CREDIT AGREEMENT dated as of October 22, 2010 among SIGNAL PEAK ENERGY, LLC, a Delaware limited liability company, and GLOBAL RAIL GROUP, LLC, a Delaware limited liability company, as Borrowers, and THE LENDERS PARTY HERETO, and COBANK, ACB and...

Exhibit 10.3

[EXECUTION COPY]

CREDIT AGREEMENT

dated as of October 22, 2010

among

SIGNAL PEAK ENERGY, LLC,
a Delaware limited liability company,

and

GLOBAL RAIL GROUP, LLC,
a Delaware limited liability company,
as Borrowers,

and

THE LENDERS PARTY HERETO,

and

COBANK, ACB and SOVEREIGN BANK,
as Co-Syndication Agents,

and

BANCO BILBAO VIZCAYA ARGENTARIA, S.A., NEW YORK BRANCH,
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK and
U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agents,

and

UNION BANK, N.A.,
as Administrative Agent and Collateral Agent

UNION BANK, N.A.,
as Sole Lead Arranger and Sole Bookrunner

TABLE OF CONTENTS


	Page

ARTICLE I Definitions

SECTION 1.01. Defined Terms		1
SECTION 1.02. Classification of Loans and Borrowings		16
SECTION 1.03. Terms Generally		16
SECTION 1.04. Accounting Terms; GAAP		16
SECTION 1.05. Pro Forma Calculations		17

ARTICLE II The Credits

SECTION 2.01. Commitments		17
SECTION 2.02. Loans and Borrowings		17
SECTION 2.03. Request for Initial Borrowing		18
SECTION 2.04. Funding of Initial Borrowing		18
SECTION 2.05. Interest Elections		19
SECTION 2.06. Termination of Commitments		20
SECTION 2.07. Repayment of Loans; Evidence of Debt		20
SECTION 2.08. Prepayment of Loans		21
SECTION 2.09. Fees		22
SECTION 2.10. Interest		22
SECTION 2.11. Alternate Rate of Interest		23
SECTION 2.12. Increased Costs		23
SECTION 2.13. Break Funding Payments		24
SECTION 2.14. Taxes		25
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Set-offs		27
SECTION 2.16. Mitigation Obligations; Replacement of Lenders		28
SECTION 2.17. Illegality		29
SECTION 2.18 Joint and Several Obligations; Subrogation Rights; Savings Clause		29

ARTICLE III Representations and Warranties

SECTION 3.01. Organization; Powers		31
SECTION 3.02. Authorization; Enforceability		31
SECTION 3.03. Governmental Approvals; No Conflicts		31
SECTION 3.04. Financial Condition; No Material Adverse Change		32
SECTION 3.05. Title to Properties, Etc		32
SECTION 3.06. Litigation		33
SECTION 3.07. Compliance with Laws and Agreements		33
SECTION 3.08. Margin Regulations		33
SECTION 3.09. Regulatory Status		33
SECTION 3.10. Taxes		34
SECTION 3.11. ERISA		34
SECTION 3.12. Security Documents		34
SECTION 3.13. Disclosure		35

TABLE OF CONTENTS
(Continued)


	Page

SECTION 3.14. Solvency		35
SECTION 3.15. Labor Matters		35
SECTION 3.16. Anti-Terrorism Laws		35
SECTION 3.17. No Subsidiaries		36
SECTION 3.18. Environmental Matters		36
SECTION 3.19. Insurance		37
SECTION 3.20. Hedging Agreements		37
SECTION 3.21. No Default or Event of Default		37
SECTION 3.22. Use of Proceeds		37

ARTICLE IV Conditions Precedent

SECTION 4.01. Effective Date		38

ARTICLE V Affirmative Covenants

SECTION 5.01. Financial Statements and Other Information		40
SECTION 5.02. Notices of Material Events		41
SECTION 5.03. Existence; Conduct of Business		42
SECTION 5.04. Payment of Obligations		42
SECTION 5.05. Maintenance of Properties; Insurance		42
SECTION 5.06. Books and Records; Inspection Rights		43
SECTION 5.07. Compliance with Laws		43
SECTION 5.08. Use of Proceeds		43
SECTION 5.09. Environmental Matters		43
SECTION 5.10. Further Assurances		44
SECTION 5.11. Subsidiaries		44

ARTICLE VI Negative Covenants

SECTION 6.01. Indebtedness		44
SECTION 6.02. Liens		45
SECTION 6.03. Fundamental Changes		46
SECTION 6.04. Investments, Loans, Advances and Acquisitions		46
SECTION 6.05. Asset Sales		46
SECTION 6.06. Sale and Leaseback Transactions		47
SECTION 6.07. Limitation on Hedge Agreements		47
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness		47
SECTION 6.09. Transactions with Affiliates		48
SECTION 6.10. Restrictive Agreements		48
SECTION 6.11. Accounting Changes		48

TABLE OF CONTENTS
(Continued)


	Page

ARTICLE VII Events of Default		49

ARTICLE VIII The Agents		51

ARTICLE IX Miscellaneous

SECTION 9.01. Notices		54
SECTION 9.02. Waivers; Amendments		55
SECTION 9.03. Expenses; Indemnity; Damage Waiver		56
SECTION 9.04. Successors and Assigns		57
SECTION 9.05. Survival		60
SECTION 9.06. Counterparts; Integration; Effectiveness		60
SECTION 9.07. Severability		60
SECTION 9.08. Right of Setoff		61
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process		61
SECTION 9.10. WAIVER OF JURY TRIAL		62
SECTION 9.11. Headings		62
SECTION 9.12. Confidentiality		62
SECTION 9.13. Interest Rate Limitation		63
SECTION 9.14 Patriot Act Notice		63

SCHEDULES:

Schedule 2.01 — Commitments
Schedule 3.04 — Sales and Acquisitions
Schedule 3.05 — Properties
Schedule 3.06 — Litigation
Schedule 3.07 — Compliance with Laws
Schedule 3.19 — Insurance
Schedule 3.20 — Hedging Agreements
Schedule 6.02 — Existing Liens

EXHIBITS:

Exhibit A — Form of Assignment and Assumption
Exhibit B — Form of Pledge Agreement
Exhibit C — Form of Note
Exhibit D — Form of Guaranty
Exhibit E — Form of Borrowing Request

iii

CREDIT AGREEMENT

This CREDIT AGREEMENT, dated as of October 22, 2010, among SIGNAL PEAK ENERGY, LLC, GLOBAL RAIL GROUP, LLC, the LENDERS party hereto and UNION BANK, N.A., as Administrative Agent and as Collateral Agent.

The parties hereto agree as follows:

ARTICLE I
Definitions

SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

“ABR Default Rate” has the meaning assigned to such term in Section 2.10(c).

“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

“Administrative Agent” means Union Bank, in its capacity as administrative agent for the Lenders.

“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

“Affiliate” means, 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.

“Agents” means, collectively, the Administrative Agent and the Collateral Agent.

“Agreement” means this Credit Agreement, dated as of October 22, 2010, by and among the Borrowers, the Lenders party hereto, the Administrative Agent and the Collateral Agent.

“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Reference 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 then-applicable Adjusted LIBO Rate for a Eurodollar Loan with an Interest Period of one month (assuming that the first day of such Interest Period was the first day of the calendar month in which such day occurs) plus 1% per annum. Any change in the Alternate Base Rate due to a change in the Reference Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Reference Rate or the Federal Funds Effective Rate, respectively.

“Anti-Terrorism Laws” has the meaning assigned to such term in Section 3.16(a).

“Applicable Percentage” means with respect to any Lender, the percentage of the total Commitments represented by such Lender’s Commitment. If the Commitments have terminated, the Applicable Percentage of each Lender shall equal the ratio of (i) the aggregate outstanding principal amount of all Loans made by such Lender to (ii) the aggregate outstanding principal amount of all Loans (or, if the Loans have been repaid in full, the Applicable Percentages shall equal the Applicable Percentages in effect immediately prior to such repayment).

“Applicable Margin” means, with respect to any Eurodollar Loan or ABR Loan, as the case may be, the applicable per annum percentage set forth at the appropriate intersection in the table shown below, based on the Rating as in effect from time to time:


				▇▇▇▇▇ ▇			▇▇▇▇▇ ▇
	▇▇▇▇▇ ▇			▇▇▇▇▇▇▇ lower than Level 1			Ratings lower than BBB-
	Ratings at least BBB by			but at least BBB- by S&P			by S&P and Baa3 by
BASIS FOR PRICING	S&P or Baa2 by ▇▇▇▇▇’▇.			or Baa3 by ▇▇▇▇▇’▇.			▇▇▇▇▇’▇.
Applicable Margin for Eurodollar Loans		2.00	%		2.25	%		3.00	%
Applicable Margin for ABR Loans		1.00	%		1.25	%		2.00	%

For purposes of the foregoing, (i) if there is a difference of one level in Ratings of S&P and ▇▇▇▇▇’▇ and the higher of such Ratings falls in Level 1 or Level 2, then the higher Rating will be used to determine the Applicable Margin, and (ii) if there is a difference of more than one level in Ratings of S&P and ▇▇▇▇▇’▇, the Rating that is one level above the lower of such Ratings will be used to determine the Applicable Margin, unless the lower of such Ratings falls in Level 3, in which case the lower of such Ratings will be used to determine the Applicable Margin. If there is only one Rating, such Rating shall be used to determine the Applicable Margin.

“Approved Fund” means any Fund that is administered or managed by (a) a Lender or (b) an Affiliate of a Lender.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

“Board” means the Board of Governors of the Federal Reserve System of the United States of America.

“Boich” means ▇▇▇▇▇ Companies, LLC, a Delaware limited liability company.

“Borrowers” means, collectively, SPE and RailCo, and each individually, a “Borrower”.

“Borrowing” means Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

“Borrowing Request” means a request by the Borrowers for the Initial Borrowing in accordance with Section 2.03 and substantially in the form of Exhibit E.

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in Los Angeles, California or New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

“Call Option” has the meaning assigned thereto in the Guaranty by and between FirstEnergy and the Administrative Agent.

“Capital Lease” means any lease of real or personal property, the obligations under which lease to pay rent or other amounts are required to be capitalized under GAAP.

“Capital Lease Obligations” of any Person means 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, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority, to the extent that such request, guideline or directive sets forth any new or modified policy, interpretation, request, guideline or directive as compared to any applicable requests, guidelines or directives made or issued by such Governmental Authority on or before the date of this Agreement.

“Charges” has the meaning assigned to such term in Section 9.13.

“Closing Distribution” has the meaning assigned to such term in Section 5.08.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Collateral” means all “Collateral”, as defined in any applicable Security Document.

“Collateral Agent” means Union Bank, in its capacity as collateral agent for the Lenders.

“Commitment” means, with respect to each Lender, the commitment of such Lender to make Loans hereunder, expressed as an amount representing the maximum aggregate permitted amount of such Lender’s Exposure hereunder, as set forth on Schedule 2.01. The aggregate amount of the Lenders’ Commitments is $350,000,000.

“Compliance Certificate” has the meaning assigned to such term in Section 5.01(c).

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

“dollars” or “$” refers to lawful money of the United States of America.

“Effective Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).

“Environmental Laws” means any and all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material, or to human health and safety, including, without limitation, the Clean Air Act, as amended, the Comprehensive Environmental, Response, Compensation, and Liability Act of 1980 (“CERCLA”), as amended, the Federal Water Pollution Control Act, as amended, the Occupational Safety and Health Act of 1970, as amended, the Resource Conservation and Recovery Act of 1976, as amended, the Safe Drinking Water Act, as amended, the Toxic Substances Control Act, as amended, the Superfund Amendments and Reauthorization Act of 1986, as amended, the Hazardous Materials Transportation Act, as amended, and other environmental conservation or protection laws.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with either Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 and 303 of ERISA and Section 412 and 430 of the Code, is treated as a single employer under Section 414 of the Code.

“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) a determination that any Plan is in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by either Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by either Borrower or any ERISA Affiliate from the PBGC of any notice of its intent to institute proceedings to terminate any Plan or to appoint a trustee to administer any Plan under Section 4042 of ERISA or the providing of notice by a plan administrator of the intent to terminate any Plan under Section 4041 of ERISA; (f) the incurrence by either Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by either Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from either Borrower 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, insolvent or in reorganization, within the meaning of Title IV of ERISA.

“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

“Event of Default” has the meaning assigned to such term in Article VII.

“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of either Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located or in which such Taxes would not be imposed in the absence of activities by such Lender in such jurisdiction unrelated to the transactions contemplated by the Loan Documents, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which such recipient is located, (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrowers under Section 2.16(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender, (d) any withholding Taxes attributable to a Lender’s or the Administrative Agent’s failure or inability to comply with Section 2.14(d), or to the extent the documentation provided pursuant to such Section does not establish a complete exemption from withholding Taxes, other than, in each case described in (c) or (d), as a result of a Change in Law that occurred after the date that such Lender or the Administrative Agent became a party to this Agreement and that (i) rendered such Lender or the Administrative Agent no longer legally entitled to deliver the form or forms required pursuant to such Section, (ii) rendered such Lender or the Administrative Agent ineligible for a complete exemption from U.S. federal withholding or backup withholding Tax, or (iii) rendered the information or the certifications made in such form or forms untrue or inaccurate in a material respect.

“Executive Order” has the meaning assigned to such term in Section 3.16(a).

“Exposure” means, with respect to any Lender at any time, the sum of the aggregate outstanding principal amount of such Lender’s Loans at such time.

“Extraction Charge Agreement” means that certain Extraction Charge Agreement, dated July 16, 2008, between SPE and WMB Marketing Ventures, LLC.

“Fair Value” means, with respect to any Property owned by either Borrower, the fair market value thereof as determined from time to time by the members (or the Board of Directors or any corresponding body, or a duly constituted committee thereof) of such Borrower in good faith.

“Federal Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as amended and any successor statute thereto.

“Federal Funds Effective Rate” means, for any day, the weighted average 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 that is a Business Day, the average of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“Fee Letter” has the meaning assigned to that term in Section 2.09(a).

“FE Indebtedness” has the meaning assigned to the term “Indebtedness” set forth in Section 1.01 of the FirstEnergy Credit Agreement as in effect on the date hereof (and as such term may hereafter be amended from time to time, but only to the extent that the effect of any such amendment on the Loan Documents has been consented to in accordance with Section 9.02).

“Final Maturity Date” means the second anniversary of the Effective Date.

“Financial Officer” means, with respect to either Borrower, the chief financial officer, principal accounting officer, treasurer or controller of such Borrower.

“FirstEnergy” means FirstEnergy Corp., an Ohio corporation.

“FirstEnergy Credit Agreement” has the meaning assigned to that term in the Guaranty.

“FirstEnergy Ventures” means FirstEnergy Ventures Corp., an Ohio corporation.

“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrowers are resident for tax purposes. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“Fund” means any Person (other than (i) a natural person and (ii) a hedge fund) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

“GAAP” means generally accepted accounting principles in the United States of America.

“Global Mining Group” means Global Mining Group, LLC, a Delaware limited liability company.

“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, the European Central Bank or NAFTA Binational Panel).

“Granting Lender” has the meaning assigned to such term in Section 9.04(h).

“Guarantee” of or by any Person (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 (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. The term “Guarantee” as a verb has a corresponding meaning.

“Guarantors” means, collectively, FirstEnergy, Global Mining Group, WMB and WMB II.

“Guaranty” means the Guaranty Agreement in the form of Exhibit D, to be executed and delivered by each Guarantor.

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, and infectious or medical wastes, regulated pursuant to any Environmental Law.

“Hedging Agreement” means any commodity, interest rate or currency swap, cap, floor, collar, forward agreement or other exchange or protection agreements or any option with respect to any such transaction (including, without limitation, commodity price swap agreements, forward agreements or contracts of sale which provide for prepayment for deferred shipment or delivery of oil, gas or other commodities).

“Indebtedness” means, for any Person, at any date of determination, without duplication, all (i) secured or unsecured indebtedness of such Person for borrowed money or obligations of such Person for the deferred purchase price of property or services or obligations of such Person evidenced by notes, bonds, debentures or other instruments, (ii) Capital Lease Obligations of such Person, (iii) obligations secured by any Lien existing on any Property owned or held by such Person, whether or not such Person has assumed or become liable for the obligations secured thereby, (iv) obligations of such Person in respect of letters of credit, bankers’ acceptances, surety bonds, performance bonds and similar extensions of credit and obligations (other than any such obligation in support of other Indebtedness already included in this definition), including, without duplication of the foregoing, reimbursement obligations of such Person in respect thereof, (v) obligations of such Person under any Hedging Agreements (the amount of any such obligation to be the amount that is or would be payable upon settlement, liquidation, termination or acceleration thereof, giving effect to any netting agreements), and (vi) obligations of such Person under Guarantees in respect of, and obligations of such Person otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (i) through (v) above. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

“Indemnified Taxes” means Taxes other than Excluded Taxes.

“Indemnitee” has the meaning assigned to such term in Section 9.03(b).

“Information” has the meaning assigned to such term in Section 9.12.

“Initial Borrowing” has the meaning assigned to such term in Section 2.02(a).

“Interest Election Request” means a request by the Borrowers to convert or continue a Borrowing in accordance with Section 2.05.

“Interest Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December, and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.

“Interest Period” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing (which initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing) and ending on the corresponding day of the week that is one, two or three weeks thereafter or on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Borrowers may elect; provided, that (i) if any such 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 and (ii) any such Interest Period of one, two, three or six months that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.

“Lead Arranger” means Union Bank, as Sole Lead Arranger and Sole Bookrunner for the credit facilities established by this Agreement.

“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption in accordance with Section 9.04, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.

“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m., London time, on the date that is two Business Days prior to the commencement of such Interest Period by reference to the British Bankers’ Association Interest Settlement Rates for deposits in dollars (as set forth by the Bloomberg Information Service or any successor thereto or any other service selected by the Administrative Agent which has been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such rates) 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” with respect to such Eurodollar Borrowing for such Interest Period shall be the rate per annum at which dollar deposits for loans of similar size to such Eurodollar Borrowing and for a maturity comparable to such Interest Period would be offered to the Administrative Agent in the London interbank market at approximately 12:00 noon, London time, on the date that is two Business Days prior to the beginning of such Interest Period.

“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of 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, any purchase option, call or similar right of a third party with respect to such securities.

“Loan Documents” means this Agreement, each Note, the Fee Letter, each Security Document, the Guaranty, each Specified Hedge Agreement, and all other agreements, instruments and documents now or hereafter executed and/or delivered pursuant hereto or thereto.

“Loan Parties” means the Borrowers and the Guarantors.

“Loans” means the loans made by the Lenders to the Borrowers pursuant to this Agreement.

“MarketCo” means Global Coal Sales Group, LLC, a Delaware limited liability company.

“Material Adverse Effect” means a material adverse effect on (a) the financial condition, assets, operations or business of the Loan Parties taken as a whole, (b) the ability of the Loan Parties to perform any of their material obligations under any Loan Document or (c) the rights of or benefits available to any Agent or the Lenders under any Loan Document.

“Material Indebtedness” means (a) Indebtedness (other than the Loans) of any Loan Party (other than FirstEnergy) in an aggregate principal amount exceeding $15,000,000 and (b) FE Indebtedness of FirstEnergy or any of its Significant Subsidiaries in an aggregate principal amount exceeding $50,000,000.

“Maximum Rate” has the meaning assigned to such term in Section 9.13.

“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc. or any successor thereto.

“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

“Notes” means, collectively, the promissory notes delivered pursuant to Section 2.07(e), together with any and all renewals, extensions for any period, increases, rearrangements, substitutions or modifications thereof.

“Obligations” means (a) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (b) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Borrowers under this Agreement and the other Loan Documents.

“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 under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.

“Participant” has the meaning assigned to such term in Section 9.04(e).

“Patriot Act” has the meaning assigned to such term in Section 9.14.

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

“Permitted Encumbrances” means:

(a) Liens imposed by law for taxes, assessments or other governmental charges which are not yet due and payable or are being contested in compliance with Section 5.04;

(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.04;

(c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;

(d) deposits to secure the performance of bids, trade contracts, leases (other than Capital Leases), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business (but not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property);

(e) judgment liens in respect of judgments that do not constitute an Event of Default under clause (j) of Article VII;

(f) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to, and not interfering with, the ordinary conduct of the business of the Borrowers, provided that such Liens do not, in the aggregate, materially detract from the value of the Property subject to any such leases, subleases, easements, rights-of-way, restrictions or other similar charges or encumbrances;

(g) Liens arising by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution;

(h) Liens existing on the Effective Date and described in Schedule 6.02; and

(i) Liens created pursuant to the Security Documents.

“Permitted Investments” means:

(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within 12 months from the date of acquisition thereof;

(b) investments in commercial paper maturing within 12 months from the date of acquisition thereof and having, at such date of acquisition, a credit rating of at least A-1 or P-1 from S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service);

(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within 12 months from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;

(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a), (b) or (c) above and entered into with a financial institution satisfying the criteria described in clause (c) above or a securities dealer of nationally recognized standing; and

(e) shares of investment companies that are registered under the Investment Company Act of 1940 and invest solely in one or more of the types of securities described in clauses (a) through (d) above.

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Sections 412 and 430 of the Code or Sections 302 and 303 of ERISA, and in respect of which either Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Pledge Agreement” means the Pledge and Security Agreement in the form of Exhibit B, to be executed and delivered by the Pledgors.

“Pledgors” means, collectively, FirstEnergy Ventures, WMB II and Global Mining Group.

“Property” shall mean any interest in any kind of property or asset, whether real, personal or mixed, moveable or immoveable, tangible or intangible, including without limitation cash, securities, accounts and contract rights.

“Qualified Counterparty” means, with respect to any Specified Hedge Agreement, any counterparty thereto that, at the time such Specified Hedge Agreement was entered into, was a Lender or an Affiliate of a Lender.

“RailCo” means Global Rail Group, LLC, a Delaware limited liability company.

“RailCo Credit Agreement” means that certain Credit Agreement, dated as of November 17, 2008, among RailCo, the lenders from time to time party thereto, and Union Bank (formerly known as Union Bank of California, N.A.), as administrative agent and collateral agent.

“Rating” means a rating issued by S&P and/or Moody’s with respect to FirstEnergy’s senior unsecured debt (without credit enhancement or a third person guarantee); provided that if there is no such rating, “Rating” shall mean the rating(s) one level below the rating assigned by S&P and/or Moody’s to FirstEnergy’s senior secured debt.

“Reference Rate” means the variable rate of interest per annum established by Union Bank from time to time as its “reference rate”. Such “reference rate” is set by Union Bank as a general reference rate of interest, taking into account such factors as Union Bank may deem appropriate, it being understood that many of Union Bank’s commercial or other loans are priced in relation to such rate, that it is not necessarily the lowest or best rate actually charged to any customer and that Union Bank may make various commercial or other loans at rates of interest having no relationship to such rate. For purposes of this Agreement, each change in the Reference Rate shall be effective as of the opening of business on the date announced as the effective date of any change in such “reference rate”.

“Register” has the meaning assigned to such term in Section 9.04(c).

“Regulation D” means Regulation D of the Board.

“Regulation U” means Regulation U of the Board.

“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, trustees, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

“Required Lenders” means, at any time, Lenders having Exposures and unused Commitments representing more than 50% of the sum of the total Exposures and unused Commitments at such time; provided that if there are only two Lenders, “Required Lenders” shall mean both such Lenders.

“Requirement of Law” means, as to any Person, the certificate of formation and limited liability company agreement or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.

“Responsible Officer” means, with respect to any Loan Party, the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of such Loan Party. Any document delivered hereunder or under any other Loan Document that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary limited liability company action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

“Restricted Payment” means (a) any payment or other distribution (whether in cash, securities or other Property) in respect of any Equity Interest in either Borrower (including any payment or other distribution to or on behalf of any member of either Borrower in respect of taxes paid or payable by such member), (b) any payments on account of the purchase, redemption, retirement or other acquisition of any Equity Interest in either Borrower, or any warrants or options therefor, whether in cash or in property or in obligations or securities, (c) principal, interest and other amounts required or permitted to be paid by either Borrower pursuant to the Subordinated Debt (including, without limitation, any prepayment of the Subordinated Debt) or (d) any payment of management fees, extraction fees (including any such fee payable under the Extraction Charge Agreement), royalties or such other payments of similar substance or effect by either Borrower to any of its Affiliates.

“S&P” means Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.

“Security Documents” means the Pledge Agreement and each of the other security agreements, pledges, mortgages, assignments (collateral or otherwise) and consents, if any, and each other security agreement or other instrument or document executed and delivered pursuant to any of the foregoing documents, in each case to secure any of the Obligations.

“Significant Subsidiaries” has the meaning assigned to such term in Section 1.01 of the FirstEnergy Credit Agreement as in effect on the date hereof (and as such term may hereafter be amended from time to time, but only to the extent that the effect of any such amendment on the Loan Documents has been consented to in accordance with Section 9.02).

“Solvent” means, with respect to any Person, as of any date of determination, that (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.

“SPC” has the meaning assigned to such term in Section 9.04(h).

“SPE” means Signal Peak Energy, LLC, a Delaware limited liability company.

“SPE Credit Agreement” means that certain Credit Agreement, dated as of November 17, 2008, among SPE, the lenders from time to time party thereto, and Union Bank (formerly known as Union Bank of California, N.A.), as administrative agent and collateral agent.

“Specified Hedge Agreement” means any Hedging Agreement entered into by either Borrower and any Qualified Counterparty.

“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“Subordinated Debt” has the meaning assigned to such term in Section 6.01(e).

“Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association 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, as well as any other corporation, limited liability company, partnership, association or other 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, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more Subsidiaries of the parent.

“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority (including any interest, penalties or additions to tax imposed by such Governmental Authority with respect thereto).

“Transactions” means the execution, delivery and performance by the Borrowers of this Agreement and the other Loan Documents, the borrowing of Loans and the use of the proceeds thereof.

“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.

“Union Bank” means Union Bank, N.A., a national banking association.

“Withdrawal Liability” means 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.

“WMB” means WMB Loan Ventures, LLC, a Delaware limited liability company.

“WMB II” means WMB Loan Ventures II, LLC, a Delaware limited liability company

SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan” or “ABR Loan”). Borrowings also may be classified and referred to by Type (e.g., a “Eurodollar Borrowing” or “ABR Borrowing”).

SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, and (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement.

SECTION 1.04. Accounting Terms; GAAP. 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 Borrowers notify the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (including the effects of the application or discontinuance of the application of accounting for the effects of regulation to all or any portion of either Borrower’s operations), or if the Administrative Agent notifies the Borrowers 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.

SECTION 1.05. Pro Forma Calculations. All pro forma calculations permitted or required to be made by the Borrowers pursuant to this Agreement shall (a) include only those adjustments that would be permitted or required by Regulation S-X under the Securities Act of 1933, as amended, and (b) be certified to by a Financial Officer of each Borrower as having been prepared in good faith based upon assumptions believed to be reasonable.

ARTICLE II
The Credits

SECTION 2.01. Commitments. Subject to the terms and conditions set forth in this Agreement, each Lender severally agrees to make Loans to the Borrowers in a single advance on the Effective Date in an aggregate principal amount up to but not exceeding the amount of such Lender’s Commitment. Amounts repaid or prepaid in respect of the Loans may not be reborrowed.

SECTION 2.02. Loans and Borrowings.

(a) The Loans shall be made in a single disbursement to the Borrowers on the Effective Date as part of a single Borrowing (the “Initial 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) Each Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans, as the Borrowers may request in accordance herewith. Each Lender at its option may make any Eurodollar 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 the Borrowers to repay such Loan in accordance with the terms of this Agreement.

(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $2,500,000. Borrowings of more than one Type may be outstanding at the same time; provided that there shall not at any time be more than a total of six (6) Eurodollar Borrowings outstanding.

(d) Notwithstanding the amount of the Loans borrowed by either Borrower, or whether either Borrower has requested a Borrowing, the Borrowers shall be jointly and severally liable for the repayment of the principal amount of each Loan and all interest thereon, fees, expenses and other amounts payable hereunder, in accordance with Section 2.18.

(e) Notwithstanding any other provision of this Agreement, the Borrowers shall not 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 Final Maturity Date.

SECTION 2.03. Request for Initial Borrowing. To request the Initial Borrowing, the Borrowers shall notify the Administrative Agent of such request in writing, pursuant to a written Borrowing Request signed by the Borrowers, (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., Los Angeles, California time, two (2) Business Days before the date of such Borrowing (provided, that the Borrowers shall have executed and delivered to the Administrative Agent, together with such Borrowing Request, a breakage cost indemnity letter in form and substance satisfactory to the Administrative Agent) or (b) in the case of an ABR Borrowing, not later than 10:00 a.m., Los Angeles, California time, on the date of such Borrowing. Such Borrowing Request shall be irrevocable and shall specify the following information in compliance with Section 2.02:

(i) the aggregate amount of the Initial Borrowing (which amount shall not exceed the aggregate amount of the Lenders’ Commitments), and the portion thereof to be borrowed by each Borrower;

(ii) the date of such Borrowing, which shall be a Business Day;

(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;

(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and

(v) the location and number of each Borrower’s account(s) to which funds are to be disbursed.

If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrowers shall be deemed to have selected an Interest Period of one (1) month’s duration. 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.

SECTION 2.04. Funding of Initial Borrowing.

(a) Each Lender shall make each Loan to be made by it hereunder on the Effective Date by wire transfer of immediately available funds by 11:00 a.m., Los Angeles, California time, on the Effective Date 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 Borrowers by promptly crediting the amounts so received, in like funds, to such account(s) of the Borrowers designated in the Borrowing Request delivered pursuant to Section 2.03.

(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of the Initial Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of the Initial Borrowing, the Administrative Agent may in its sole discretion assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrowers a corresponding amount. In such event, if a Lender has not in fact made its share of the Initial Borrowing available to the Administrative Agent, then the applicable Lender and the Borrowers severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrowers to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrowers, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the Initial Borrowing.

SECTION 2.05. Interest Elections.

(a) The Initial Borrowing shall initially be of the Type(s) specified in the Borrowing Request delivered pursuant to Section 2.03 and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrowers may elect to convert each Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, 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 Borrowers shall notify the Administrative Agent of such election by telephone (i) in the case of a conversion to, or continuation of, a Eurodollar Borrowing, not later than 11:00 a.m., Los Angeles, California time, three (3) Business Days before the date of such proposed conversion or continuation (as the case may be), or (ii) in the case of a conversion to an ABR Borrowing, not later than 11:00 a.m., Los Angeles, California time, one (1) Business Day before the date of such proposed conversion. 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 Borrowers.

(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 clauses (iii) and (iv) 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;

(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and

(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrowers shall be deemed to have selected an Interest Period of one (1) month’s duration.

(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

(e) If the Borrowers fail to deliver a timely Interest Election Request with respect to a Eurodollar 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 be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

SECTION 2.06. Termination of Commitments. The Commitments of the Lenders shall terminate in whole on the Effective Date immediately after the making of the Loans pursuant to Section 2.01.

SECTION 2.07. Repayment of Loans; Evidence of Debt.

(a) The Borrowers, jointly and severally, hereby unconditionally promise to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Loan on the Final Maturity Date.

(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(d) The entries made in the accounts maintained pursuant to 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.

(e) Any Lender may request that Loans be evidenced by a Note. In such event, the Borrowers shall prepare, execute and deliver to such Lender a Note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns). Thereafter, the Loans evidenced by such Note(s) and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more Notes in such form payable to the order of the payee named therein (or, if any such Note is a registered note, to such payee and its registered assigns).

SECTION 2.08. Prepayment of Loans.

(a) Subject to prior notice in accordance with paragraph (d) of this Section, 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 (subject, in the case of any prepayment of a Eurodollar Borrowing, to Section 2.13).

(b) The Borrowers shall prepay the Loans if either Borrower conveys, sells, leases, assigns, transfers or otherwise disposes of any of its Property other than as permitted by Section 6.05 hereof in an amount equal to the greater of (A) the Fair Value of the Property sold and (B) the consideration received by such Borrower from such transaction; provided that no payment made pursuant to this paragraph (b) need be made in an amount greater than the aggregate amount of Loans outstanding.

(c) Prior to any optional prepayment of Borrowings hereunder, the Borrowers shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment pursuant to paragraph (d) of this Section.

(d) The Borrowers shall notify the Administrative Agent by telephone (confirmed by telecopy) of any optional prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., Los Angeles, California time, three (3) Business Days before the date of prepayment, or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., Los Angeles, California time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an aggregate principal amount that is an integral multiple of $1,000,000 and not less than $5,000,000. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.10 and any amounts required to be paid pursuant to Section 2.13 in connection with such prepayment.

SECTION 2.09. Fees.

(a) The Borrowers jointly and severally agree to pay to the Lead Arranger and each Agent, for their own account and for the account of the Lenders, as applicable, such fees as are provided for in that certain letter agreement, dated the date hereof, among the Borrowers and the Agents (the “Fee Letter”), in each case, in the amounts and at the times specified therein.

(b) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, in the case of the up-front fees, to the Lenders entitled thereto. Fees paid shall be fully earned upon payment and shall not be refundable under any circumstances.

SECTION 2.10. 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 Eurodollar Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.

(c) Notwithstanding the foregoing, upon the occurrence and during the continuance of an Event of Default, each Loan shall bear interest at a rate equal to the higher of (i) 2.0% per annum in excess of the rate otherwise applicable to such Loan, as provided in paragraph (a) or (b) above, as applicable, or (ii) a per annum rate equal to the Alternate Base Rate plus the Applicable Margin for ABR Loans plus 2.0% (such rate, the “ABR Default Rate”). In addition, if any interest on any Loan, any fee or any 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, after as well as before judgment, at a rate per annum equal to the ABR Default Rate.

(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion. The Administrative Agent agrees to provide an invoice to the Borrowers for each interest payment due on an Interest Payment Date (provided, that the failure to provide any such invoice shall not in any manner affect the obligation of the Borrowers to pay interest on each Loan in accordance with the terms of this Agreement).

(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Reference Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). 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 2.11. Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Eurodollar 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 for such Interest Period; or

(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Eurodollar 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, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective.

SECTION 2.12. 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 or the Administrative Agent (except any such reserve requirement reflected in the Adjusted LIBO Rate);

(ii) subject any Lender to any Tax of any kind whatsoever with respect to this Agreement or any Eurodollar Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for (A) Indemnified Taxes or Other Taxes covered by Section 2.14 and (B) the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender); or

(iii) impose on any Lender, the Administrative Agent or the London interbank market any other condition affecting this Agreement or Eurodollar Loans made by such Lender;

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar 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 or the Administrative Agent hereunder in respect of any Eurodollar Loan (whether of principal, interest or otherwise), then the Borrowers will pay to such Lender or the Administrative Agent, as the case may be, such additional amount or amounts as will compensate such Lender or the Administrative Agent, as the case may be, for such additional costs incurred or reduction suffered.

(b) If any Lender determines that any Change in Law regarding capital 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, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrowers will 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 the case may be, as specified in paragraph (a) or (b) of this Section and containing a reasonable explanation thereof (to the extent permitted by law), shall be delivered to the Borrowers and shall be conclusive absent manifest error. The Borrowers jointly and severally agree to pay such Lender the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.

(d) No Lender shall be entitled to demand compensation or be compensated under this Section to the extent that such compensation relates to any period of time more than six (6) months prior to the date upon which such Lender first notified the Borrowers of the occurrence of the event entitling such Lender to such compensation (unless, and to the extent, that any such compensation so demanded shall relate to the retroactive application of any event so notified to the Borrowers).

SECTION 2.13. Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar 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 Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Loan on the date specified in any notice delivered pursuant hereto, or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrowers pursuant to Section 2.16, 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 Eurodollar Loan, such loss, cost or expense to any applicable Lender shall be deemed to include an 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, 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 dollar deposits 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 and containing a reasonably detailed calculation thereof shall be delivered to the Borrowers 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) Business Days after receipt thereof.

SECTION 2.14. Taxes.

(a) Any and all payments by or on account of any obligation of either Borrower hereunder or under any other Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if either Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent or applicable Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions and (iii) such Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law; provided, however, that the Borrowers shall not be required to increase any such amounts payable to any Lender with respect to any Indemnified Taxes (i) that are attributable to such Lender’s failure to comply with the requirements of paragraph (d) of this Section, or (ii) that are United States withholding taxes imposed on amounts payable to such Lender at the time such Lender becomes a party to this Agreement, except to the extent such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrowers with respect to such Indemnified Taxes pursuant to this paragraph (a).

(b) The Borrowers jointly and severally agree to indemnify the Administrative Agent and each Lender, within ten (10) Business Days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such Lender, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrowers hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other 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 Borrowers by a Lender, or by the Administrative Agent on its own behalf or on behalf of a Lender, containing a reasonably detailed calculation thereof, shall be conclusive absent manifest error.

(c) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by either Borrower to a Governmental Authority, such Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt (if any) 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 and reasonably available to such Borrower.

(d) To the extent legally able to do so, each Lender shall deliver to the Borrowers (with a copy to the Administrative Agent), on or prior to the date on which such Lender becomes a Lender under this Agreement, promptly upon the occurrence of any event that would result in the invalidity or obsolescence of any information provided upon previously-provided documentation, and from time to time thereafter as reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation prescribed by the law of the United States, or as otherwise reasonably requested by the Borrowers, as will permit such payments to be made without withholding. Without limiting the generality of the foregoing:

(i) Each Foreign Lender shall, to the extent legally able to do so:

(A) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement, deliver to the Borrowers and the Administrative Agent two copies of either (1) in the case of a Foreign Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Foreign Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of either Borrower and is not a controlled foreign corporation related to either Borrower (within the meaning of Section 864(d)(4) of the Code)), or (2) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Foreign Lender claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on payments by the Borrowers under this Agreement; and

(B) deliver to the Borrowers and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) promptly upon the obsolescence or invalidity of any form previously delivered by such Foreign Lender and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent.

(ii) Each Lender other than a Foreign Lender shall deliver to the Borrowers (with a copy to the Administrative Agent) a duly executed and properly completed copy of Internal Revenue Service Form W-9 (or applicable successor form) establishing an exemption from United States federal backup withholding tax at the following times: (x) on or prior to the date such Lender becomes a party to this Agreement with respect to such Lender; (y) promptly upon the occurrence of any event that would result in the invalidity or obsolescence of any previously-provided form; and (z) from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent.

(e) In addition, the Borrowers shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

(f) If any Lender or the Administrative Agent determines, in its reasonable discretion, that is has received a refund of a Tax for which an additional payment has been made by either Borrower pursuant to this Section 2.14, then such Lender or the Administrative Agent, as the case may be, shall reimburse such Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower under this Section 2.14 with respect to the Tax giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). This paragraph shall not be construed to require the Administrative 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.

SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.

(a) The Borrowers shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest or fees, or of amounts payable under Section 2.12, 2.13 or 2.14, or otherwise) prior to 10:00 a.m., Los Angeles, California time, on the date when due, in immediately available funds, without set-off, counterclaim, recoupment or deduction of any kind. Any amounts received after such time on any date shall 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 at its offices located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or such other office as the Administrative Agent shall from time to time designate to the Borrowers), except that payments pursuant to Sections 2.12, 2.13, 2.14 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder or under any other Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, such interest shall be payable for the period of such extension. All payments under each Loan Document shall be made in dollars.

(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due 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 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 shall not be construed to apply to any payment made by either Borrower 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 either Borrower or any Affiliate thereof (as to which the provisions of this paragraph 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 such 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 Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder 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. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(b) or 2.15(c), 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 2.16. Mitigation Obligations; Replacement of Lenders.

(a) If any Lender requests and is entitled to compensation under Section 2.12, or if either Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14, 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 judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.12 or 2.14, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrowers jointly and severally hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b) If (i) any Lender requests and is entitled to compensation under Section 2.12, (ii) either Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14, (iii) any Lender defaults in its obligation to fund Loans hereunder, or (iv) any Lender has not consented to a proposed amendment, waiver or modification under this Agreement that requires the consent of all Lenders and which has been approved by the Required Lenders, 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 and consent requirements contained in Section 9.04), all of 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 (A) no Event of Default has occurred and is continuing, (B) 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 hereunder, 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 (C) in the case of any such assignment resulting from a claim for compensation under Section 2.12 or payments required to be made pursuant to Section 2.14, such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.

SECTION 2.17. Illegality. Notwithstanding any other provision of this Agreement, if any Change in Law makes it unlawful, or any Governmental Authority asserts that it is unlawful, for any Lender to perform its obligations hereunder to make, continue or convert into Eurodollar Loans, then, on notice thereof and demand therefor by such Lender to the Borrowers through the Administrative Agent, (a) the obligation of such Lender to make, continue or convert into Eurodollar Loans shall be suspended until the Administrative Agent notifies the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist, and (b) the Borrowers shall forthwith prepay in full all Eurodollar Loans of such Lender then outstanding, together with accrued and unpaid interest thereon, unless the Borrowers, within five (5) Business Days of such notice and demand, convert all Eurodollar Loans of all Lenders then outstanding into ABR Loans in accordance with the terms hereof.

SECTION 2.18. Joint and Several Obligations; Subrogation Rights; Savings Clause.

(a) Notwithstanding anything to the contrary set forth herein or in any other Loan Document, the obligations of the Borrowers hereunder and under the other Loan Documents are joint and several, regardless of which of the Borrowers actually receives the proceeds of the Loans, or the manner in which the Borrowers, the Administrative Agent or the Lenders account therefor in their respective books and records. Neither the joint and several liability of a Borrower for the obligations of the other Borrower, nor the Liens granted to the Collateral Agent under the Security Documents by the Pledgors, shall be impaired or released by: (a) the failure of any Agent or any Lender, any successor or assign thereof or any holder of any Note to assert any claim or demand or to exercise or enforce any right, power or remedy against either Borrower, any other Person, the Collateral or otherwise, (b) any extension or renewal for any period (whether or not longer than the original period) or exchange of any of the obligations under the Loan Documents or the release or compromise of any obligation of any nature of any Person with respect thereto, (c) the surrender, release or exchange of all or any part of any Property (including, without limitation, the Collateral) securing payment, performance and/or observance of any of the obligations under the Loan Documents or the compromise or extension or renewal for any period (whether or not longer than the original period) of any obligations of any nature of any Person with respect to any such Property, (d) any action or inaction on the part of any Agent or any Lender, or any other event or condition with respect to either Borrower, which might otherwise constitute a defense available to, or a discharge of, either Borrower or a guarantor or surety of or for any or all of the obligations under the Loan Documents, (e) any action or inaction by either Borrower under any Loan Documents, (f) the avoidance or unenforceability of (i) any Lien granted to the Collateral Agent under the Security Documents, (ii) any transfer made by or on behalf of either Borrower for or on account of any obligation under the Loan Documents or (iii) any obligation incurred under the Loan Documents, or (g) any other act, matter or thing which would or might, in the absence of this provision, operate to release, discharge or otherwise prejudicially affect the obligations of either Borrower. Each Borrower waives all defenses based on suretyship or impairment of collateral.

(b) Each Borrower hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the other Borrower or any Guarantor that arise from the existence, payment, performance or enforcement of the Obligations under or in respect of this Agreement and the other Loan Documents, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Agent or any Lender against such other Borrower or any Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from such other Borrower or any Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations shall have been paid in full in cash. If any amount shall be paid to a Borrower in violation of the immediately preceding sentence at any time prior to the later of (i) the payment in full in cash of the Obligations, and (ii) the termination of all Commitments in accordance with the terms hereof, such amount shall be received and held in trust for the benefit of the Agents and the Lenders, shall be segregated from other property and funds of such Borrower and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations, whether matured or unmatured, in accordance with the terms of this Agreement and the other Loan Documents, or to be held as collateral for any Obligations thereafter arising. Each Borrower hereby acknowledges and agrees that the agreements set forth in this paragraph (b) are intended to benefit the other Borrower, the Agents and the Lenders and shall not limit or otherwise affect any Borrower’s liability hereunder or the enforceability hereof.

(c) Each of the Borrowers, the Agents and the Lenders hereby confirms that it is the intention of all such Persons that this Agreement and the Obligations of each Borrower hereunder and under the other Loan Documents to which it is a party not constitute a fraudulent transfer or fraudulent conveyance for purposes of the Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law to the extent applicable to this Agreement, the other Loan Documents and the Obligations of each Borrower hereunder and thereunder. To effectuate the foregoing intention, the Agents, the Lenders and the Borrowers hereby irrevocably agree that the Obligations of each Borrower under this Agreement and the other Loan Documents to which it is a party at any time shall be limited to the maximum amount as will result in such Obligations of such Borrower not constituting a fraudulent transfer or fraudulent conveyance.

ARTICLE III
Representations and Warranties

Each Borrower represents and warrants to the Agents and the Lenders that:

SECTION 3.01. Organization; Powers. Such Borrower (a) is a limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has all requisite limited liability company power and authority to carry on its business as now conducted or as proposed to be conducted, (c) has all material governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now conducted or as proposed to be conducted, except for those which are not necessary during the term of this Agreement and are expected to be obtained in the ordinary course of business by the time necessary, and (d) except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business, and is in good standing, in every jurisdiction in which the nature of the business conducted by it makes such qualification necessary.

SECTION 3.02. Authorization; Enforceability. The Transactions are within such Borrower’s limited liability company powers and have been duly authorized by all necessary limited liability company action. Each of the Loan Documents to which such Borrower is a party has been duly executed and delivered by such Borrower and constitutes, and each other Loan Document to which such Borrower is to be a party, when executed and delivered by such Borrower, will constitute, a legal, valid and binding obligation of such Borrower, enforceable against such Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or any other Person, except such as have been obtained or made and are in full force and effect, and except filings necessary to perfect Liens created under the Loan Documents, (b) will not violate any Requirement of Law, except where such violation (other than any such violation of the certificate of formation, limited liability company agreement or other organizational document or governing document of any of the Loan Parties or any of the Pledgors) could not reasonably be expected to have a Material Adverse Effect, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon such Borrower or its assets, or give rise to a right thereunder to require any payment to be made by such Borrower, except where such violation, default or right to require payment could not reasonably be expected to have a Material Adverse Effect, and (d) will not result in the creation or imposition of any Lien on any of the revenues or assets of such Borrower other than Liens permitted hereunder.

SECTION 3.04. Financial Condition; No Material Adverse Change.

(a) The audited balance sheet and related statements of income, retained earnings and cash flows of such Borrower as of and for the fiscal year ended December 31, 2009 present fairly, in all material respects, the financial position and results of operations and cash flows of such Borrower as of such date and for such fiscal year in accordance with GAAP, as applied on a consistent basis. The unaudited balance sheet and related statements of income, retained earnings and cash flows of such Borrower as of and for the fiscal quarterly period ended June 30, 2010 and the most recent financial statements delivered by such Borrower pursuant to Section 5.01(a) or 5.01(b) present fairly, in all material respects, the financial position and results of operations and cash flows of such Borrower as of such dates and for such periods in accordance with GAAP, as applied on a consistent basis, subject to year-end audit adjustments and the absence of footnotes in the case of such June 30, 2010 financial information or the statements delivered pursuant to Section 5.01(b). Such Borrower had not, at the date of the most recent balance sheet referred to above, any Guarantee, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitments, including any interest rate or foreign currency swap or exchange transaction, which, taken as a whole, were material to such Borrower, and which were not reflected in the foregoing statements or in the notes thereto. Except as disclosed in Schedule 3.04, during the period from June 30, 2010 to and including the Effective Date there has been no sale, transfer or other disposition by such Borrower of any part of its business or Property, and no purchase or other acquisition of any business or Property (including any Equity Interests of any other Person), which, in any case, is material in relation to the financial condition of such Borrower taken as a whole at June 30, 2010.

(b) Since December 31, 2009, there has been no event or change in facts or circumstances affecting such Borrower that individually or in the aggregate has had or could reasonably be expected to have a Material Adverse Effect.

SECTION 3.05. Title to Properties, Etc. Except as disclosed in Schedule 3.05:

(a) Such Borrower has good, sufficient and clear title to, or valid leasehold interests in, all Property material to its business, free and clear of all adverse possession or abandonment claims and Liens, except Permitted Encumbrances and other Liens permitted hereunder.

(b) All leases, rights of way, permits, licenses, franchises, and agreements necessary for the conduct of the business of such Borrower and for the Transactions are valid and subsisting and in full force and effect, and there exists no default or event or circumstance which with the giving of notice or the passage of time or both would give rise to a default under any such leases, rights of way, permits, licenses, franchises or agreements, which would adversely affect in any material respect the conduct of the business of such Borrower, including the Transactions.

(c) The rights, Properties and other assets presently owned, leased or licensed by such Borrower, including, without limitation, all easements and rights of way, include all rights, Properties and other assets necessary to permit such Borrower to conduct its business in all material respects in substantially the same manner as its business has been conducted prior to the Effective Date.

(d) All of the Properties of such Borrower which are reasonably necessary for the operation of its business are in good working condition and are maintained in accordance with Section 5.05(a).

(e) Such Borrower owns, or is licensed or permitted to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by it does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

SECTION 3.06. Litigation. Except as disclosed in Schedule 3.06, there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of such Borrower, threatened against such Borrower (a) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, would, individually or in the aggregate, result in a Material Adverse Effect, or (b) that involve any of the Loan Documents or the Transactions.

SECTION 3.07. Compliance with Laws and Agreements. Except as disclosed in Schedule 3.07 and not including Environmental Liabilities, which are addressed in Section 3.18:

(a) Such Borrower has obtained all licenses, permits, franchises and other governmental authorizations necessary for the ownership of its Properties and the conduct of its business, including the Transactions, except where the failure to obtain such licenses, permits, franchises or governmental authorizations would not have (in the event such failure were asserted by any Person through appropriate action) a Material Adverse Effect and, in each case, except for those which are not necessary during the term of this Agreement and which are expected to be obtained in the ordinary course of business by the time necessary.

(b) Such Borrower is in compliance with all Requirements of Law, including the Fair Labor Standards Act, the Americans with Disabilities Act, the Foreign Corrupt Practices Act and Anti-Terrorism Laws, applicable to it or its Property and all indentures, agreements and other instruments binding upon it or its Property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

SECTION 3.08. Margin Regulations. No part of the proceeds of any Loans will be used for “purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in effect or for any purpose that violates the provisions of the regulations of the Board. If requested by any Lender or the Administrative Agent, each Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1 referred to in Regulation U.

SECTION 3.09. Regulatory Status.

(a) Such Borrower is not an “investment company” or a company “controlled” by an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.

(b) Such Borrower is not subject to regulation under any Requirement of Law (other than Regulation X of the Board) which purports to restrict or regulate its ability to borrow money or otherwise incur Indebtedness.

SECTION 3.10. Taxes. Such Borrower has filed all United States federal income tax returns and all other material tax returns which are required to be filed by it, or otherwise obtained appropriate extensions to file, and has paid all Taxes shown as due on such returns or pursuant to any assessment received by such Borrower, except such Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings and for which such Borrower has set aside on its books adequate reserves in accordance with GAAP.

SECTION 3.11. ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plan by an amount that has resulted or could reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of all such underfunded Plans by an amount that has resulted or could reasonably be expected to result in a Material Adverse Effect.

SECTION 3.12. Security Documents.

(a) On the Effective Date, the provisions of the Security Documents are effective to create, in favor of the Collateral Agent for the benefit of the secured parties thereunder, legal, valid and enforceable Liens on or in all of the Collateral subject thereto, and all necessary deliveries of property to the Collateral Agent and all necessary recordings and filings have been made in all necessary public offices so that the Liens created by such Security Documents constitute perfected Liens on or in all rights, titles, estates and interests of the applicable Loan Party in the Collateral covered thereby, prior and superior to all other Liens, and all necessary consents to the creation and perfection of such Liens have been obtained. No financing statement or other instrument or recordation covering all or any part of the Collateral is on file in any recording office which has not been terminated or released, except as may have been filed in favor of the Collateral Agent.

(b) Such Borrower is not a party to any agreement or arrangement (other than any Loan Document), or subject to any order, judgment, writ or decree, which either restricts or purports to restrict its ability to grant Liens to other Persons on or in respect of its Properties other than such restrictions which have been waived or will have been waived, as of the date this representation is made, by the party to such agreement who is entitled to waive such restriction.

SECTION 3.13. Disclosure. Such Borrower has disclosed to the Administrative Agent all agreements, instruments and corporate or other restrictions to which it is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of such Borrower to any Agent or Lender in connection with the negotiation of this Agreement or any other Loan Document or delivered hereunder (as modified or supplemented by, and taken together with, other information so furnished) contained, as of the date of such report, financial statement, certificate or other information so furnished, any material misstatement of a fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to forward looking statements, such Borrower represents only that such information represents such Borrower’s best estimate of future performance and was prepared in good faith based upon assumptions believed to be reasonable at the time, it being recognized by the Agents and the Lenders that there can be no assurance that such expectations, beliefs or projections will be achieved or accomplished and that such projections are subject to an increasing degree of uncertainty as they relate to later periods of time.

SECTION 3.14. Solvency. Both before and after giving effect to the Transactions, the Borrowers, taken as a whole, are Solvent. Such Borrower has received fair consideration and reasonably equivalent value for its respective obligations under this Agreement and the other Loan Documents.

SECTION 3.15. Labor Matters. There are no strikes or other labor disputes against such Borrower pending or, to the knowledge of such Borrower, threatened that (individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect. Hours worked by and payment made to employees of such Borrower have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters that (individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect. All payments due from such Borrower on account of employee health and welfare insurance that (individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect if not paid have been paid or accrued as a liability on the books of such Borrower.

SECTION 3.16. Anti-Terrorism Laws.

(a) Neither such Borrower nor, to the knowledge of such Borrower, any of its Affiliates is in violation of any Requirement of Law relating to terrorism, sanctions 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) Neither such Borrower nor, to the knowledge of such Borrower, any of its Affiliates is 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 on the Annex to, or is otherwise subject to the provisions of, the Executive Order;

(iii) a Person with whom such Borrower is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;

(iv) a Person who commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; or

(v) a Person that is named as a “specially designated national or blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website or any replacement website or other replacement official publication of such list.

(c) Neither such Borrower nor, to the knowledge of such Borrower, any of its Affiliates (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Person described in clause (b)(i), (ii), (iii) or (v) above or, to the knowledge of such Borrower, clause (b)(iv) above; (ii) deals in, or otherwise engages in any transaction relating to, any Property or interest in Property blocked pursuant to the Executive Order; or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purposes of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

(d) No broker or other agent (other than the Lead Arranger in connection with the syndication of the credit facilities established by this Agreement) is acting for the benefit of such Borrower or any of its Affiliates, or, to the knowledge of such Borrower, benefiting in any capacity, in each case in connection with the Loan Documents.

SECTION 3.17. No Subsidiaries. Such Borrower has no Subsidiaries.

SECTION 3.18. Environmental Matters. Except as could not reasonably be expected to have a Material Adverse Effect (or with respect to paragraphs (b) and (c) below, where the failure to take such actions could not reasonably be expected to have a Material Adverse Effect):

(a) Such Borrower is not subject to any existing, pending or, to its knowledge, threatened action, suit, investigation, inquiry or proceeding by or before any Governmental Authority, or to any remedial obligations under Environmental Laws;

(b) Such Borrower has obtained or filed, and is in compliance with the terms and conditions of, all notices, permits, licenses and similar authorizations required under applicable Environmental Laws;

(c) (i) To the best knowledge of such Borrower, all Hazardous Materials, if any, generated at any and all Property of such Borrower in the past have been transported, treated and disposed of in accordance with Environmental Laws and so as not to pose an imminent and substantial endangerment to public health or welfare or the environment, (ii) to the best knowledge of such Borrower, all such transport carriers and treatment and disposal facilities have been and are operating in compliance with Environmental Laws and so as not to pose an imminent and substantial endangerment to public health or welfare or the environment, and (iii) any Hazardous Materials generated by the operation of its Property have been transported, treated and disposed of in accordance with Environmental Laws and so as not to pose an imminent and substantial endangerment to public health or welfare or the environment;

(d) Such Borrower (i) has complied with all Environmental Laws and obtained, maintained and complied with all permits, licenses or other approvals required under any Environmental Law, (ii) is not subject to any Environmental Liability, (iii) has not received notice of any claim against it with respect to any Environmental Liability or (iv) does not know of any basis for any Environmental Liability on its part; and

(e) There has been no release or threatened release of Hazardous Materials on, at, under or from any Property presently owned, leased, or operated by such Borrower that has resulted in, or is reasonably likely to result in, liability or obligations of such Borrower under any Environmental Laws.

SECTION 3.19. Insurance. Schedule 3.19 contains an accurate description of all material policies of fire, liability, workers’ compensation and other forms of insurance owned or held by such Borrower as of the Effective Date. All such policies are in full force and effect, all premiums with respect thereto covering all periods up to and including the Effective Date have been paid, and no notice of cancellation or termination has been received with respect to any such policy. Such policies are sufficient for compliance with all Requirements of Law and of all material agreements to which such Borrower is a party; are valid, outstanding and enforceable policies; provide adequate insurance coverage for the assets and operations of such Borrower in at least such amounts and against at least such risks (but including in any event public liability) as are usually insured against in the same general area by companies engaged in the same or a similar business; will remain in full force and effect through the respective dates set forth in Schedule 3.19 without the payment of additional premiums; and will not in any way be affected by, or terminate or lapse by reason of, the transactions contemplated by this Agreement. Schedule 3.19 identifies all material risks, if any, which such Borrower has designated as being self-insured.

SECTION 3.20. Hedging Agreements. Schedule 3.20 sets forth, as of the Effective Date, a true and complete list of all Hedging Agreements of such Borrower, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net ▇▇▇▇ to market value thereof, all credit support agreements relating thereto (including any margin required or supplied), and the counterparty to each such agreement.

SECTION 3.21. No Default or Event of Default. No Default or Event of Default has occurred and is continuing.

SECTION 3.22. Use of Proceeds. The proceeds of the Loans will be used in accordance with Section 5.08.

ARTICLE IV
Conditions Precedent

SECTION 4.01. Effective Date. The obligations of the Lenders under this Agreement shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02), and upon such satisfaction or waiver, the Administrative Agent shall notify the Borrowers in writing of the date that constitutes the Effective Date:

(a) The Administrative Agent (or its counsel) shall have received:

(i) from each party hereto either (A) a counterpart of this Agreement signed by such party or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;

(ii) from the Borrowers either (A) the Notes signed by the Borrowers (to the extent requested by any Lender pursuant to Section 2.07(e)) or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of the Notes) that the Borrowers have signed such Notes;

(iii) from each party thereto either (A) a counterpart of the Guaranty signed by such party or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of the Notes) that such party has signed a counterpart of the Guaranty;

(iv) a counterpart of the Pledge Agreement signed on behalf of each Pledgor, together with (A) all documents, instruments and filings creating or perfecting the Liens of the Pledge Agreement; (B) certificates (if any) representing the Equity Interests of the Pledgors in the Borrowers, accompanied by instruments of transfer and stock powers endorsed in blank; and (C) all other documents and instruments required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the Pledge Agreement;

(v) (A) a favorable written opinion (addressed to each Agent and the Lenders and dated the Effective Date) of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, LLP, New York counsel for the Loan Parties, in form and substance satisfactory to the Lenders, (B) a favorable written opinion (addressed to each Agent and the Lenders and dated the Effective Date) of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President, Legal for FirstEnergy Service Company, in form and substance satisfactory to the Lenders, and (C) a favorable written opinion (addressed to each Agent and the Lenders and dated the Effective Date) of ▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇ LLP, counsel to certain of the Loan Parties and Pledgors, in form and substance satisfactory to the Lenders. The Borrowers hereby request such counsel to deliver such opinions;

(vi) (A) certified copies of the resolutions of the board of directors (or other equivalent body) of each Loan Party and (without duplication) each Pledgor authorizing the execution, delivery and performance of each Loan Document to which it is or is intended to be a party and any other matters with respect to the Transactions and the Loan Documents (including, without limitation, evidence of the consent of each Loan Party’s and (without limitation) each Pledgor’s members or Board of Directors, as the case may be, to the Transactions and the other Loan Documents, to the extent such consent is required pursuant to the terms of such Person’s operating agreement or other formation and governing documents), (B) certified copies of the organizational documents (including any certificate of formation, certificate of incorporation, operating agreement, or by-laws, as the case may be) of each Loan Party and each Pledgor and all amendments thereto, (C) a certificate for each Loan Party and each Pledgor certifying the name, incumbency and signature of each individual authorized to execute the Loan Documents to which it is a party and the other documents or certificates to be delivered pursuant hereto or thereto, on which each Agent may conclusively rely until a revised certificate is similarly so delivered, and (D) good standing certificates with respect to each Loan Party and each Pledgor issued no earlier than ten (10) days prior to the Effective Date;

(vii) Uniform Commercial Code, tax and judgment lien searches as to FirstEnergy Ventures in the State of Ohio, and as to the Borrowers, Global Mining Group and WMB II in the State of Delaware;

(viii) satisfactory evidence that (A) all Indebtedness under the SPE Credit Agreement and the RailCo Credit Agreement, together with all accrued interest, fees, costs, expenses and other amounts payable by the Borrowers thereunder, have been (or will be, contemporaneously with the making of the Loans on the Effective Date) paid in full, (B) such agreements and all commitments thereunder have been irrevocably terminated, and (C) all Liens securing payment of the obligations thereunder have been terminated and released;

(ix) a Borrowing Request with respect to the Initial Borrowing; and

(x) such other statements, certificates, approvals, opinions, documents and information with respect to the matters contemplated by this Agreement as the Agents or any Lender may reasonably request.

(b) The representations and warranties of the Loan Parties and the Pledgors set forth in this Agreement and the other Loan Documents shall be true and correct, no Default or Event of Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer or the President or a Vice President of each Borrower, confirming the same as of the Effective Date.

(c) Since June 30, 2010, there shall have been no material adverse change in the financial condition, results of operations or business of either Borrower.

(d) The Administrative Agent and the Lenders 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, without limitation, the Patriot Act.

(e) The Administrative Agent and Lead Arranger shall have received all fees and other amounts due and payable on or prior to the Effective Date, including all up-front fees and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including, without limitation, the reasonable fees and expenses of counsel to the Administrative Agent and the Lead Arranger) required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.

(f) All requisite Governmental Authorities and third parties, if any, shall have approved or consented to this Agreement, the other Loan Documents and the Transactions to the extent required (and the Administrative Agent shall have received certified copies of all such approvals and consents, which shall be in form and substance satisfactory to the Administrative Agent and the Lenders), no stay of any applicable regulatory approval shall have been issued and there shall be no litigation, governmental, administrative or judicial action, actual or threatened, that could reasonably be expected to restrain, prevent or impose burdensome conditions on this Agreement and the other Loan Documents or the Transactions.

ARTICLE V
Affirmative Covenants

Until the Commitments have been terminated and the principal of and interest on each Loan and all fees and other Obligations payable by the Borrowers hereunder and under the other Loan Documents shall have been paid in full, each Borrower covenants and agrees with the Administrative Agent and the Lenders that:

SECTION 5.01. Financial Statements and Other Information. Such Borrower will furnish to the Administrative Agent (and the Administrative Agent will forward such copies to the Lenders):

(a) as soon as available and in any event within one hundred and twenty (120) days after the end of each fiscal year of such Borrower, audited statements of income, retained earnings and cash flows of such Borrower for such year and the related balance sheet as of the end of such year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, and accompanied by an opinion of the accounting firm of PricewaterhouseCoopers LLP or such other independent public accountants of recognized regional or national standing selected by such Borrower and reasonably acceptable to the Required Lenders, which opinion shall not contain any qualification or exception as to the scope of such audit and shall state that the financial statements fairly present in all material respects the financial condition and results of operations of such Borrower as of the end of, and for, such fiscal year and have been prepared in accordance with GAAP, consistently applied (except where noted);

(b) as soon as available and in any event within sixty (60) days after the end of each of the first three (3) fiscal quarterly periods of each fiscal year of such Borrower, unaudited statements of income, retained earnings and cash flows of such Borrower for such period and for the period from the beginning of the fiscal year to the end of such period, and the related balance sheets as of the end of such period, setting forth in each case in comparative form the corresponding figures as of the end of and for the corresponding period in the preceding fiscal year, accompanied by a certificate of a Financial Officer of such Borrower which certificate shall state that the financial statements fairly present in all material respects the financial condition and results of operations, as the case may be, of such Borrower in accordance with GAAP, consistently applied (except where noted), as of the end of, and for, such period (subject to normal year-end audit adjustments and the absence of footnotes);

(c) concurrently with any delivery of financial statements of such Borrower under clause (a) or (b) above, a certificate (a “Compliance Certificate”) of a Financial Officer of such Borrower (i) certifying as to whether a Default has occurred and is continuing, and in such event, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth either or each Rating for FirstEnergy as of the end of the respective fiscal quarter or fiscal year, as applicable, and (iii) stating whether any change in GAAP or in the application thereof not disclosed in any prior such certificate has occurred since June 30, 2010 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;

(d) promptly upon their becoming available, copies of any written notices from any Governmental Authority of non-compliance by such Borrower with any material decision of the applicable Governmental Authority, or with any other material rules, regulations or orders of the applicable Governmental Authority, and any written notices of any extraordinary audit or investigation by any applicable Governmental Authority into the business, affairs or operations of such Borrower; and

(e) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of such Borrower (including, without limitation, any Plan or Multiemployer Plan and any reports or other information required to be filed under ERISA to the extent reasonably available to such Borrower after such Borrower’s demand therefor), or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request.

SECTION 5.02. Notices of Material Events. To the extent such Borrower becomes aware of any of the following, such Borrower will furnish to the Administrative Agent and each Lender written notice of the following, promptly (and in any event within ten (10) Business Days) after the occurrence thereof:

(a) the occurrence of any Default or Event of Default not previously notified to such Borrower by the Administrative Agent;

(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting such Borrower or any Affiliate thereof that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;

(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; and

(d) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.

Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the applicable Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

SECTION 5.03. Existence; Conduct of Business. Such Borrower will do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and all rights, licenses, permits, privileges, franchises and government approvals and authorizations material to the conduct, maintenance and operation of its Property and the conduct of its business, except to the extent the failure to do so could not reasonably be expected to result in a Material Adverse Effect.

SECTION 5.04. Payment of Obligations. Such Borrower will pay its obligations, including Tax liabilities and assessments, before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) such Borrower has set aside on its books adequate reserves with respect thereto to the extent required by and otherwise in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.

SECTION 5.05. Maintenance of Properties; Insurance. Such Borrower will:

(a) except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect, do all that is necessary to preserve and keep in good repair, working order and efficiency all of its Properties including, without limitation, all equipment, machinery and facilities, and from time to time will make all the necessary repairs, renewals and replacements so that at all times the state and condition of its Properties will be fully preserved and maintained. Except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect, such Borrower will promptly: (i) pay and discharge, or make reasonable and customary efforts to cause to be paid and discharged, all rentals, royalties, expenses and indebtedness accruing under the rights of way, licenses, leases or other agreements affecting or pertaining to its Properties, (ii) perform or make reasonable and customary efforts to cause to be performed, in accordance with industry standards, the obligations required by each and all of the rights of way, deeds, leases, sub-leases, contracts and agreements affecting its interests in its Properties, and (iii) do all other things necessary to keep unimpaired, except for Liens permitted under Section 6.02, its rights with respect to its Properties and prevent any forfeiture thereof or a default thereunder, except for any sale, lease, transfer or other disposition thereof permitted by Section 6.05. Such Borrower will cause its Properties to be operated in a careful and efficient manner in accordance in all material respects with the practices of the industry and in compliance in all material respects with all applicable contracts and agreements and all Requirement of Laws; and

(b) maintain, with financially sound and reputable insurance companies, or through its own program of self-insurance, insurance in such amounts (with no greater risk retention) and against such risks and with such self insurance as are customarily maintained by companies of established reputations engaged in the same or similar businesses operating in the same or similar locations. Such Borrower will furnish to the Lenders, upon reasonable request of the Administrative Agent, information in reasonable detail as to the insurance so maintained.

SECTION 5.06. Books and Records; Inspection Rights. Such Borrower will keep proper books of record and account in which entries are made of all dealings and transactions in relation to its business and activities, all in accordance with GAAP and with customary and prudent business practices. Such Borrower will permit any representatives designated by an Agent or any Lender, upon reasonable prior notice during ordinary business hours, to visit and inspect its Properties, and, subject to contractual or statutory limitations regarding confidential or proprietary information, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, as often as reasonably requested.

SECTION 5.07. Compliance with Laws. Such Borrower will comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its Property (including, without limitation, ERISA and Environmental Laws), except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used only: (a) for the repayment in full on the Effective Date of all Indebtedness and other obligations of the Borrowers payable under the SPE Credit Agreement and the RailCo Credit Agreement; and (b) for other general corporate purposes, including the repayment on the Effective Date of any outstanding obligations of SPE or RailCo to FirstEnergy or any of its Affiliates (such repayment, the “Closing Distribution”). No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.

SECTION 5.09. Environmental Matters. Such Borrower will:

(a) conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws, except to the extent that the failure to take such actions could not reasonably be expected to have a Material Adverse Effect, and promptly comply with all lawful orders and directives of all Governmental Authorities respecting Environmental Laws, except to the extent that the same are being contested in good faith by appropriate proceedings and the pendency of such proceedings, or failure to comply with such orders or directives, could not reasonably be expected to have a Material Adverse Effect;

(b) establish and implement such procedures as may be reasonably necessary to continuously determine and assure that any failure of the following does not have a Material Adverse Effect: (i) all Property of such Borrower and the operations conducted thereon and other activities of such Borrower are in compliance with and do not violate the requirements of any Environmental Laws, (ii) such Borrower is in compliance with and maintains any and all licenses, approvals, registrations or permits required by Environmental Laws, (iii) no Hazardous Materials are disposed of or otherwise released on or to any Property owned by such Borrower, except in compliance with Environmental Laws, and (iv) no Hazardous Materials will be released on or to any such Property by such Borrower in a quantity equal to or exceeding that quantity which requires reporting pursuant to Section 103 of CERCLA; and

(c) promptly notify the Administrative Agent and the Lenders in writing of any threatened action, investigation or inquiry by any Governmental Authority of which such Borrower has knowledge in connection with any Environmental Laws, excluding routine testing and corrective action, that might result in such Borrower being liable for the payment or performance of obligations in an amount that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.

SECTION 5.10. Further Assurances. Such Borrower will execute any and all further documents, agreements and instruments, and take all such further actions which may be required under any applicable law, or which any Agent or the Required Lenders may reasonably request, to effectuate the transactions contemplated by the Loan Documents, or to correct any omissions or errors in any Loan Document, all at the expense of the Borrowers.

SECTION 5.11. Subsidiaries. Such Borrower shall have no Subsidiaries.

ARTICLE VI
Negative Covenants

SECTION 6.01. Indebtedness. Such Borrower will not create, incur, assume or permit to exist any Indebtedness, except:

(a) Indebtedness created under the Loan Documents;

(b) accounts payable (for the deferred purchase price of Property or services) or other usual and customary payables from time to time incurred in the ordinary course of business which, if greater than thirty (30) days past the due date, are being contested in good faith by appropriate proceedings if reserves adequate under GAAP shall have been established therefor;

(c) (i) Indebtedness of such Borrower incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations, and any Indebtedness assumed in connection with the acquisition by such Borrower of any such assets or secured by a Lien on any such assets prior to the acquisition thereof by such Borrower, provided that such Indebtedness is incurred or assumed prior to or within ninety (90) days after such acquisition or the completion of such construction or improvement, and (ii) any extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount, or decrease the tenor, thereof;

(d) Indebtedness under Hedging Agreements permitted under Section 6.07; and

(e) (i) unsecured Indebtedness of such Borrower in favor of FirstEnergy; (ii) unsecured Indebtedness of SPE to RailCo in an aggregate amount equal to or less than (A) the toll payments charged by RailCo to SPE pursuant to the Tolling Agreement, dated July 16, 2008, between SPE and RailCo, plus (B) the toll payments charged by RailCo to FirstEnergy pursuant to the Toll Payment Agreement, dated July 16, 2008, between FirstEnergy and RailCo, less (C) all operating, maintenance, and capital expenses of RailCo, and, without duplication, any amounts that RailCo is required to pay to service its indebtedness; (iii) unsecured Indebtedness of SPE to MarketCo in an aggregate amount equal to or less than (A) the price per ton received by MarketCo for the sale of coal by SPE, less (B) the minimum price per ton agreed upon by MarketCo and SPE for MarketCo’s sale of such coal; and (iv) other unsecured Indebtedness of such Borrower in an aggregate amount not exceeding $15,000,000; in each case, on terms and conditions acceptable to the Required Lenders and provided that such Indebtedness shall be at all times subordinated in right of payment to the Obligations pursuant to a subordination agreement in form and substance acceptable to the Required Lenders (it being understood that, solely with respect to Indebtedness of either Borrower in favor of FirstEnergy, the terms of subordination set forth in Section 15 of the Guaranty are acceptable to the Lenders) (collectively, “Subordinated Debt”).

SECTION 6.02. Liens. Such Borrower will not create, incur, assume or permit to exist any Lien on any Property now owned or hereafter acquired by it, or assign or sell any income or revenues or rights in respect of any thereof, except:

(a) Permitted Encumbrances;

(b) (i) Liens on fixed or capital assets acquired, constructed or improved by such Borrower in an amount not exceeding, individually or in the aggregate, $15,000,000, and (ii) Liens on moveable or non-fixed assets acquired by such Borrower; provided, in each case, that (i) such Liens secure Indebtedness permitted by Section 6.01(c), and (ii) such Liens shall not apply to Property of such Borrower other than Property financed by such Indebtedness;

(c) Liens comprised by escrow arrangements entered into in connection with assets sales, transfers or other dispositions permitted pursuant to Section 6.05; and

(d) additional Liens on Property of such Borrower so long as the aggregate principal amount of the obligations secured by such Liens does not exceed $10,000,000.

SECTION 6.03. Fundamental Changes.

(a) Such Borrower will not merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its assets, or liquidate or dissolve.

(b) Such Borrower will not engage to any material extent in any business other than businesses of the type conducted by such Borrower on the date of execution of this Agreement and businesses reasonably related thereto.

SECTION 6.04. Investments, Loans, Advances and Acquisitions. Such Borrower will not purchase, hold or acquire any Equity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:

(a) Permitted Investments;

(b) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;

(d) investments permitted pursuant to Section 6.08;

(e) unsecured and subordinated loans by RailCo to SPE permitted pursuant to Section 6.01(e)(ii); and

(f) acquisitions by SPE of coal reserves.

SECTION 6.05. Asset Sales. Such Borrower will not convey, sell, lease, assign, transfer or otherwise dispose of any of its Property or business (including leasehold interests), whether now owned or hereafter acquired, except:

(a) inventory and other Property in the ordinary course of business;

(b) dispositions of Property of such Borrower to the extent that such Property is replaced by such Borrower within ninety (90) days after the date of such disposition with Property (A) of substantially the same character and at least equivalent quality, utility and useful life and (B) having a Fair Value equal to or greater that the Fair Value of the disposed Property;

(c) dispositions of Property of such Borrower to the extent that, contemporaneously with such disposition, such Property is exchanged by such Borrower for other Property having a Fair Value equal to or greater that the Fair Value of the disposed Property, as determined in the good faith judgment of the members (or the Board of Directors, Managers or any corresponding body, or a duly constituted committee thereof) of such Borrower (as applicable) and certified in writing to the Administrative Agent by a Responsible Officer of such Borrower; and

(d) such Borrower may sell, transfer or otherwise dispose of other assets for Fair Value in transactions not permitted under clauses (a), (b) or (c) above; provided that (i) the aggregate consideration for all sales, transfers and disposals by such Borrower pursuant to this clause (d) during any fiscal year of such Borrower shall not exceed $1,000,000; (ii) with respect to any such sale, transfer or disposition (or series of related sales, transfers or dispositions) with an aggregate consideration in excess of $500,000, the members (or the Manager, Managing Board or any corresponding body, or a duly constituted committee thereof) of such Borrower shall have approved such sale, transfer or disposition, as the case may be; and (iii) no Default is then existing and, after giving effect to any such sale, transfer or disposition, as the case may be, no Default shall have occurred and be continuing.

SECTION 6.06. Sale and Leaseback Transactions. Such Borrower will not enter into any arrangement, directly or indirectly, whereby it shall sell, transfer or otherwise dispose of any Property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such Property or other Property that it intends to use for substantially the same purpose or purposes as the Property sold or transferred, except for any such sale of any fixed or capital assets that is made for Fair Value and is consummated within ninety (90) days after such Borrower acquires or completes the construction of such fixed or capital asset.

SECTION 6.07. Limitation on Hedging Agreements.

(a) Such Borrower will not enter into any Hedging Agreement other than Hedging Agreements entered into in the ordinary course of business and not for speculative purposes.

(b) Any Indebtedness incurred under any Specified Hedge Agreement shall be treated as Indebtedness pari passu with all Indebtedness otherwise incurred hereunder or under the other Loan Documents and shall be secured under the Security Documents.

SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness. Such Borrower will not declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment (other than the Closing Distribution), except for:

(a) (i) payments of cash dividends or cash distributions to its members, (ii) payments to a member of such Borrower to pay for consolidated, combined or similar Federal, state or local taxes payable by such member and directly attributable to (or arising as a result of) the operation of such Borrower, (iii) payments of principal, interest or other amounts required or permitted to be paid pursuant to the Subordinated Debt to the holders of the Subordinated Debt (other than FirstEnergy) (provided, that such payments are permitted under the subordination provisions applicable thereto), and (iv) payments of management fees, extraction fees, royalties or such other payments of similar substance or effect by such Borrower to ▇▇▇▇▇, First Energy, any Affiliates of ▇▇▇▇▇ or FirstEnergy, or any other Affiliates of such Borrower, in each case, so long as both before and after giving effect to such payment, no Default has occurred and is continuing; and

(b) payments of principal, interest or other amounts required or permitted to be paid pursuant to Subordinated Debt incurred pursuant to Section 6.01(e)(i) to FirstEnergy, so long as (A) both before and after giving effect to such payment, no Default has occurred and is continuing, (B) such payments are permitted under the subordination provisions applicable thereto and (C) the representations and warranties of the Loan Parties and the Pledgors set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of such payment, both before and after giving effect to such payment and to the application of the proceeds thereof, as though made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date).

SECTION 6.09. Transactions with Affiliates. Such Borrower will not sell, lease or otherwise transfer any Property to, or purchase, lease or otherwise acquire any Property from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) at prices and on terms and conditions no less favorable to such Borrower than could be obtained on an arm’s length basis from unrelated third parties, (b) any Restricted Payment permitted by Section 6.08, and (c) shared corporate or administrative services and staffing with Affiliates, including accounting, legal, human resources and treasury operations, provided on customary terms for similarly situated companies.

SECTION 6.10. Restrictive Agreements. Such Borrower will not, directly or indirectly, create, assume, enter into, incur or permit to exist any contract, agreement, understanding or other arrangement that prohibits, restricts or imposes any condition upon the granting, conveying, creation, imposition or maintenance of any Lien on any of its Property or which requires the consent of or notice to other Persons in connection therewith; provided that the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document.

SECTION 6.11. Accounting Changes. Such Borrower will not make any significant change in accounting treatment or reporting practices except as required by GAAP, or change its fiscal year.

SECTION 6.12. Compliance with ERISA. Such Borrower will not (a) enter into any “prohibited transaction” (as defined in Section 4975 of the Code, and in ERISA) involving any Plan that could reasonably be expected to result in a Material Adverse Effect or (ii) allow or suffer to exist any other event or condition known to such Borrower that results in any liability of such Borrower to the PBGC that could reasonably be expected to result in a Material Adverse Effect For purposes of this Section 6.12, “liability” shall not include termination insurance premiums payable under Section 4007 of ERISA.

ARTICLE VII
Events of Default

If any of the following events (“Events of Default”) shall occur:

(a) the Borrowers shall fail to make any payment of (i) principal of any Loan when the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment or otherwise, or (ii) interest on any Loan or any other amount payable by either Borrower hereunder within five (5) days after the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;

(b) any representation or warranty made or deemed made by or on behalf of any Loan Party in or in connection with any Loan Document or any amendment or modification hereof or waiver hereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification hereof or waiver hereunder, shall prove to have been incorrect in any material respect when made or deemed made;

(c) (i) any Borrower shall fail to observe or perform any covenant, condition or agreement contained in (A) Section 5.01, and such failure shall continue unremedied for a period of five (5) Business Days after such Borrower has received written notice of such failure from the Administrative Agent or any Lender, or (B) Section 5.02, 5.03 (as to the legal existence of such Borrower), 5.04, 5.08 or 5.11 or in Article VI, or (ii) any Loan Party (other than the Borrowers) shall fail to perform the financial covenant (Debt to Capitalization Ratio) or negative covenants contained, or incorporated by reference, in the Guaranty;

(d) any Loan Party or any Pledgor shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in clause (a) or (c) of this Article), and such failure shall continue unremedied for a period of 30 days after the earlier of (i) the date that any Responsible Officer of such Loan Party or Pledgor, as the case may be, has actual knowledge thereof or (ii) the date of notice thereof from the Administrative Agent to the Borrowers (which notice will be given at the request of any Lender);

(e) any Loan Party or any Significant Subsidiary of FirstEnergy shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable after giving effect to any applicable grace period;

(f) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (after giving effect to any applicable notice requirement and/or grace period) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption (other than pursuant to provisions permitting the tendering of such Indebtedness from time to time for repurchase or redemption without regard to the occurrence or non-occurrence of any event or condition) or defeasance thereof, prior to its scheduled maturity; provided that this clause (f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the Property securing such Indebtedness;

(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any Loan Party or any Pledgor or the debts of any such Person, 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 any Loan Party or for any Pledgor or for a substantial part of such Person’s assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;

(h) any Loan Party or any Pledgor shall (i) voluntarily commence any proceeding or file 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 contest in a timely and appropriate manner, any proceeding or petition described in clause (g) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for itself 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;

(i) any Loan Party or any Pledgor shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;

(j) one or more judgments for the payment of money in an aggregate amount in excess of (i) with respect to FirstEnergy of any of its Significant Subsidiaries, $50,000,000, and (ii) with respect to any Loan Party (other than FirstEnergy), $15,000,000, shall be rendered against any Loan Party, any Pledgor or any Significant Subsidiary of FirstEnergy and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of such Person to enforce any such judgment;

(k) an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, has resulted or could reasonably be expected to result in a Material Adverse Effect;

(l) any Lien purported to be created under any Security Document shall cease to be, or shall be asserted by any Loan Party or any Pledgor not to be, a valid and perfected first priority Lien on any Collateral subject thereto;

(m) any material provision of this Agreement or any other Loan Document to which any Loan Party or any Pledgor is a party shall for any reason, except to the extent permitted by the express terms hereof or thereof, cease to be valid and binding on or enforceable against such Person or otherwise cease to be in full force and effect, or any Loan Party, any Affiliate of a Loan Party, any Pledgor or a Governmental Authority shall so assert in writing;

(n) (i) FirstEnergy and Boich shall cease to own, directly or indirectly, legally and beneficially, the majority of the Equity Interests of the Loan Parties (other than FirstEnergy) and the Pledgors, or (ii) FirstEnergy and Boich shall cease to control the management of any Loan Party (other than FirstEnergy) or any Pledgor, or (iii) FirstEnergy reduces its current level of ownership, direct or indirect, beneficial or otherwise, in any Loan Party (other than FirstEnergy) or any Pledgor, in each case without prior approval by the Required Lenders; or

(o) Any Change in Law shall occur that has the effect of making the Transactions unauthorized, illegal or otherwise contrary to Requirement of Law with respect to the Loan Parties;

then, and in every such event (other than an event with respect to either Borrower described in clause (g) or (h) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, take any or all of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and/or (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers and/or (iii) instruct the Collateral Agent, in accordance with the terms of the Pledge Agreement, to exercise in respect of the Collateral, in addition to the other rights and remedies provided for herein and in the Security Documents or otherwise available to the Agents or the Lenders, all the rights and remedies of a secured party on default under the Uniform Commercial Code in effect in the State of New York and in effect in any other jurisdiction in which any Collateral is located at that time; and in case of any event with respect to either Borrower described in clause (g) or (h) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers.

ARTICLE VIII
The Agents

Each of the Lenders hereby irrevocably appoints the Agents as their agents and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Required Lenders may at any time, with the consent of the Borrowers (which consent shall not be unreasonably withheld or delayed, and shall not be required if an Event of Default shall have occurred and be continuing), replace the Administrative Agent (it being understood that any such replacement of the Administrative Agent shall be a Person that serves as agent for other credit facilities of a comparable size), provided that the Required Lenders may not replace the Administrative Agent unless, after giving effect to such replacement and each contemporaneous assignment, the Required Lenders or the Borrowers shall have arranged in connection with such replacement that (i) neither the Administrative Agent nor any of its Affiliates shall have outstanding any Loan or Commitment or other obligation of any kind under this Agreement or any other Loan Document, unless such Person shall consent otherwise, and (ii) each of the Administrative Agent and its Affiliates shall have received any required payment in full of all amounts owing to it under or in respect of this Agreement and each other Loan Document. The Lenders may replace the Collateral Agent in accordance with the provisions of the Security Documents.

Any bank serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such bank may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of their respective Affiliates as if it were not an Agent hereunder.

No Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 or in the Security Documents), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to either Borrower that is communicated to or obtained by a bank serving as an Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 or in the Security Documents) or in the absence of its own gross negligence or willful misconduct as determined by non-appealable final judgment of a court of competent jurisdiction. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by either Borrower or a Lender (or communicated by such Agent to any Person), and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to any Agent.

Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for either Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of such Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent.

Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right, subject to the approval of the Borrowers (such approval not to be unreasonably withheld or delayed, and shall not be required upon the occurrence and during the continuance of an Event of Default), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and subject to the approval of the Borrowers (such approval not to be unreasonably withheld or delayed, and shall not be required upon the occurrence and during the continuance of an Event of Default), appoint a successor Administrative Agent, which shall be any commercial bank organized under the laws of the United States of America or any State thereof having a combined capital and surplus and undivided profits of not less than $500,000,000. Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as the Administrative Agent. The Collateral Agent may resign in accordance with the provisions of the Security Documents.

Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

Anything herein to the contrary notwithstanding, no Co-Syndication Agent or Co-Documentation Agent listed on the cover page hereof shall have any rights, powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity as a Lender hereunder.

ARTICLE IX
Miscellaneous

SECTION 9.01. Notices.

(a) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:

(i) if to any Borrower, to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Telephone No. ▇▇▇-▇▇▇-▇▇▇▇; Telecopy No. 406-248-4270), with a copy to each of (A) FirstEnergy Corp., ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer (Telecopy No. 330-384-3772), (B) FirstEnergy Corp., ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Legal (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇, and (C) ▇▇▇▇▇ Companies, LLC, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer (Telecopy No. 614-221-0117);

(ii) if to the Administrative Agent or the Collateral Agent, to Union Bank, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇^▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and

(iii) if to any Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.

(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 and the Collateral Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrowers may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

(c) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. 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.

SECTION 9.02. Waivers; Amendments.

(a) No failure or delay by any Agent or Lender in exercising any right or power hereunder or under any other 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 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 any Loan Document or consent to any departure by either Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or a Borrowing shall not be construed as a waiver of any Default, regardless of whether any Agent or any Lender may have had notice or knowledge of such Default at the time.

(b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Loan Parties or Pledgors (as the case may be) party thereto and the Required Lenders or by such Loan Parties or Pledgors (as the case may be) and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender; (ii) reduce the principal amount of any Loan or reduce the rate of interest thereon, or reduce any fees payable hereunder (other than fees payable to the Agents and the Lead Arranger pursuant to the Fee Letter), without the written consent of each Lender affected thereby; (iii) postpone the scheduled date of payment of the principal amount of any Loan, or any interest thereon, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of termination of any Commitment, without the written consent of each Lender affected thereby; (iv) change Section 2.15(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender; (v) change any of the provisions of this Section or the definition of “Required Lenders” or any other provision of any Loan Document (other than the Security Documents) 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 written consent of each Lender; (vi) change any provisions of any Loan Document (other than the Security Documents) in a manner that by its terms adversely affects the rights in respect of payments of Lenders, without the written consent of each Lender; (vii) release any Collateral or change any provision of any Security Document providing for the release of Collateral, without the written consent of each Lender; (viii) release all or any portion of any Guarantor’s obligations under the Guaranty or change any provision of the Guaranty providing for the release or termination of the Guaranty, without the written consent of each Lender; or (ix) amend, modify or waive any condition precedent set forth in Section 4.01, without the written consent of each Lender; provided further that (A) no such agreement shall amend, modify or otherwise affect the rights or duties of any Agent hereunder without the prior written consent of the affected Agent; and (B) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement of the Lenders may be effected by an agreement or agreements in writing entered into by the Borrowers and the requisite percentage in interest of the affected Lenders. Notwithstanding the foregoing, any provision of this Agreement requiring the consent of a Lender unwilling to provide such consent may be amended by an agreement in writing entered into by the Borrowers, the Required Lenders and the Administrative Agent if (1) by the terms of such agreement the Commitment of each such opposing Lender shall terminate upon the effectiveness of such amendment and (2) at the time such amendment becomes effective, each such opposing Lender receives payment in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under the Loan Documents.

SECTION 9.03. Expenses; Indemnity; Damage Waiver.

(a) The Borrowers jointly and severally agree to pay (i) all reasonable out-of-pocket expenses incurred by the Agents (including due diligence expenses and the reasonable fees, charges and disbursements of counsel for the Agents) in connection with the preparation, negotiation, syndication, execution, delivery and administration of the Loan Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii) all reasonable out-of-pocket expenses incurred by the Agents, the Lead Arranger or any Lender, including the reasonable fees, charges and disbursements of any counsel for any Agent, the Lead Arranger or any Lender, in connection with the enforcement or protection of their respective rights in connection with the Loan Documents whether or not the Effective Date occurs, including their respective rights under this Section, or in connection with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans.

(b) The Borrowers jointly and severally agree to indemnify each Agent, the Lead Arranger and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”), against, and hold each Indemnitee harmless from, any and all losses, claims, damages, costs, liabilities, expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Loan Document or any agreement or instrument contemplated hereby, the performance by the parties to the Loan Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated thereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any actual or alleged presence or release, or threatened release, of Hazardous Materials on or from any Property owned or operated by either Borrower, or any Environmental Liability related in any way to either Borrower, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted primarily from the gross negligence or willful misconduct of such Indemnitee as determined by the final non-appealable judgment of a court of competent jurisdiction.

(c) To the extent that the Borrowers fail to pay any amount required to be paid by the Borrowers to any Agent under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to such Agent such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent in its capacity as such.

(d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO BORROWER SHALL ASSERT, AND EACH BORROWER HEREBY WAIVES, ANY CLAIM AGAINST ANY INDEMNITEE, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE TRANSACTIONS, ANY LOAN OR THE USE OF THE PROCEEDS THEREOF.

(e) All amounts due under this Section shall be payable within ten (10) Business Days after delivery to the Borrowers of a reasonably detailed statement therefor.

SECTION 9.04. 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 assigns permitted hereby, except that the Borrowers may not assign or otherwise transfer any of their respective rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by either Borrower without such consent shall be null and void). 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 and, to the extent expressly contemplated hereby, the Related Parties of the Agents, the Lead Arranger and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Any Lender may assign to one or more 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); provided that (i) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund of any Lender, the Administrative Agent must give its prior written consent to such assignment (which consent shall not be unreasonably withheld), (ii) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund of any Lender, the Borrowers must give their prior written consent to such assignment (which consent shall not be unreasonably withheld), (iii) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund of any Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitments and Loans, the aggregate amount of the Commitments and Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall be in an aggregate amount of not less than $5,000,000 unless each of the Borrowers and the Administrative Agent otherwise consent, (iv) each partial assignment by a Lender of its Commitment and Exposure shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement in respect of its Commitment and Exposure, as the case may be, (v) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500, and (vi) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and provided further that any consent of the Borrowers otherwise required under this paragraph shall not be required if an Event of Default shall have occurred and be continuing or if such assignment be made to FirstEnergy as a result

of its exercise of the Call Option. Subject to acceptance and recording thereof pursuant to paragraph (d) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.14 and 9.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph 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 (e) of this Section.

(c) The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall maintain at one of its offices in California a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount 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 Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. 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.

(d) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), 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 Assumption 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.

(e) Any Lender may, without the consent of the Borrowers 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 (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent 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 pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve any amendment, modification or waiver of any provision of the Loan Documents; provided that 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 the first proviso to Section 9.02(b) or the Security Documents that affects such Participant. Subject to paragraph (f) of this Section, each Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.15(c) as though it were a Lender.

(f) A Participant shall not be entitled to receive any greater payment under Section 2.12 or 2.14 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrowers’ prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.14 unless the Borrowers are notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section 2.14(d) as though it were a Lender.

(g) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, 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. In the case of any Lender that is a fund that invests in bank loans, such Lender may, without the consent of the Borrowers or the Administrative Agent, assign or pledge all or any portion of its rights under this Agreement, including the Loans and Notes or any other instrument evidencing its rights as a Lender under this Agreement, to any holder of, trustee for, or any other representative of holders of, obligations owed or securities issued by such fund, as security for such obligations or securities; provided that any foreclosure or similar action by such trustee or representative shall be subject to the provisions of Section 9.04(b) concerning assignments.

(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers, the option to provide to the Borrowers all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC in connection with its activities as an SPC hereunder any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition,

notwithstanding anything to the contrary in this Section 9.04, any SPC may (i) with notice to, but without the prior written consent of, the Borrowers and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the Borrowers and the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis consistent with the provisions of Section 9.12 any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. The provisions of this Section relating any SPC may not be amended without the written consent of such SPC.

SECTION 9.05. Survival. All covenants, agreements, representations and warranties made by the Borrowers in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that any Agent or Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, 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 is outstanding and unpaid and so long as any Commitment has not expired or terminated. The provisions of Sections 2.12, 2.13, 2.14 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the termination of the Commitments or the termination of this Agreement or any provision hereof.

SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Agents and the Lead Arranger constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Agents and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

SECTION 9.07. Severability. Any provision of this Agreement 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 the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

SECTION 9.08. Right of Setoff. 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, upon any amount becoming due and payable by the Borrowers hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender to or for the credit or the account of either Borrower against any of and all the obligations of the Borrowers now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.

SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.

(a) This Agreement shall be construed in accordance with and governed by the law of the State of New York.

(b) Each of the Borrowers, the Agents and the Lenders hereby irrevocably and unconditionally submits, for itself and its Property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to any Loan Document, 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 in such New York State court or, to the extent permitted by law, in such Federal 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 or any other Loan Document shall affect any right that any Agent or Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against one or both of the Borrowers or their respective Properties in the courts of any other jurisdiction.

(c) Each of the Borrowers, the Agents and the Lenders 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 any other Loan Document in any court referred to in paragraph (b) of this Section. 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 suit, action or proceeding in any such court.

(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

SECTION 9.10. 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 ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

SECTION 9.11. 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 shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

SECTION 9.12. Confidentiality. Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, auditors, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority, (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any permitted assignee of or Participant in, or any prospective permitted assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to either Borrower and its obligations, (g) with the consent of the Borrowers or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to any Agent or Lender on a nonconfidential basis from a source other than either Borrower. For the purposes of this Section, “Information” means all information received from either Borrower relating to a Borrower or its business, other than any such information that is available to any Agent or Lender on a nonconfidential basis prior to disclosure by either Borrower. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.

SECTION 9.14. Patriot Act Notice. Each Lender and the Administrative Agent (for itself and not on behalf of any other party) hereby notifies the Borrowers 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”), it is required to obtain, verify and record information that identifies each Borrower, which information includes the name and address of each Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Borrower in accordance with the Patriot Act.

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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 above written.


SIGNAL PEAK ENERGY, LLC
By:	/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
	Name:	▇▇▇▇▇ ▇. ▇▇▇▇▇▇
	Title:	Secretary and Treasurer


GLOBAL RAIL GROUP, LLC
By:	/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
	Name:	▇▇▇▇▇ ▇. ▇▇▇▇▇▇
	Title:	Secretary and Treasurer