annuity Association of America, as Lender
By: Nuveen Alternatives Advisors LLC, its investment manager
By:	/s/ Ji Min Shin
Name:	Ji Min Shin
Title:	Senior Director

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

WEXFORD SPECTRUM INVESTORS LLC
By:	/s/ Arthur Amron
Name:	Arthur Amron
Title:	Vice President and Assistant Secretary
WEXFORD CATALYST INVESTORS LLC
By:	/s/ Arthur Amron
Name:	Arthur Amron
Title:	Vice President and Assistant Secretary
DEBELLO INVESTORS LLC
By:	/s/ Arthur Amron
Name:	Arthur Amron
Title:	Vice President and Assistant Secretary

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

WOLVERINE FLAGSHIP FUND TRADING LIMITED, as Lender
By: WOLVERINE ASSET MANAGEMENT, LLC, its investment manager
By:	/s/ Niraj Patel
Name:	Niraj Patel
Title:	Chief Legal Officer

[Signature Page to Superpriority Senior Secured Priming Debtor-In-Possession Credit Agreement]

EX-99.1

Exhibit 99.1

Cloud Peak Energy Receives Court Approval of “First Day” Motions to Support Business Operations

Obtains Interim Approval to Access $10 Million of its $35 Million Debtor-in-Possession Financing

Mines to Continue Normal Operations

GILLETTE, Wyo.— May 14, 2019— Cloud Peak Energy Inc. (OTC: CLDP) (“Cloud Peak Energy” or the “Company”), the only pure-play Powder River Basin (“PRB”) coal company, announced today that the Company has received interim approvals from the U.S. Bankruptcy Court for the District of Delaware for all the “First Day” motions related to the voluntary Chapter 11 petitions filed on May 10, 2019.

Colin Marshall, President and Chief Executive Officer of Cloud Peak Energy, commented, “We are pleased to have received interim approval of our First Day motions, which will allow us to continue operating as normal as we continue the sale process for all of Cloud Peak’s assets. As we move through this process, we remain focused on safely and efficiently meeting our customer commitments. I would like to thank our employees, customers and business partners for their continued support.”

The Court granted Cloud Peak Energy interim approval to access $10 million of up to $35 million in debtor-in-possession (“DIP”) financing. The $35 million DIP financing, combined with the Company’s cash on hand and funds generated from ongoing operations, is expected to provide sufficient liquidity for the Company to continue operating in the ordinary course during the sale process. In addition, Cloud Peak Energy received Court approval to, among other things, continue payment of employee wages, salaries and benefits without interruption, and to pay vendors, suppliers and other providers essential to the Company’s business in full for goods and services provided after the filing date. The Company also received approval to continue entering into and fulfilling orders under sales contracts with customers in the ordinary course of business.

Additional Information

Additional information is available at Cloud Peak Energy’s restructuring website at https://cloudpeakenergy.com/restructuring-information. Court filings and information about the claims process are available at https://cases.primeclerk.com/cloudpeakenergy/, by calling the Company’s claims agent, Prime Clerk LLC, toll-free at 844-217-3067 or local at 347-761-3264 or emailing cloudpeakinfo@primeclerk.com.

Vinson & Elkins LLP is serving as legal advisor, Centerview Partners LLC is serving as investment banker and FTI Consulting, Inc. is serving as financial advisor to Cloud Peak Energy.

About Cloud Peak Energy®

Cloud Peak Energy Inc. (OTC:CLDP) is headquartered in Wyoming and is the only pure-play Powder River Basin coal company. As one of the safest coal producers in the nation, Cloud Peak Energy mines low sulfur, subbituminous coal and provides logistics supply services. The Company owns and operates three surface coal mines in the PRB, the lowest cost major coal producing region in the nation. The Antelope and Cordero Rojo mines are located in Wyoming and the Spring Creek Mine is located in Montana. In 2018, Cloud Peak Energy sold approximately 50 million tons from its three mines to customers located throughout the U.S. and around the world. Cloud Peak Energy also owns rights to substantial undeveloped coal and complementary surface assets in the Northern PRB, further building the Company’s long-term position to serve Asian export and domestic customers. With approximately 1,300 total employees, the Company is widely recognized for its exemplary performance in its safety and

environmental programs. Cloud Peak Energy is a sustainable fuel supplier for approximately two percent of the nation’s electricity.

Cautionary Note Regarding Forward Looking Statements

This release contains “forward-looking statements” within the meaning of the safe harbor provisions of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements are not statements of historical facts and often contain words such as “may,” “will,” “expect,” “believe,” “anticipate,” “plan,” “estimate,” “seek,” “could,” “should,” “intend,” “potential,” or words of similar meaning. Forward-looking statements are based on management’s current expectations, beliefs, assumptions and estimates regarding our company, industry, economic conditions, government regulations and energy policies and other factors. Forward-looking statements may include, for example, statements regarding the Board of Directors’ strategic evaluation process, our operational and financial priorities, our responses to the structural changes in the U.S. coal industry, our efforts to position our company for future growth opportunities, and other statements regarding our plans, strategies, prospects and expectations concerning our business, operating results, financial condition, liquidity and other matters that do not relate strictly to historical facts. These statements are subject to significant risks, uncertainties, and assumptions that are difficult to predict and could cause actual results to differ materially and adversely from those expressed or implied in the forward-looking statements, including risks and uncertainties regarding our ability to continue as a going concern, our ability to successfully complete a sale process under Chapter 11; potential adverse effects of the Chapter 11 cases on our liquidity and results of operations; our ability to obtain timely approval by the United States Bankruptcy Court for the District of Delaware (the “Court”) with respect to the motions filed in the Chapter 11 cases; objections to our sale process or other pleadings filed that could protract the Chapter 11 cases; employee attrition and our ability to retain senior management and other key personnel due to the distractions and uncertainties, including our ability to provide adequate compensation and benefits during the Chapter 11 cases; our ability to comply with the restrictions imposed by our Accounts Receivable Securitization Program (the “A/R Securitization Program”), the DIP financing and other financing arrangements; our ability to maintain relationships with suppliers, customers, employees and other third parties and regulatory authorities as a result of the Chapter 11 filing; the effects of the bankruptcy petitions on our company and on the interests of various constituents, including holders of our common stock; the Court’s rulings in the Chapter 11 cases, and the outcome of the Chapter 11 cases generally; the length of time that we will operate under Chapter 11 protection and the continued availability of operating capital during the pendency of the proceedings; risks associated with third party motions in the Chapter 11 cases, which may interfere with our ability to consummate a sale; and increased administrative and legal costs related to the Chapter 11 process and other litigation and inherent risks involved in a bankruptcy process. Forward-looking statements are also subject to the risk factors and cautionary language described from time to time in the reports and registration statements we file with the Securities and Exchange Commission, including those in Item 1A - Risk Factors in our most recent Form 10-K and any updates thereto in our Forms 10-Q and current reports on Form 8-K. Additional factors, events, or uncertainties that may emerge from time to time, or those that we currently deem to be immaterial, could cause our actual results to differ, and it is not possible for us to predict all of them. We make forward-looking statements based on currently available information, and we assume no obligation to, and expressly disclaim any obligation to, update or revise publicly any forward-looking statements made in this release, whether as a result of new information, future events or otherwise, except as required by law.

Contacts

Cloud Peak Energy Inc.

(720) 566-2932

Investor Relations

/

Meaghan Repko / Andrew Squire

Joele Frank, Wilkinson Brimmer Katcher
(212) 355-4449