SUPPLEMENT NO. 5 (this “Supplement”) dated as of May 21, 2018, to the Guaranty and Collateral Agreement, dated as of December 16, 2014 (as amended, amended and restated, waived, supplemented or otherwise modified from time to time, the “Guaranty and...

Exhibit 10.2

SUPPLEMENT NO. 5 (this “Supplement”) dated as of May 21, 2018, to the Guaranty and Collateral Agreement, dated as of December 16, 2014 (as amended, amended and restated, waived, supplemented or otherwise modified from time to time, the “Guaranty and Collateral Agreement”), among ▇▇▇▇▇▇▇▇▇▇▇▇ COAL COMPANY, a Delaware corporation (the “Borrower”), each other subsidiary of the Borrower from time to time party thereto (each such subsidiary individually a “Subsidiary Guarantor” and collectively, the “Subsidiary Guarantors”; the Subsidiary Guarantors and the Borrower are referred to collectively herein as the “Grantors”) and WILMINGTON SAVINGS FUND SOCIETY, FSB, as collateral agent (together with any successor collateral agent, the “Collateral Agent”).

Reference is made to the Credit Agreement dated as of December 16, 2014 (as amended, amended and restated, waived, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the lenders from time to time party thereto, and Canadian Imperial Bank of Commerce, as administrative agent.

Capitalized terms used in this Agreement and not otherwise defined in this Agreement shall have the meanings assigned to such terms in the Credit Agreement and the Guaranty and Collateral Agreement referred to therein.

The Grantors have entered into the Guaranty and Collateral Agreement in order to induce the Lenders to make Loans as contemplated in the Credit Agreement. Section 7.14 of the Guaranty and Collateral Agreement provides that additional Subsidiaries of the Borrower may become Subsidiary Guarantors under the Guaranty and Collateral Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiaries (the “New Subsidiaries” and each a “New Subsidiary”) are each executing this Supplement in accordance with the requirements of the Credit Agreement to become a Subsidiary Guarantor under the Guaranty and Collateral Agreement in order to induce the Lenders to make additional Loans and as consideration for Loans previously made.

Accordingly, the Collateral Agent and the New Subsidiary agree as follows:

In accordance with Section 7.14 of the Guaranty and Collateral Agreement, the New Subsidiary by its signature below becomes a Subsidiary Guarantor and a Grantor under the Guaranty and Collateral Agreement with the same force and effect as if originally named therein as a Subsidiary Guarantor and a Grantor and the New Subsidiary hereby (a) agrees to all the terms and provisions of the Guaranty and Collateral Agreement applicable to it as a Subsidiary Guarantor and Grantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor and Subsidiary Guarantor thereunder are true and correct in all material respects on and as of the date hereof (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date). In furtherance of the foregoing, the New Subsidiary, as security for the payment and performance in full of the Obligations (as defined in the Guaranty and Collateral Agreement), does hereby create and grant to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Creditors, their successors and assigns, a security interest in and lien on all the New Subsidiary’s right, title and interest in and to the Collateral (as defined in the Guaranty and Collateral Agreement) of the New Subsidiary. Each reference to a “Subsidiary Guarantor” or “Grantor” in the Guaranty and Collateral Agreement shall be deemed to include the New Subsidiary. The Guaranty and Collateral Agreement is hereby incorporated in this Agreement by reference.

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The New Subsidiary represents and warrants to the Collateral Agent and the other Secured Creditors that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally any by principles of equity.

This Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Collateral Agent shall have received a counterpart of this Supplement that bears the signature of the New Subsidiary and the Collateral Agent has executed a counterpart hereof. Delivery of an executed signature page to this Supplement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Supplement.

The New Subsidiary hereby represents and warrants that set forth under its signature hereto is, as of the date hereof, (i) the true and correct legal name of the New Subsidiary, (ii) its jurisdiction of formation, (iii) its Federal Taxpayer Identification Number or its organizational identification number (if any) and (iv) the location of its chief executive office. The New Subsidiary hereby further represents and warrants that, as of the date hereof, Schedule I hereto accurately sets forth all information which would have been required pursuant to the Schedules to the Guaranty and Collateral Agreement had the New Subsidiary been a Grantor on the date of the execution and delivery of the Guaranty and Collateral Agreement (it being understood and agreed, however, that the information so furnished by the New Subsidiary is accurate as of the date of this Supplement rather than the date of the Guaranty and Collateral Agreement).

Except as expressly supplemented hereby, the Guaranty and Collateral Agreement shall remain in full force and effect.

THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Any provision of this Supplement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof and in the Guaranty and Collateral Agreement; the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. 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.

All communications and notices hereunder shall be in writing and given as provided in Section 7.01 of the Guaranty and Collateral Agreement.

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The New Subsidiary agrees to reimburse the Collateral Agent for its reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Collateral Agent.

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The New Subsidiaries and the Collateral Agent have duly executed this Supplement No. 5 to the Notes Collateral Agreement as of the day and year first above written.

 

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PLEDGED SECURITIES

Pledged Stock

 

Name of Pledgor

Name, Jurisdiction of Formation and Type of Entity of Pledged Subsidiary

Class or Type of Pledged Interest

Total Amount of Class or Type of Pledged Interests Authorized

Total Amount of Class or Type Outstanding

Total Amount Pledged

Certificate Number (if applicable)

▇▇▇▇▇▇▇▇▇▇▇▇ Coal Company

▇▇▇▇▇▇▇▇▇▇▇▇ San ▇▇▇▇ Holdings, Inc.; Delaware; corporation

Common

100

100

100%

Uncertificated

▇▇▇▇▇▇▇▇▇▇▇▇ San ▇▇▇▇ Holdings, Inc.

▇▇▇▇▇▇▇▇▇▇▇▇ San ▇▇▇▇, LLC; Delaware; limited liability company

Membership Units

N/A

N/A

100%

Uncertificated

▇▇▇▇▇▇▇▇▇▇▇▇ San ▇▇▇▇, LLC

San ▇▇▇▇ Coal Company; Delaware; corporation

Common

250

250

100%

4

▇▇▇▇▇▇▇▇▇▇▇▇ San ▇▇▇▇, LLC

San ▇▇▇▇ Transportation Company; Delaware; corporation

Common

200

200

100%

3

▇▇▇▇▇▇▇▇▇▇▇▇ Energy Services New York, Inc.

Basin Resources, Inc., Delaware; corporation

Common

100

100

100%

1

▇▇▇▇▇▇▇▇▇▇▇▇ Coal Company

▇▇▇▇▇▇▇▇▇▇▇▇ Canada, LLC; Delaware; limited liability company

Sole Member

N/A

N/A

100%

Uncertificated

▇▇▇▇▇▇▇▇▇▇▇▇ Coal Company

▇▇▇▇▇▇▇▇▇▇▇▇ Power, Inc.; Delaware; corporation

Common

1,000

1,000

100%

1

▇▇▇▇▇▇▇▇▇▇▇▇ Coal Company

▇▇▇▇▇▇▇▇▇▇▇▇ Energy Services, Inc.; Delaware; corporation

Common

100

100

100%

1

WRI Partners, Inc.

Absaloka Coal, LLC

Sole Member

N/A

N/A

100%

Uncertificated

 

 

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GRANTOR LEGAL NAME

 

COMPANY NAME		F/K/A		DATE OF NAME CHANGE		TRADE NAMES
▇▇▇▇▇▇▇▇▇▇▇▇ San ▇▇▇▇ Holdings, Inc.		WLB Escrow Corporation		January 26, 2016		None
▇▇▇▇▇▇▇▇▇▇▇▇ San ▇▇▇▇, LLC		N/A		N/A		None
San ▇▇▇▇ Coal Company		N/A		N/A		None
San ▇▇▇▇ Transportation Company		N/A		N/A		None
Basin Resources, Inc.		▇/▇		▇/▇		▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC		N/A		N/A		None
▇▇▇▇▇▇▇▇▇▇▇▇ Power, Inc.		N/A		N/A		None
▇▇▇▇▇▇▇▇▇▇▇▇ Energy Services, Inc.		N/A		N/A		None
▇▇▇▇▇▇▇▇▇▇▇▇ Canadian Investments L.P.		N/A		N/A		None
Absaloka Coal, LLC		N/A		N/A		None

 

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GRANTOR ORGANIZATIONAL INFORMATION

 

COMPANY NAME		JURISDICTION		TYPE		ORG ID		OFFICE ADDRESS		TAX PAYER ID
▇▇▇▇▇▇▇▇▇▇▇▇ San ▇▇▇▇ Holdings, Inc.		Delaware		Corporation		05857903		300 Road ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇		▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ San ▇▇▇▇, LLC		Delaware		Limited Liability Company		5948312		300 Road ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇		▇▇-▇▇▇▇▇▇▇
San ▇▇▇▇ Transportation Company		Delaware		Corporation		0928266		300 Road ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇		▇▇-▇▇▇▇▇▇▇
San ▇▇▇▇ Coal Company		Delaware		Corporation		0867351		300 Road ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇		▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ Power, Inc.		Delaware		Corporation		03357469		▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇		▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ Energy Services, Inc.		Delaware		Corporation		05371511		▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇		▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ Canada LLC		Delaware		Limited Liability Company		5509777		▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇		▇▇-▇▇▇▇▇▇▇
Basin Resources, Inc.		Colorado		Corporation		19871331143		▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇		▇▇-▇▇▇▇▇▇▇
Absaloka Coal, LLC		Delaware		Limited Liability Company		4554164		▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇		▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ Canadian Investments, L.P.		Alberta		Corporation		2020598864		▇▇▇▇, ▇▇▇▇▇-▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇		891271934

 

 

I-3

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INTELLECTUAL PROPERTY

 

Title		Jurisdiction		Application Number		Patent/Publication Number
Drill Bit with Radially Expandable Cutter, and Method of Using Same		United States		11/758,913		7,686,103
Drill Bit		PCT International		PCT/US2008/0654 73		WO2008154196
Drill Bit		Australia		AU20080262084		AU2008262084
Drill Bit		Brazil		BR2008PI12780		BRPI0812780
Drill Bit		China		CN20088102345		CN101952540
Drill Bit		Germany		DE112008001519		DE20081101519
Drill Tip		Poland		PL20080390542		PL390542
Rotary Drilling Bit and Method to Create Helical Groove in Blast Hole Arranged in Bed		Russia		RU20090149654		RU2009149654
Drill Bit		Ukraine		UA20090013759		UA97983
Drill Bit		South Africa		ZA20090008569		ZA200908569
Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same		PCT International		PCT/US2008/0717 88		WO2009018458
Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same		Australia		AU20080282110		AU2008282110
Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same		Brazil		BR2008PI15066		BRPI0815066

 

I-4

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Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same		China		CN20088108925		CN101809250
Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same		Germany		DE20081102078		DE112008002078
Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same		Poland		PL20080390417		PL390417
Method to Increase Resistance to Gas Flow in Shaft (Versions)		Russia		RU20100107179		RU2010107179
Method for Increasing Resistance to Gas Flow in Mine (Variants)		Ukraine		UA20100002184		UA99732
Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same		South Africa		ZA20100000402		ZA201000402

 

 

I-5

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DEPOSIT AND SECURITIES ACCOUNTS

(see attached)

 

I-6