The obligations of the Company under the DIP Facilities (as defined below) will be guaranteed by (x) each of the Company’s direct and indirect domestic subsidiaries that will be debtors and debtors-in-possession (each of such subsidiaries and the Company, a “Debtor”) in proceedings (together with the Company’s Case, the “Cases”) under chapter 11 of the Bankruptcy Code filed contemporaneously and jointly administered with the Company’s Case and (y) Global Center for Energy & Human Development, LLC (“Global Center”) (the persons described in the foregoing clauses (x) and (y), collectively, the “Guarantors”).¹

The Company and the Guarantors are referred to herein as “Loan Parties” and each as a “Loan Party”.

The date of commencement of the Cases is referred to herein as the “Petition Date”.

Certain Prepetition Secured Debt

Facilities:

A/R Facility: That certain Fifth Amended and Restated Receivables Purchase Agreement, dated as of March 25, 2016, by and among P&L Receivables Company, LLC, as seller, the Company, as initial servicer, the sub-servicers party thereto, PNC Bank, National Association, as administrator (the “A/R Agent”) and LC bank, and the other parties thereto (the “A/R Facility Agreement”).

First Lien Credit Agreement: A first lien senior secured term and revolving loan facility made available to the Company pursuant to that certain Amended and Restated Credit Agreement, dated as of September 24, 2013, by and among the Company, the lenders and L/C issuers party thereto (the “Prepetition

Lenders”), Citibank, N.A., as administrative agent (in such capacity, the “Prepetition Administrative Agent”) and swing line lender, and the other agents and arrangers party thereto (as amended, supplemented or otherwise modified prior to the date hereof, the “Prepetition Credit Agreement”).²

Second Lien Notes Indenture: That certain Indenture, dated as of March 16, 2015, among the Company, the subsidiary guarantors party thereto and U.S. Bank National Association, as trustee and collateral agent (as amended, supplemented or otherwise modified prior to the date hereof, the “Second Lien Notes Indenture”), pursuant to which the Company issued $1,000 million aggregate principal amount of its 10% Senior Secured Second Lien Notes due 2022 (the “Second Lien Notes”).

Administrative

Agent:

Sole Lead Arranger

and Book Runner:

Financial accommodations, as follows:

Term Loan Facility: A senior secured superpriority non-amortizing term loan facility in an aggregate principal amount of $500 million (the “Term Facility”; the loans made thereunder, the “Loans”) to be made available to the Company, $200 million of which will be available at Closing after the entry of the Interim Order (as defined below) and $300 million of which will be available after the entry of the final order of the Bankruptcy Court authorizing the DIP Facilities in substantially the form of the Interim Order (as defined below), with only such modifications as are satisfactory to the Administrative Agent (the “Final Order”).

L/C Facility: A letter of credit facility in the amount of $100 million for new letters of credit that shall be cash collateralized in an amount equal to 102% of the face amount of letters of credit issued thereunder (the “L/C Facility”); provided that letters of credit issued under the L/C Facility (each, an “L/C Facility Letter of Credit” and each issuer thereof, an “L/C Issuer”) shall not be issued to replace or backstop any outstanding letters of credit issued under the Prepetition Credit Agreement (as defined below).

Bonding Accommodation Facility: Accommodation for bonding requests by relevant state authorities (“Bonding Requests”) in an aggregate principal amount of $200 million in the form of (or any combination of):

(i) a carve-out from the Collateral (as defined below) with superpriority claim status, subject only to the Carve-Out (as defined below), entitling the authority making any Bonding Request to receive proceeds of Collateral first in priority before distribution to any Lender or other prepetition secured creditor (the “Bonding Carve-Out”); and/or

(ii) a letter of credit facility (the “Bonding L/C Facility and, together with the Bonding Carve-Out, the “Bonding Accommodation Facility”) which shall be cash collateralized in an amount equal to 102% of the face amount of letters of credit issued under the Bonding L/C Facility (each, a “Bonding Letter of Credit”).

Without limiting the foregoing, the Company may obtain additional availability for state bonding requests under the Bonding L/C Facility, the Bonding Carve-Out or the L/C Facility upon approval by the Required Lenders.

The termination date with respect to the DIP Facilities shall be the earliest of (a) the Scheduled Termination Date (as defined below), (b) 45 days after the entry of the Interim Order if the Final Order has not been entered prior to the expiration of such 45-day period, (c) the substantial consummation (as defined in Section 1101 of the Bankruptcy Code and which for purposes hereof shall be no later than the “effective date” thereof) of a plan of reorganization filed in the Cases that is confirmed pursuant to an order entered by the Bankruptcy Court, (d) the acceleration of the loans and the termination of commitments with respect to the DIP Facilities in accordance with the DIP Loan Documents (as defined below) and (e) a sale of all or substantially all of the assets of the Company (or the Company and the Guarantors) pursuant to Section 363 of the Bankruptcy Code.

“Scheduled Termination Date” means the date that is 12 months after the Closing Date (as defined below); provided that such date may, at the election of the Company, be extended by up to an additional 6 months so long as, at the time such extension shall become effective, (w) there shall exist no default under the DIP Loan Documents (as defined below), (x) the representations and warranties of the Loan Parties therein shall be true and correct in all material respects (or in the case of representations and warranties with a “materiality” qualifier, true and correct in all respects) immediately prior to, and after giving effect to, such extension, (y) the Company shall have paid or caused to be paid to the Administrative Agent for the account of each Lender an extension fee in an amount equal to 2.50% of such Lender’s outstanding exposure under the Term Facility at such time and (z) the Company shall have delivered to the Administrative Agent an updated DIP budget covering the additional period to be effected by such extension.

Solely with respect to the Loan Parties, mandatory prepayments of the Loans (and, if applicable, mandatory termination of unused Term Facility commitments) shall be required with 100% of the net cash proceeds from (a) issuance of any indebtedness (with exceptions for permitted indebtedness) and (b) sales or other dispositions (including casualty events) of any assets (excluding (i) sales of inventory in the ordinary course of business and (ii) any sale of an equity interest in Lively Grove Energy Partners, LLC, the owner of the Company’s 5.06% interest in Prairie State Energy Campus Management, Inc., and other exceptions to be agreed) exceeding the Threshold Amount (as defined below). For the avoidance of doubt, (x) there will be no prepayment fee for any mandatory prepayments and (y) none of the “Four Star” assets of the Company or its subsidiaries may be sold or otherwise disposed of without the consent of the Required Lenders (as defined below).

“Threshold Amount” means net cash proceeds in excess of $30 million (in the aggregate) resulting from sales or other dispositions (including casualty events) of any assets (excluding (a) sales of inventory in the ordinary course of business and (b) any sale of an equity interest in Lively Grove Energy Partners, LLC, the owner of the Company’s 5.06% interest in Prairie State Energy Campus Management, Inc., and other exceptions to be agreed).

Facilities, and the obligations of each Guarantor in respect of its guarantee of such obligations, shall, subject to the Carve-Out (as defined below), at all times:

(a) pursuant to Section 364(c)(1) of the Bankruptcy Code, be entitled to superpriority administrative expense claim status in the Case of such Loan Party (the “DIP Superpriority Claims”);

(b) pursuant to Section 364(c)(2) of the Bankruptcy Code, be secured by a perfected first priority security interest and lien on the Collateral of such Loan Party (i) to the extent such Collateral is not subject to valid, perfected and non-avoidable liens as of the Petition Date and (ii) with respect to the Interim Order, excluding claims and causes of action under Chapter 5 of the Bankruptcy Code and proceeds thereof (collectively “Avoidance Actions”) (it being understood that the Final Order shall grant a perfected security interest in proceeds of successful Avoidance Actions for the benefit of the DIP Facilities);

(c) pursuant to Section 364(c)(3) of the Bankruptcy Code, be secured by a perfected junior-priority security interest and lien on the Collateral of such Loan Party to the extent that such Collateral is subject to valid, perfected and unavoidable liens in favor of third parties that were in existence immediately prior to the Petition Date, or to valid and unavoidable liens in favor of third parties that were in existence immediately prior to the Petition Date that were perfected subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code (other than the existing liens that secure obligations of such Loan Party under (i) the Prepetition Credit Agreement or (ii) the Second Lien Notes Indenture, which existing liens will be primed by the liens described in clause (d) below), junior to the priority of such liens in favor of such third parties; and

(d) pursuant to Section 364(d)(1) of the Bankruptcy Code, be secured by a perfected first priority priming security interest and lien on the Collateral of such Loan Party (such security interest and lien, the “Priming Lien”);

in each case to the extent that such Collateral is subject to existing liens that secure the obligations of such Loan Party under (i) the Prepetition Credit Agreement or (ii) the Second Lien Notes Indenture (collectively, the “Primed Liens”).

The Priming Lien (a) shall be senior in all respects to the interests in such property of (i) the Prepetition Lenders under the Prepetition Credit Agreement and of the other “secured parties” referenced therein) (the “Prepetition Credit Agreement Primed Parties”) and the related security documents and (ii) the holders of the Second Lien Notes (the “Second Lien Notes Primed Parties”) under the Second Lien Notes Indenture and the related security agreements and (b) shall also be senior to any liens granted to provide adequate protection in respect of any of the Primed Liens. The Primed Liens shall be primed by and made subject and subordinate to the Priming Liens, but the Priming Liens shall not prime liens, if any, to which the Primed Liens are subject at the time of the commencement of the Cases (other than any such liens that are themselves Primed Liens).

All of the liens described above shall be effective and perfected upon entry of the Interim Order.

In addition, in the case of Global Center, the obligations in respect of its guarantee of the Company’s obligations under the DIP Facilities shall be secured by a perfected first-priority (subject to certain exceptions to be agreed) security interest and lien on its Collateral; provided that the DIP Facilities shall not be secured by, and the Lenders shall not have a lien on, the Designated Global Center Account or any of the funds therein.

“Collateral” means all owned or hereafter acquired assets and property of the Loan Parties (including, without limitation, inventory, accounts receivable (if any), real property, plant, equipment, rights under leases and other contracts, patents, copyrights, trademarks, tradenames and other intellectual property and capital stock of subsidiaries), and the proceeds thereof, subject to customary exceptions to be agreed but to include without limitation, for the avoidance of doubt, all cash and cash equivalents of the Loan Parties and any intercompany loans held by the Loan Parties, subject, in the case of liens on the equity interests of P&L Receivables Company and any intercompany notes issued in connection with the A/R Facility Amendment, to intercreditor arrangements with the A/R Agent. Notwithstanding the foregoing, all “Receivables Assets” (as defined in the Prepetition Credit Agreement) sold or otherwise transferred to P&L Receivables Company in connection with the A/R Facility Agreement shall not constitute Collateral; provided that any such assets that are reconveyed to the Loan Parties pursuant to the terms of the documentation governing the A/R Facility shall become Collateral.

being the “Post-EoD Carve-Out Amount”); provided that nothing herein shall be construed to impair the ability of any party to object to the fees, expenses, reimbursement or compensation described in clauses (iii)(A) or (iii)(B) above, on any grounds.

Notwithstanding the foregoing, the Carve-Out shall not include, apply to or be available for any fees or expenses incurred by any party in connection with, (a) the investigation, initiation or prosecution of any claims, causes of action, adversary proceedings or other litigation (i) against any of the Lenders, the Administrative Agent or the Prepetition Lenders (whether in such capacity or otherwise) or (ii) challenging the amount, validity, perfection, priority or enforceability of or asserting any defense, counterclaim or offset to, the obligations and the liens and security interests granted under the DIP Loan Documents or the Prepetition Credit Agreement, including, in each case, without limitation, for lender liability or pursuant to section 105, 510, 544, 547, 548, 549, 550, or 552 of the Bankruptcy Code, applicable non-bankruptcy law or otherwise; (b) attempts to modify any of the rights granted to the Lenders or the Administrative Agent; (c) attempts to prevent, hinder or otherwise delay any of the Lenders’ or the Administrative Agent’s assertion, enforcement or realization upon any Collateral in accordance with the DIP Loan Documents and the Final Order other than to seek a determination that an event of default has not occurred or is not continuing; or (d) paying any amount on account of any claims arising before the commencement of the Cases unless such payments are approved by an order of the Bankruptcy Court.

For the avoidance of doubt and notwithstanding anything to the contrary herein or in the DIP Loan Documents, the Carve-Out shall be senior to all liens and claims securing the DIP Loan Documents, any adequate protection liens, if any, and the superpriority claims, and any and all other liens or claims securing the DIP Facilities (it being understood and agreed that the Carve-Out shall not apply to the cash-collateralized Bonding Letters of Credit or the cash-collateralized L/C Facility Letters of Credit).

To the extent liens and consents are not available with respect to Material Leases (as defined below), the following protections will apply:

(a) The consent of the Administrative Agent is necessary for any rejection of a Material Lease pursuant to Section 365 of the Bankruptcy Code, which consent shall not be unreasonably withheld, and the Administrative Agent may compel the Company to assume and assign that lease to a replacement lessee of the Administrative Agent’s choosing.

(b) Upon an event of default under the DIP Loan Documents, the Administrative Agent may compel the Company to assume and assign any Real Property Lease, pursuant to Section 365 of the Bankruptcy Code, to a replacement lessee of the Administrative Agent’s choosing , or as collateral securing the DIP Facilities.

(c) The Administrative Agent may credit bid amounts outstanding under the DIP Facilities at any sale or assignment of any Real Property Lease, including sales or assignments compelled by the Administrative Agent.

(d) Any order of the Bankruptcy Court approving assumption of any Real Property Lease must specifically provide that the Company shall be authorized to assign such lease pursuant to and enjoy the protections of Section 365(f) of the Bankruptcy Code.

(e) If, in connection with any compelled assumption of a lease pursuant to paragraph (a), the Company must cure monetary defaults under that lease, the Administrative Agent may pay cure costs with funds posted to any collateral account established under the DIP Facilities.

“Material Lease” shall mean any Real Property Lease or other contractual obligations in respect of Material Leased Real Property.

“Material Leased Real Property” means any Real Property subject to a Real Property Lease with a Loan Party, as lessee, with annual minimum royalties, rents or any similar payment obligations in excess of $1 million in the most recently ended fiscal year.

“Real Property Lease” shall mean any lease, license, letting, concession, occupancy agreement, sublease, farm-in, farm-out, joint operating agreement, easement or right of way to which such Person is a party and is granted a possessory interest in or a right to use or occupy all or any portion of the Real Property (including, without limitation, the right to extract coal, minerals oil, natural gas and other hydrocarbons and their constituents from any portion of Real Property not owned in fee by such Person) and every amendment or modification thereof, including with respect to the Loan Parties, without limitation, the leases with respect to Real Property and any contractual obligation with respect to any of the foregoing.

“Real Property” shall mean, collectively, all right, title and interest of the Company (including, without limitation, any leasehold, mineral estate, or Coal, oil, natural gas or other hydrocarbon and their constituents leasehold) in and to any and all parcels of real property owned or operated by the Company, whether by lease, license or other use agreement, together with, in each case, all Improvements and appurtenant fixtures (including, without limitation, all preparation plants or other Coal processing facilities and loadout and other transportation facilities), easements and other property and rights incidental to the ownership, lease or operation thereof.

Prepetition Credit Agreement Primed Parties. Pursuant to sections 361, 363(e) and 364(d)(1) of the Bankruptcy Code, the parties to Prepetition Credit Agreement whose liens will be primed as described above, and whose collateral (including cash collateral) will be authorized for use by the Loan Parties (collectively, the “Prepetition Credit Agreement Primed Parties”), will receive as adequate protection solely to the extent of the aggregate diminution in value of their first priority liens under the Prepetition Credit Agreement and for the use of cash collateral:

(a) current cash payment of (i) [75%] of the non-default rate interest (in respect of outstanding principal amounts of loans and on the capitalized secured hedge portfolio) and (ii) reasonable fees and expenses of professionals, in each case, to

be paid from the cash collateral of the Prepetition Lenders and subject to recharacterization as principal payments and/or disgorgement to the extent it is determined that the Prepetition Credit Agreement Primed Parties are undersecured,

(b) replacement or, if applicable, new liens on the Collateral that are junior to the liens securing the DIP Facilities (in the same relative priority as the Prepetition Facilities) but senior to the adequate protection liens granted to the Second Lien Notes Primed Parties as described below,

(c) superpriority claims as provided for in section 507(b) of the Bankruptcy Code that are junior to the DIP Superpriority Claims,

(d) a stipulation in the Interim Order and the Final Order that the amount of the “Principal Property Cap” (as defined in the Prepetition Credit Agreement) shall be fixed as of the Petition Date, and

(e) delivery of all reports and notices set forth under “Financial Reporting Requirements” and “Other Reporting Requirements” below, in each case when and as required under the DIP Facilities;

provided that (x) the adequate protection package described in the above paragraphs (a) through (e) may be amended, modified or terminated and (y) the First Lien Adequate Protection Milestones (as defined below) may be amended, modified or extended, in each case, as to the Prepetition Credit Agreement Primed Parties only by order of the Bankruptcy Court or the prior written consent of (i) the Prepetition Credit Agreement Primed Parties holding greater than 50% of the aggregate principal amount of outstanding loans and participations in outstanding letters of credit under the Prepetition Credit Agreement and (ii) the Required Participating DIP Lenders. The milestones described in clauses b, c, d, f and g below in the “Milestones” section shall be referred to as the “First Lien Adequate Protection Milestones”.

Second Lien Notes Primed Parties. Pursuant to sections 361, 363(e) and 364(d)(1) of the Bankruptcy Code, the Second Lien Notes Primed Parties whose liens will be primed as described above, and whose cash collateral will be authorized for use by the Loan Parties, will be entitled to receive, as adequate protection, replacement or, if applicable, new liens on the Collateral that are junior to the liens securing the DIP Facilities (in the same relative priority as the Prepetition Facilities) and to the adequate protection liens granted to the Prepetition Credit Agreement Primed Parties as described above, solely to the extent of the aggregate diminution in value of their liens. For the avoidance of doubt, the Second Lien Notes Primed Parties will not receive cash payments for interest or reimbursement of professional fees.

a.      

b.      

c.      

or interests thereon of such Australian operations to be sold, assigned, abandoned or otherwise disposed of in connection with the reorganization of the Company and the other Loan Parties and (ii) an assessment of the financial impact of the cessation of operations at, or the disposition of, any assets of such Australian operations, if any; provided that the Company shall, not later than 60 days following the Petition Date, deliver to the Administrative Agent, which shall upon the request of a Lender deliver to such Lender, a written update setting forth in reasonable detail the Company’s progress in formulating the Australian Business Plan and any material developments with respect thereto since the Petition Date.

c.      Not later than 180 days following the Petition Date, the Bankruptcy Court shall have entered a final determination of the “Principal Property Cap” and which of the Company’s U.S. Mine complexes are “Principal Properties” (as such terms are defined in the Prepetition Credit Agreement) of the Prepetition Lenders; provided that a declaratory judgment action seeking such a determination shall be commenced by the Company by the date that is 30 days after the Petition Date.

d.      Not later than 210 days following the Petition Date, the Company shall file with the Bankruptcy Court (x) a plan of reorganization that provides for the payment in full in cash and full discharge of the Loan Parties’ obligations under the DIP Facilities at emergence and for full releases of the Lenders, the L/C Issuers and the Administrative Agent (each in their capacities as such) that are customarily contained in a plan of reorganization (an “Acceptable Plan of Reorganization”) and (y) a disclosure statement with respect thereto.

e.      Not later than 270 days following the Petition Date, the Bankruptcy Court shall enter an order approving a disclosure statement with respect to an Acceptable Plan of Reorganization.

f.       Not later than 330 days following the Petition Date, the Bankruptcy Court shall enter an order confirming an Acceptable Plan of Reorganization.

g.      Not later than 360 days following the Petition Date, the confirmed Acceptable Plan of Reorganization shall be effective.

Negative

Covenants:

a.      Limitations on liens.

b.      [Limitations on investments (including a $250 million cap on investments in the Debtors’ foreign subsidiaries in support of the Company’s foreign operations, subject to increase of up to $200 million upon the consent of the

Required Lenders (as defined below), which investments shall be required to be made by Global Center in the form of a new secured intercompany loan (the “Global Center Intercompany Loan”).⁷]

c.      Limitations on indebtedness.

d.      Limitations on fundamental changes, including mergers and transfers of all or substantially all assets.

e.      Limitations on asset dispositions (including sale-leaseback transactions and dispositions to non-Loan Parties).

f.       Limitations on restricted payments (including (i) payments on account of equity interests, (ii) payments of junior or subordinated debt and (iii) restricted investments).

g.      Limitations on changes in nature of business.

h.      Limitations on burdensome agreements.

i.       Limitations on transactions with affiliates.

j.       Limitations on use of proceeds (including with respect to margin regulations and anti-corruption, sanctions and terrorism laws).

k.      Limitations on negative pledge clauses.

l.       Limitations on use of cash, including funding of non-Debtor subsidiaries, to be agreed.

m.     Limitations on modifications of organizational documents and other indebtedness.

n.      Limitations on bonding superpriority claims (other than in compliance with the terms of the DIP Loan Documents).

o.      Limitations on the activities of Global Center (as set forth under “Foreign Funding” below).

Financial

Covenants: ⁸

The DIP Facilities will contain only the following financial covenants: ⁹

a.      Maximum cumulative capital expenditures of the Loan Parties, to be tested monthly; such covenant levels to be set with a [●]% variance from the initial DIP budget.

b.      Minimum cumulative consolidated EBITDA (to be defined in the DIP Loan Documents) of the Loan Parties, to be tested monthly; such covenant levels to be set with a [●]% variance from the initial DIP budget.

c.      Minimum Liquidity (as defined below) of the Loan Parties of $[●], to be tested at all times.

Financial

Reporting

Requirements:

The Company shall provide the Administrative Agent:

(a) commencing with the month ending May 31, 2016, monthly unaudited consolidated financial statements of the Company and its subsidiaries (together with consolidating financial statements of the Loan Parties, the Australian subsidiaries, and all other subsidiaries) within 20 days after the end of each fiscal month, certified by the Company’s chief financial officer, chief accounting officer or treasurer;

(b) quarterly unaudited consolidated financial statements of the Company and its subsidiaries (together with consolidating financial statements of the Loan Parties, the Australian subsidiaries, and all other subsidiaries) within 45 days of quarter-end for the first 3 fiscal quarters of the fiscal year, certified by the Company’s chief financial officer, chief accounting officer or treasurer;

(c) annual audited consolidated financial statements of the Company (together with consolidating financial statements of the Loan Parties, the Australian subsidiaries, and all other subsidiaries) and its subsidiaries within 90 days of year-end, certified with respect to such consolidated statements by Ernst & Young or other independent certified public accountants reasonably acceptable to the Administrative Agent;

(d) copies of all reports on Form 10-K, 10-Q or 8-K filed by the Company or its subsidiaries with the Securities and Exchange Commission;

(e) 13-week cash flow forecasts, on a rolling 13-week basis, updated on a bi-weekly basis; and

(f) promptly after delivery thereof to Global Center, copies of any “Cash Flow Projections” delivered pursuant to the Global Center Intercompany Loan.

a.      Failure to pay principal, interest or any other amount when due.

b.      Representations and warranties incorrect in any material respect when made or deemed made.

c.      Failure to comply with covenants (including milestones).

d.      Cross-default to payment defaults on other indebtedness (in the case of Loan Parties other than Global Center, to the extent incurred post-petition), or default or event of default with respect to other indebtedness (in the case of Loan Parties other than Global Center, to the extent incurred post-petition) if the effect is to accelerate or permit acceleration in excess of an amount to be mutually agreed upon, and cross-acceleration to any material indebtedness (in the case of Loan Parties other than Global Center, to the extent incurred post-petition).

e.      Judgments (in the case of Loan Parties other than Global Center, to the extent incurred post-petition) in excess of $10 million that is not stayed, reversed, overturned, withdrawn or settled for a lower amount within five days of such judgment.

f.       The occurrence of certain ERISA events, other than events relating to claims of withdrawal liability from multiemployer pension plans, if any, that result in liabilities in an amount in excess of $10 million that are not reduced, overturned, withdrawn or settled for a lower amount within five days of the occurrence of such events.

g.      Actual or asserted (by any Loan Party or any affiliate thereof) invalidity or impairment of any DIP Loan Document (including the failure of any lien to remain perfected).

h.      Change of ownership or control.

i.       Invalidity of DIP Loan Documents or DIP Collateral Documents.

j.       (i) The entry of an order dismissing any of the Cases or converting any of the Cases to a case under chapter 7 of the Bankruptcy Code, or any filing by the Company of a motion or other pleading seeking entry of such an order;

(ii) a trustee, responsible officer or an examiner under Bankruptcy Code section 1104 (other than a fee examiner) is appointed or elected in the Company’s Case, the Company applies for, consents to, or acquiesces in, any such appointment, or the Bankruptcy Court shall have entered an order providing for such appointment, in each case without the prior written consent of the Lenders in their sole discretion;

(iii) the entry of an order staying, reversing, vacating or otherwise modifying the Interim Order or the Final Order, in each case in a manner adverse in any material respect to the Administrative Agent or the Lenders, or the filing by the Company of an application, motion or other pleading seeking entry of such an order;

(iv) the entry of an order in any of the Cases appointing an examiner having expanded powers (beyond those set forth under Sections 1106(a)(3) and (4) of the Bankruptcy Code);

(v) [reserved];

(vi) the entry of an order (that is not otherwise stayed, reversed, overturned, withdrawn or settled within five days of the entry of such order) in any of the Cases granting relief from any stay of proceeding (including, without limitation, the automatic stay) so as to allow a third party to proceed against any material assets of the Loan Parties in excess of $10 million.

(vii) the entry of a final non-appealable order in the Cases charging any of the Collateral under Section 506(c) of the Bankruptcy Code against the Lenders without the consent of the Administrative Agent, or the commencement of other actions that is materially adverse to the Administrative Agent’s or the Lenders’ rights and remedies under the applicable DIP Facility in any of the Cases or inconsistent with the applicable DIP Loan Documents. For the avoidance of doubt, nothing in this subclause (vii) shall relate to charging of any collateral of the Prepetition Lenders under Section 506(c) of the Bankruptcy Code;

(viii) the entry of an order in any of the Cases seeking authority to obtain financing under Section 364 of the Bankruptcy Code (other than the DIP Facilities or in the ordinary course of the Loan Parties’ businesses), unless such financing would repay in full in cash all obligations under the DIP Facilities upon consummation thereof;

(ix) the entry of an order in any of the Cases granting adequate protection to any other person, subject to customary exceptions to be mutually agreed;¹⁰ or

(x) the filing or support of any pleading by any Loan Party seeking, or otherwise consenting to, any of the matters set forth in clauses (i) through (ix) above.

k.      The making of any payments in respect of prepetition obligations other than (i) as permitted by the Interim Order or the Final Order, (ii) as permitted by any “first day” orders reasonably satisfactory to the Administrative Agent or (iii) as permitted by any other order of the Bankruptcy Court in amounts reasonably satisfactory to the Administrative Agent.

l.       Use of the Collateral, including without limitation cash collateral, in a manner inconsistent with any budgets submitted pursuant to a cash collateral order.

m.     The entry of the Final Order shall not have occurred within 45 days after entry of the Interim Order.

n.      An order of the Bankruptcy Court granting, other than in respect of the DIP Facilities and the Carve-Out or the Bonding Carve Out or as otherwise permitted under the applicable DIP Loan Documents, any claim entitled to superpriority administrative expense claim status in the Cases pursuant to Section 364(c)(1) of the Bankruptcy Code pari passu with or senior to the claims of the Administrative Agent and the Lenders under the DIP Facilities, or the filing by the Company of a motion or application seeking entry of such an order.

o.      Other than with respect to the Carve-Out or the Bonding Carve Out and the liens provided for in the DIP Facilities or in connection with the A/R Facility Agreement, the Company shall create or incur, or the Bankruptcy Court enters an order granting, any claim that is pari passu with or senior to any liens under the DIP Facilities, the adequate protection liens and adequate protection obligations granted under the Interim Order or the Final Order.

p.      Noncompliance by any Loan Party or any of its subsidiaries with the terms of the Interim Order or the Final Order.

q.      The Loan Parties or any of their subsidiaries, or any person claiming by or through the Loan Parties any of their subsidiaries, shall obtain court authorization to commence, or shall commence, join in, assist or otherwise participate as an adverse party in any suit or other proceeding against the Administrative Agent or any of the Lenders relating to the DIP Facilities, unless such suit or other proceeding is in connection with the enforcement of the DIP Loan Documents against the Administrative Agent or Lenders.

r.       A plan of reorganization shall be confirmed in any of the Cases that is not an Acceptable Plan of Reorganization, or any order shall be entered that dismisses any of the Cases and does not provide for termination of the unused commitments under the DIP Facilities and payment in full in cash of the Loan Parties’ obligations under the DIP Facilities, or any of the Loan Parties or any of their subsidiaries shall file, propose, support, or fail to contest in good faith the filing or confirmation of such a plan or the entry of such an order.

s.      The Company shall file any motion seeking authority to consummate the sale of assets of any Loan Party (other than any such sale that is permitted under the DIP Loan Documents) pursuant to Section 363 of the Bankruptcy Code having a value in excess of $15 million, without the consent of the Administrative Agent and the Required Lenders, or the Company shall file (or fail to oppose) any motion seeking an order authorizing the sale of all or substantially all of the assets of the Loan Parties (unless such sale would result in the repayment in full in cash of all obligations under the DIP Facilities upon consummation thereof).

t.       Bankruptcy or insolvency of Global Center.

The Company and each Guarantor shall jointly and severally pay or reimburse the Administrative Agent and the Arranger for all reasonable, documented, out-of-pocket costs and expenses incurred by the Administrative Agent and the Arranger (including reasonable attorneys’ fees and expenses) in connection with (i) the preparation, negotiation and execution of the DIP Loan Documents; (ii) the syndication and funding of the Loans and any issuance of Bonding Letters of Credit or L/C Facility Letters of Credit; (iii) the creation, perfection or protection of the liens under the DIP Loan Documents (including all search, filing and recording fees); and (iv) the ongoing administration of the DIP Loan Documents (including the preparation, negotiation and execution of any amendments, consents, waivers, assignments, restatements or supplements thereto), including, for the avoidance of doubt, the fees and expenses of Davis Polk & Wardwell LLP, Centerview Partners LLC and Zolfo Cooper LLC.

The Company and each Guarantor shall jointly and severally pay or reimburse all reasonable, documented, out-of-pocket expenses costs and expenses of the Participating DIP Lenders, including but not limited to reasonable legal fees and expenses (the reasonable fees and expenses of Kramer Levin Naftalis & Frankel LLP, Pachulski Stang Ziehl & Jones LLP, Kirkland & Ellis LLP, O’Melveny & Myers LLP, local counsel, and counsel in Australia) and reasonable fees and expenses of any other advisors (including but not limited to the reasonable fees and expenses of Houlihan Lokey, Inc. and Ducera Partners) incurred in connection with any aspect of the Cases, including in connection with the CNTA dispute, the DIP Facilities, and in preparation of the Cases.

The Company and each Guarantor further agrees to jointly and severally pay or reimburse the Administrative Agent and each of the L/C Issuers and (subject to the limitations set forth in this sentence) the Lenders for all reasonable, documented, out-of-pocket costs and expenses (including (A) reasonable attorneys’ and financial advisors’ fees and expenses incurred by the

Administrative Agent and the L/C Issuers and (B) solely upon and after an event of default, reasonable attorneys’ fees for the Lenders [in an amount not to exceed $5 million]¹¹), in each case in connection with (i) the enforcement of the DIP Loan Documents; (ii) any refinancing or restructuring of the DIP Facilities in the nature of a “work-out”; and (iii) any legal proceeding relating to or arising out of the Facilities or the other transactions contemplated by the DIP Loan Documents.

The DIP Loan Documents will contain customary indemnification provisions (including coverage of environmental liabilities) by the Company and each Guarantor (jointly and severally) in favor of the Administrative Agent, the Arranger, each Lender, each L/C Issuer and each of their respective affiliates and the respective officers, directors, employees, agents, advisors, attorneys and representatives of the foregoing.

Required

Participating DIP

Lenders

Governing Law

and Submission to Exclusive

Jurisdiction:

Counsel to

Administrative

Agent:

Term Facility

Interest Rates:

Loans will bear interest, at the option of the Company, at one of the following rates:

(i) the Applicable Margin (as defined below) plus the Base Rate, payable monthly in arrears; or

Administrative

Agent and

Arranger Fees

Bonding

Letter of

Credit Fees:

Term Facility

Upfront Fee: