a Delaware limited liability company,
a Delaware limited liability company,
as Borrowers,
as Co-Syndication Agents,
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK and
U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agents,
as Administrative Agent and Collateral Agent
as Sole Lead Arranger and Sole Bookrunner
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 RataTreatment; 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 |
i
(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 |
ii
(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
Definitions
LEVEL 2 | LEVEL 3 | |||||||||||
LEVEL 1 | Ratings lower than Level 1 | Ratings lower than BBB- | ||||||||||
Ratings at least BBB by | but at least BBB- by S&P | by S&Pand Baa3 by | ||||||||||
BASIS FOR PRICING | S&Por Baa2 by Moody’s. | or Baa3 by Moody’s. | Moody’s. | |||||||||
Applicable Margin for Eurodollar Loans | 2.00 | % | 2.25 | % | 3.00 | % | ||||||
Applicable Margin for ABR Loans | 1.00 | % | 1.25 | % | 2.00 | % |
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
The Credits
17
18
19
20
21
22
23
24
25
26
27
28
29
30
Representations and Warranties
31
32
33
34
35
36
37
Conditions Precedent
38
39
Affirmative Covenants
40
41
42
43
Negative Covenants
44
45
46
47
48
Events of Default
49
50
The Agents
51
52
53
Miscellaneous
54
55
56
57
58
59
60
61
62
63
SIGNAL PEAK ENERGY, LLC | ||||
By: | /s/ Brian T. Murphy | |||
Name: | Brian T. Murphy | |||
Title: | Secretary and Treasurer |
GLOBAL RAIL GROUP, LLC | ||||
By: | /s/ Brian T. Murphy | |||
Name: | Brian T. Murphy | |||
Title: | Secretary and Treasurer |
S-1
UNION BANK, N.A., as Administrative Agent, Collateral Agent and a Lender | ||||
By: | /s/ Jeff Fesenmaier | |||
Name: | Jeff Fesenmaier | |||
Title: | Vice President |
S-2
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH, as a Lender | ||||||
By: | /s/ Alex Mayral | /s/ Michael Oka | ||||
Name: | Alex Mayral | Michael Oka | ||||
Title: | V. P. | Executive Director |
S-3
CIBC INC., as a Lender | ||||
By: | /s/ Robert W. Casey, Jr. | |||
Name: | Robert W. Casey, Jr. | |||
Title: | Executive Director |
S-4
COBANK, ACB, as a Lender | ||||
By: | /s/ Josh Batchelder | |||
Name: | Josh Batchelder | |||
Title: | Vice President |
S-5
COMERICA BANK, as a Lender | ||||
By: | /s/ Brandon Welling | |||
Name: | Brandon Welling | |||
Title: | Assistant Vice President |
S-6
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender | ||||
By: | /s/ Dixon Schultz | |||
Name: | Dixon Schultz | |||
Title: | Director | |||
By: | /s/ Sharada Manne | |||
Name: | Sharada Manne | |||
Title: | Director |
S-7
FIFTH THIRD BANK, as a Lender | ||||
By: | /s/ Martin H. McGinty | |||
Name: | Martin H. McGinty | |||
Title: | Vice President |
S-8
FIRSTMERIT BANK, N.A., as a Lender | ||||
By: | /s/ Robert G. Morlan | |||
Name: | Robert G. Morlan | |||
Title: | Senior Vice President |
S-9
ROYAL BANK OF CANADA, as a Lender | ||||
By: | /s/ Meredith Majesty | |||
Name: | Meredith Majesty | |||
Title: | Authorized Signatory |
S-10
SOVEREIGN BANK, as a Lender | ||||
By: | /s/ Robert D. Lanigan | |||
Name: | Robert D. Lanigan | |||
Title: | Senior Vice President |
S-11
U.S. BANK NATIONAL ASSOCIATION, as a Lender | ||||
By: | /s/ Eric J. Cosgrove | |||
Name: | Eric J. Cosgrove | |||
Title: | Vice President |
S-12
RBC BANK (USA), as a Lender | ||||
By: | /s/ Richard Marshall | |||
Name: | Richard Marshall | |||
Title: | Market Executive — National Division |
S-13
Lender | Commitment Amount | |||
Union Bank, N.A. | $ | 55,000,000.00 | ||
Sovereign Bank | $ | 52,500,000.00 | ||
CoBank, ACB | $ | 52,500,000.00 | ||
Credit Agricole Corporate and Investment Bank | $ | 30,000,000.00 | ||
U.S. Bank National Association | $ | 30,000,000.00 | ||
Banco Bilbao Vizcaya Argentaria, S.A. New York Branch | $ | 30,000,000.00 | ||
CIBC Inc. | $ | 20,000,000.00 | ||
Comerica Bank | $ | 20,000,000.00 | ||
Fifth Third Bank | $ | 20,000,000.00 | ||
Royal Bank of Canada | $ | 15,000,000.00 | ||
RBC Bank (USA) | $ | 15,000,000.00 | ||
FirstMerit Bank, N.A. | $ | 10,000,000.00 |
100 Portal Drive
Roundup, MT 59072
A Member of Payne Financial Group, Inc.
Senior Vice President
Client Account Manager
Service Account Manager
Commercial Property Coverage | 3 | |||
Commercial General Liability Coverage | 5 | |||
Commercial Pollution Liability Coverage | 7 | |||
Commercial Auto Coverage | 8 | |||
Commercial Equipment Coverage | 10 | |||
Commercial Umbrella Coverage | 16 | |||
Commercial Excess Coverage | 19 |
Policy Period: | 7/16/2010 — 7/16/2011 | |
Insurance Company: | Federal Insurance Company | |
Schedule of Named Insureds: | An entity must be named to receive coverage under the policy Signal Peak Energy LLC Global Rail Group LLC |
Loc. No. 1 — 100 Portal Drive Roundup MT 59072
Bldg No. | Description | |
4 | Building #4-Shop | |
2 | Building #2-Office (house) | |
6 | Pipe-Personal Property of Others | |
7 | Office/Bathhouse | |
8 | Shop and Warehouse | |
9 | Coal Prep Plant |
Bldg No. | Description | |
1 | Dwelling — Tenant Occupied |
Bldg | Agreed | |||||||||||||
No. | Subject of Insurance | Valuation | Amt. | Deductible | Limit | |||||||||
2 | Building-Office (house) | Replacement Cost | Yes | $ | 2,500 | $ | 118,000 | |||||||
4 | Building-Shop | Replacement Cost | Yes | $ | 2,500 | $ | 53,000 | |||||||
7 | Building-Office/Bathhouse | Replacement Cost | Yes | $ | 50,000 | $ | 1,500,000 | |||||||
7 | Business Personal Property | Replacement Cost | Yes | $ | 50,000 | $ | 350,000 | |||||||
8 | Building-Shop and Warehouse | Replacement Cost | Yes | $ | 50,000 | $ | 800,000 | |||||||
8 | Business Personal Property | Replacement Cost | Yes | $ | 50,000 | $ | 400,000 | |||||||
9 | Building-Coal Prep Plant | Replacement Cost | Yes | $ | 100,000 | $ | 65,850,000 |
Bldg. | Agreed | |||||||||||||
No. | Subject of Insurance | Valuation | Amt. | Deductible | Limit | |||||||||
1 | Building — Dwelling | Replacement Cost | Yes | $ | 5,000 | $ | 100,000 |
Page 3
Covered Causes of Loss: | Special causes of loss subject to policy exclusions | |
Exclusions: | Refer to policy for exclusions | |
Coverage Modifications: | Refer to policy for specific information pertaining to these modifications |
Description | Limit | Deductible(*) | ||||||
Earthquake | $ | 15,000,000 | $ | 100,000 | ||||
Flood | $ | 15,000,000 | $ | 100,000 | ||||
Personal Property Any Other Location | $ | 250,000 | $ | 25,000 | ||||
Transit Coverage-Personal Property | $ | 1,000,000 | $ | 50,000 | ||||
Blanket Business Income/Extra Expense — Above ground only | $ | 50,000,000 | 30 day waiting period | |||||
Business Income — Dependent Business Premises | $ | 25,000 | $ | 2,500 | ||||
Business Income — Fees | $ | 5,000 | $ | 2,500 | ||||
Business Income — Loss of Utilities | $ | 15,000 | $ | 2,500 | ||||
Business Income — Pollutant Cleanup or Removal | $ | 5,000 | $ | 2,500 | ||||
Business Income — Newly Acquired Premises | $ | 100,000 | $ | 2,500 | ||||
Blanket Limit includes-Accounts Receivable, Electronic Data Processing Property, Valuable Papers, Extra Expense, Personal Property of Others & Employees, Leasehold Interest — Undamaged Tenants’ Improvements & Betterments | $ | 100,000 | $ | 2,500 | ||||
Debris Removal | $ | 50,000 | $ | 2,500 | ||||
EDP Exhibition, Fair, Tradeshow | $ | 2,500 | $ | 2,500 | ||||
Personal Property Exhibition, Fair, Tradeshow | $ | 2,500 | $ | 2,500 | ||||
Fine Arts — Exhibition, Fair or Trade Show | $ | 2,500 | $ | 2,500 | ||||
Fine Arts | $ | 5,000 | $ | 2,500 | ||||
Fire Department Service Charge | $ | 25,000 | $ | 2,500 | ||||
Installation Any Job Site | $ | 1,000 | $ | 2,500 | ||||
Installation Coverage — In Transit | $ | 1,000 | $ | 2,500 | ||||
Accounts Receivable in Transit | $ | 10,000 | $ | 2,500 | ||||
EDP Property in Transit | $ | 10,000 | $ | 2,500 | ||||
Fine Arts in Transit | $ | 1,000 | $ | 2,500 | ||||
Valuable Papers in Transit | $ | 10,000 | $ | 2,500 | ||||
Inventory or Appraisals | $ | 5,000 | $ | 2,500 | ||||
Loss Prevention Expenses | $ | 5,000 | $ | 2,500 | ||||
Money And Securities On Premises | $ | 10,000 | $ | 2,500 | ||||
Money And Securities Off Premises | $ | 5,000 | $ | 2,500 | ||||
Trees, Shrubs & Plants or lawns — outdoor | $ | 25,000 | $ | 2,500 | ||||
Pollutant Cleanup and Removal | $ | 25,000 | $ | 2,500 | ||||
Exclusion — Building Under Construction | ||||||||
Newly Acquired or Constructed Building | $ | 1,000,000 | $ | 2,500 | ||||
Newly Acquired Personal Property | $ | 500,000 | $ | 2,500 | ||||
Newly Acquired Electronic Data Processing Equipment | $ | 250,000 | $ | 2,500 | ||||
Newly Acquired Electronic Data Processing Media | $ | 25,000 | $ | 2,500 | ||||
Newly Acquired Electronic Data Processing Media Duplicates | $ | 25,000 | $ | 2,500 | ||||
Newly Acquired Telephone Equipment | $ | 25,000 | $ | 2,500 | ||||
Newly Acquired Fine Arts | $ | 10,000 | $ | 2,500 | ||||
Personal Property Of Others-Pipe | $ | 60,000 | $ | 2,500 |
* | The policy deductible applies unless a specific deductible is shown. |
Page 4
Policy Period: | 7/16/2010 – 7/16/2011 | |
Insurance Company: | Federal Insurance Company | |
Schedule of Named Insureds: | An entity must be named to receive coverage under the policy Signal Peak Energy LLC Global Rail Group LLC |
Loc. No. 1 — 100 Portal Drive Roundup MT 59072
Bldg No. | Description | |
4 | Building #4-Shop | |
2 | Building #2-Office (house) | |
7 | Office/Bathhouse | |
8 | Shop and Warehouse | |
9 | Coal Prep Plant |
Bldg No. | Description | |
1 | Dwelling — Tenant Occupied |
Limits of Insurance | ||||
General Aggregate | $ | 2,000,000 | ||
Products/Completed Operations Aggregate | $ | 1,000,000 | ||
Personal and Advertising Injury | $ | 1,000,000 | ||
Each Occurrence | $ | 1,000,000 | ||
Damage to Rented Premises | $ | 1,000,000 | ||
Medical Expense | $ | 10,000 |
Coverage Trigger: | General Liability — Occurrence | |
Employee Benefits — When Claim is Made |
Coverage | Amount | Deductible Type | Deductible Basis | |||||
General Liability | $ | 5,000 | Per Claim | Property Damage |
Exclusions: | Refer to policy for exclusions |
Page 5
Coverage Modifications: | See policy for specific information pertaining to these modifications |
Description | Occurrence | Aggregate | Deductible | |||||||||
Employee Benefits Liability-Retroactive Date 7/16/08 | $ | 1,000,000 | $ | 1,000,000 | $ | 1,000 | ||||||
Blanket Waiver of Subrogation — for ongoing operations only | ||||||||||||
Exclusion-Subsidence | ||||||||||||
Professional Liability Exclusion | ||||||||||||
Exclusion-Asbestos, Silica & Similar Compounds Including Mixed Dust | ||||||||||||
Who is Insured-Designated Person or Organization | ||||||||||||
Personal And Advertising Injury — Aggregate | $ | 1,000,000 | ||||||||||
Non Accumulation of Limits of Insurance | ||||||||||||
Additional Insured — lessor of leased equipment | ||||||||||||
Notice of cancellation — 90 days other than 10 days for non-pay | ||||||||||||
Employers Liability Total Exclusion |
Audit Basis: | Annual |
Loc. | Class | Last Year | ||||||||||||
No. | Code | Class Description | Rating Basis | Exposure | Exposure | |||||||||
1 | 00160-01 | Coal Mining — Surface | Raw Tons | If Any | If Any | |||||||||
1 | 00160-02 | Coal Mining — Underground | Raw Tons | 12,000,000 | 11,500,000 | |||||||||
1 | 00160-03 | Clean Production Processing | Clean Ton | 9,137,000 | 9,660,000 | |||||||||
1 | 00176-01 | Employee Benefits Liability | Employees | 225 | 154 | |||||||||
1 | 91581 | Contractors — Subcontracted Work (Not Buildings) | Cost of Work | 2,000,000 | If Any | |||||||||
3 | 63010 | Dwellings — One-Family (Lessor’s Risk Only) | Units | 1 | 1 | |||||||||
1 | 97223 | Machinery or Equipment — NOC — Installation, Service, Repair | Payroll | If Any | If Any |
Page 6
Policy Period: | 7/16/2010 – 7/16/2011 | |
Insurance Company: | Federal Insurance Co. | |
Schedule of Named Insureds: | An entity must be named to receive coverage under the policy Signal Peak Energy LLC Global Rail Group LLC |
Loc No. 1 — 100 Portal Road Roundup MT 59072
Limits of Insurance | ||||
General Aggregate | $ | 1,000,000 | ||
Each Pollution Incident | $ | 1,000,000 |
Coverage | Ded. | Deductible Type | ||||
Pollution Liability | $ | 10,000 | When Claim is Made |
Exclusions: | Refer to policy for exclusions | |
Coverage Modifications: | See policy for specific information pertaining to these modifications |
Description | ||||
Exclusion — Asbestos | ||||
Exclusion — Biological Agents — Total | ||||
Exclusion — Water Operations | ||||
Retroactive Date: July 16, 2008 | ||||
Cap on Certified Terrorism Losses |
Audit Basis: | Annual |
Page 7
Policy Period: | 7/16/2010 – 7/16/2011 | |
Insurance Company: | Federal Insurance Co. | |
Schedule of Named Insureds: | An entity must be named to receive coverage under the policy | |
Signal Peak Energy LLC | ||
Global Rail Group LLC |
Covered | ||||||||
Coverage | Auto Symbol | Limits of Insurance | ||||||
Liability | 1 | $ | 1,000,000 | Each Accident | ||||
Medical Payment | 7 | $ | 5,000 | Per Person | ||||
Uninsured Motorist | 7 | $ | 350,000 | Per Accident | ||||
Underinsured Motorists | 7 | $ | 350,000 | Per Accident | ||||
Physical Damage — Comprehensive | 7 8 | Valuation: | ACV or Cost of Repair | |||||
Deductible: | See attached schedule | |||||||
Physical Damage — Collision | 7 8 | Valuation: | ACV or Cost of Repair | |||||
Deductible: | See attached schedule |
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | ||||||||
Any Auto | Owned Autos Only | Owned Private Passenger Autos Only | Owned Autos other than Private Passenger Autos Only | Owned Autos Subject to No- Fault | Owned Autos Subject to Compulsory Uninsured Motorists Laws | Specifically Described Autos Only | Hired Autos Only | Nonowned Autos Only |
Exclusions: | Refer to policy for exclusions | |
Coverage Modifications: | See policy for specific information pertaining to these modifications |
Description | ||
Blanket Addtl Insd-by written contract for interest of lessor | ||
Ninety Day Notice of Cancellation except 10 day for non-pay of premium | ||
Fellow Employee Coverage | ||
Blanket Waiver of Subrogation — required by contract only | ||
Employees as Insureds |
Collision Deductible: $1000
Page 8
Veh | Comp. | Coll. | ||||||||||||||||||
# | Year | Make | Model | Vehicle I.D. Number | City | St. | Ded. | Ded. | ||||||||||||
1 | 2000 | Chevrolet(Engr-Voice) | 1500 | 1GCEK19T1YE148921 | Billings | MT | $ | 1,000 | $ | 1,000 | ||||||||||
2 | 2006 | GMC (DeMichiei) | Denali | 1 GKET63M662142255 | Billings | MT | $ | 1,000 | $ | 1,000 | ||||||||||
3 | 2005 | GMC (Surface) | 1500 | 1GTEK14T95Z260099 | Billings | MT | $ | 1,000 | $ | 1,000 | ||||||||||
4 | 2005 | GMC (Surface) | 1500 | 1GTEK14T25Z309739 | Billings | MT | $ | 1,000 | $ | 1,000 | ||||||||||
5 | 2005 | GMC (Surface) | 1500 | 1 GTEK14T45Z349031 | Billings | MT | $ | 1,000 | $ | 1,000 | ||||||||||
6 | 2005 | GMC (Surface) | 1500 | 1GTEK14T05Z266843 | Billings | MT | $ | 1,000 | $ | 1,000 | ||||||||||
7 | 2006 | Chevrolet (Ochsner) | Trailblazer | 1GNDT13S362196371 | Billings | MT | $ | 1,000 | $ | 1,000 | ||||||||||
8 | 2006 | Chevrolet (Viren) | Trailblazer | 1GNDT13S762203905 | Billings | MT | $ | 1,000 | $ | 1,000 | ||||||||||
9 | 1997 | GMC (Engr) | Yukon | 1GKEK13R9VJ710133 | Billings | MT | ||||||||||||||
10 | 2006 | Chevrolet (Valentes) | Trailblazer | 1GNDT13S062194402 | Billings | MT | $ | 1,000 | $ | 1,000 | ||||||||||
11 | 2008 | Chevrolet (Roland) | Suburban | 3GNFK16328G101017 | Billings | MT | $ | 1,000 | $ | 1,000 |
License | ||||||||||
No. | Driver Name | Date of Birth | License Number | State | ||||||
1 | Robert Ochsner | 5/19/1953 | 0501919534119 | MT | ||||||
2 | Darrell H. Roland | 4/27/1954 | R453135298323 | MD | ||||||
3 | Edward A Viren | 1/22/1957 | 106885254 | WY | ||||||
4 | John DeMichiei | 2/21/1949 | D520429585136 | MD | ||||||
5 | Bradley Allen Voise | 2/21/1955 | 0202419554121 | MT | ||||||
6 | Magnus Lopes Valente | 9/12/1963 | IAA202601LGN | Int’l | ||||||
7 | Byron Kinn | 5/19/1968 | 0503119684119 | MT |
Page 9
Policy Period: | 7/16/2010 – 7/16/2011 | |
Insurance Company: | Federal Insurance Company |
Maximum Limit per | ||||||||
Description of Equipment | Total Limit | Item | ||||||
Employee Tools & Clothing | $ | 10,000 | $ | 2,500 |
Item | ||||||||||
No. | Year | Description | Serial # | Limit | ||||||
1 | 1997 | CCHDR 13 Fletcher Roof Bolter (FA204) | $ | 155,000 | ||||||
2 | MSA Trickle Duster (FA215) | $ | 7,000 | |||||||
3 | MCI Section Power Center (FA210) | MMSE10140 | $ | 65,000 | ||||||
4 | Joy Shuttle Car (FA205) | ET15862 | $ | 275,000 | ||||||
5 | Joy Shuttle Car (FA206) | ET15195 | $ | 275,000 | ||||||
6 | Section Power Center (FA213) | MMSE1040 | $ | 38,000 | ||||||
7 | Wet Duster (FA218) | S115-S60T | $ | 13,000 | ||||||
8 | Water Pressure Station (FA233) | BYM 16-20 | $ | 6,000 | ||||||
9 | Stamler Feeder Breaker (FA209) | BF14A4253 | $ | 22,000 | ||||||
10 | Fletcher DDR Roof Bolter (FA203) | 13830 | $ | 225,000 | ||||||
11 | Joy Continuous Miner (FA201) | JM4882 | $ | 800,000 | ||||||
12 | Power Center Pemco (FA212) | $ | 59,000 | |||||||
13 | Continuous Miner (FA202) | JM4276 | $ | 800,000 | ||||||
14 | Biopak Self Res & Access (FA234) | $ | 142,000 | |||||||
15 | Mine Self Rescuer w/pouch (FA458) | $ | 21,000 | |||||||
16 | Slinger Duster (FA217) | $ | 10,000 | |||||||
17 | Bantam Dusters (2) (FA216) | $ | 21,000 | |||||||
18 | Joy Shuttle Car 10SC32 (FA381) | ET17736 | $ | 570,000 | ||||||
19 | Wagner 3 1/2 yard scoop (FA388) | $ | 266,000 | |||||||
20 | Power Center 1500 KVA (FA403) | 1PC-R | $ | 102,000 | ||||||
21 | Joy Feeder Breaker (FA452) | 14200 | $ | 500,000 | ||||||
22 | Section Fan CR-60 (FA454) | 401-1 | $ | 75,000 | ||||||
23 | Section Fan CR-60 (FA455) | 401-2 | $ | 75,000 | ||||||
24 | Power Center Section 1500 KVA (FA457) | $ | 103,000 | |||||||
25 | Power Center Belt 1500 KVA (FA460) | $ | 100,000 | |||||||
26 | Wagner 3 1/2 yard scoop (FA472) | LHD-1 | $ | 347,000 | ||||||
27 | Getman LRD226 Tow Tractor (FA474) | 7074 | $ | 340,000 | ||||||
28 | Getman LRD226 Tow Tractor (FA475) | 7085 | $ | 340,000 | ||||||
29 | Getman Supply Tractor (FA476) | HH1005 | $ | 125,000 | ||||||
30 | Getman Supply Tractor (FA477) | HH1006 | $ | 125,000 | ||||||
31 | Genco Mantrip (FA401) | 195 | $ | 28,000 | ||||||
32 | Dodge Mantrip (FA451) | 3D7ML467496537747 | $ | 25,000 | ||||||
33 | Genco Mantrip (FA459) | 213 | $ | 28,000 | ||||||
34 | Cap Lamps (FA526) | $ | 13,000 | |||||||
35 | Continuous Miner JM6192 (FA527) | 12CM12-11BX | $ | 1,871,000 | ||||||
36 | Atlas Copco Compressor (FA528) | GA250-125 | $ | 55,000 | ||||||
37 | Fletcher Roof Bolter CCDDR-13 (FA531) | 2008070 | $ | 685,000 | ||||||
38 | Transformers 300 KVA (FA529) | $ | 7,000 | |||||||
39 | Slinger Duster (FA533) | $ | 46,000 | |||||||
40 | Scoop (FA832) | LS195 | $ | 517,000 | ||||||
41 | Gator Mantrip (FA504) | WO4X2ED003586 | $ | 10,000 | ||||||
42 | Dodge 3500 Mantrip (FA521) | 3D7ML46719G554134 | $ | 25,000 |
Page 10
Item | ||||||||||
No. | Year | Description | Serial # | Limit | ||||||
43 | Dodge 3500 Mantrip (FA522) | 3D7ML46789G554132 | $ | 25,000 | ||||||
44 | Dodge 3500 Mantrip (FA523) | 3D7ML467X9G554133 | $ | 25,000 | ||||||
45 | Genco Mantrip (FA524) | 218 | $ | 36,000 | ||||||
46 | Dodge 3500 Mantrip (FA552) | 3D7ML467496537747 | $ | 33,000 | ||||||
47 | 42” Conveyor System w/motor (FA386) | $ | 200,000 | |||||||
48 | 60” Conveyor Belt 1410’ (FA402) | $ | 70,000 | |||||||
49 | 60” Conveyor Belt 2160’ (FA456) | $ | 40,000 | |||||||
50 | Transformer fan 500 KVA (FA461) | $ | 14,000 | |||||||
51 | Joy Shuttle Car (FA559) | ET17737 | $ | 575,000 | ||||||
52 | Rescue Chamber (FA582) | $ | 108,000 | |||||||
53 | Belt Structure 60” 1000(FA592) | $ | 49,000 | |||||||
54 | Shield Hauler (FA663) | $ | 116,000 | |||||||
55 | Dodge 3500 Mantrip (FA 556) | 3D7ML46789G554132 | $ | 31,000 | ||||||
56 | Dodge 3500 Mantrip (FA 557) | 3D7ML46719G554134 | $ | 31,000 | ||||||
57 | Dodge 3500 Mantrip (FA558) | 3D7ML467X9G554133 | $ | 31,000 | ||||||
58 | Dodge 3500 Mantrip (FA590) | 9G558926 | $ | 31,000 | ||||||
59 | Feeder Breaker (FA708) | $ | 557,000 | |||||||
60 | Mantrip (FA709) | $ | 26,000 | |||||||
61 | Mantrip (FA710) | $ | 52,000 | |||||||
62 | Mantrip (FA711) | $ | 52,000 | |||||||
Total | $ | 11,414,000 | ||||||||
Scheduled Equipment: Above Ground | ||||||||||
Item | ||||||||||
No. | Year | Description | Serial # | Limit | ||||||
1 | 1983 | Cat 980G Front End Loader (FA253) | AWH00597 | 369,000 | ||||||
2 | Cat Backhoe BLN01721 (FA252) | 420P1T | 48,000 | |||||||
3 | Cat 980G Front End Loader (FA250) | 2KR04677 | 199,000 | |||||||
4 | Cat Road Grader (FA251) | 9DJ00659 | 385,000 | |||||||
5 | Telehandler (FA553) | SLH00540 | 64,000 | |||||||
6 | Komatsu 40 Ton Truck (FA247) | HD325-6A | 292,000 | |||||||
7 | CAT Dozer D10T (FA385) | RJG01548 | 1,100,000 | |||||||
8 | Coal Lab Equipment (FA462) | 151,000 | ||||||||
9 | Coal Lab Equipment (FA506) | 5,000 | ||||||||
10 | Skid Steer (FA277) | 25,000 | ||||||||
11 | Truck Scale (FA280) | 47,000 | ||||||||
12 | GPS System (FA304) | 44,000 | ||||||||
13 | CAT D10T Dozer (FA574) | RJG02055 | 1,175,000 | |||||||
14 | Yale Pneumatic Lift Truck (FA576) | 15,750 | ||||||||
15 | Gehl Skid Loader (FA591) | 59,883 | ||||||||
16 | Getman Motor Grader (FA594) | 7095 | 433,000 | |||||||
17 | Madison #2 Water Well pump & line (FA560/FA561) | 750,000 | ||||||||
18 | Skid Loader (FA721) | 60,000 | ||||||||
19 | 50KV Powerline Upgrade (FA586) | 65,000 | ||||||||
20 | 1000 KVA Transformer (FA680) | 24,000 | ||||||||
21 | 1000 KVA Transformer (FA681) | 24,000 | ||||||||
22 | 1000 KVA Transformer (FA682) | 27,000 | ||||||||
23 | 200 KVA Transformer (FA683) | 37,000 | ||||||||
24 | Main Substation (FA684) | 3,000,000 | ||||||||
25 | Surface Switchgear (FA685) | 1,000,000 | ||||||||
26 | Cat D8T Dozer (FA824) | OKPZ01906 | 325,000 | |||||||
27 | Cat 815F Wheel Compactor (FA825) | OBKL00992 | 199,500 | |||||||
28 | Cat 330DL Excavator (FA826) | OMWP00339 | 153,500 |
Page 11
Item | ||||||||||
No. | Year | Description | Serial # | Limit | ||||||
29 | Madison Deep Water Well Pump/Pipe (FA272) | 500,000 | ||||||||
30 | Cat 924G Wheel Loader (FA827) | ODDA03664 | 72,500 | |||||||
31 | Main Mine Fan (FA387) | 350,000 | ||||||||
Total | $ | 11,000,133 |
Exclusions: | Refer to policy for exclusions | |
Coverage Modifications: | See policy for specific information pertaining to these modifications |
Description | Limit | Deductible | ||||
Rental Expense | $ | 25,000 | ||||
Scheduled Equipment-Aboveground-Deductible Per Occurrence | $ | 11,000,133 | 10% subject to $5,000 Min., $100,000 Max | |||
Scheduled Equipment-Underground-Deductible Per Occurrence | $ | 11,414,000 | 10% subject to $10,000 Min., | |||
Maximum Loss Limit $5,000,000 | $100,000 Max | |||||
Coverage-Direct Physical Loss | ||||||
Mobile Equipment Aboveground of Others | $ | 100,000 | ||||
Rented/Leased Equipment Coverage | $ | 500,000 | ||||
Cap On Certified Terrorism Losses | ||||||
Pull Back Warranty Endorsement |
Page 12
Policy Period: | 7/16/2010 — 7/16/2011 | |
Insurance Company: | National Union Fire Ins Co of Pittsburgh | |
Schedule of Named Insureds: | An entity must be named to receive coverage under the policy Signal Peak Energy LLC Global Rail Group LLC | |
Limits of Insurance: | $5,000,000 Each Occurrence Limit $5,000,000 General Aggregate Limit | |
Self-Insured Retention: | $10,000 | |
Coverage Form: | Follow Form Umbrella | |
Coverage Modifications: | Refer to policy for specific information pertaining to these modifications |
Description | Limit | |||
Crisis Response Coverage Enhancement | $ | 250,000 | ||
Excess Casualty Crisis Fund Limit of Insurance | $ | 50,000 | ||
Professional Liability Exclusion | ||||
Cross Suits Exclusion | ||||
Employers’ Liability For Occupational Disease Exclusion | ||||
Silica Exclusion | ||||
Total Pollution Exclusion | ||||
Foreign Liability Exclusion | ||||
Products-Completed Operations Aggregate | $ | 5,000,000 | ||
Act of Terrorism Self-Insured Retention | $ | 1,000,000 | ||
Mining Limitation Endorsement | ||||
Fungus Exclusion | ||||
Lead Exclusion | ||||
Radioactive Matter Exclusion | ||||
Commercial Umbrella Liability Policy With CrisisResponse | ||||
Coverage Territory | ||||
Violation of Economic or Trade Sanctions Conditions Amendment | ||||
Duties in the Event of an Occurrence, Claim or Suit and Schedule A — Approved Crisis Management Firms | ||||
Employee Benefits Liability Limitation (Claims-Made) | ||||
Employers’ Liability Limitation | ||||
Marine Liability Exclusion |
Audit Basis: | Annual |
Page 16
Ins. Company | Effective Date | Expiration Date | Limit | |||||||||
Federal Insurance Co | 7/16/2010 | 7/16/2011 | $ | 1,000,000 |
Effective | Expiration | Each Acc. | Disease Each | |||||||||||||||||
Ins. Company | Date | Date | Limit | Emp. Limit | Disease Policy Limit | |||||||||||||||
Commerce & Industry | 7/16/2010 | 7/16/2011 | $ | 1,000,000 | $ | 1,000,000 | $ | 1,000,000 |
Prod. / | ||||||||||||||||||||||||
Effective | Gen. Agg. | Comp. | Per Occ. | Per. / Adv. | ||||||||||||||||||||
Ins. Company | Date | Exp. Date | Limit | Ops Agg | Limit | Limit | ||||||||||||||||||
Federal Insurance Co | 7/16/2010 | 7/16/2011 | $ | 2,000,000 | $ | 1,000,000 | $ | 1,000,000 | $ | 1,000,000 |
Ins. Company | Effective Date | Exp. Date | Coverage | Limit | ||||||||||||
Federal Insurance Co | 7/16/2010 | 7/16/2011 | EBL | $ | 1,000,000 | |||||||||||
Travelers Cas & Sur. | 7/16/2010 | 7/16/2011 | EBL | $ | 3,000,000 |
Page 17
Policy Period: | 7/16/2010 — 7/16/2011 | |
Insurance Company: | Lexington Insurance Company | |
Schedule of Named Insureds: | An entity must be named to receive coverage under the policy | |
Limits of Insurance: | $5,000,000 Each Occurrence Limit $5,000,000 General Aggregate Limit | |
Self-Insured Retention: | ||
Coverage Form: | Umbrella | |
Coverage Modifications: | Refer to policy for specific information pertaining to these modifications |
Description | Limit | |||
Terrorism Coverage Provided Under the Federal Terrorism Risk Insurance Act of 2002, USA (certified acts) | $ | 5,000,000 | ||
Following Form — Excess Liability | ||||
Patrol Access Endorsement | ||||
Accident Insurance Endorsement | ||||
Amendment to Insuring Agreements | ||||
Defense Cost Payments (shall not reduce limits of liability) | ||||
Employment-Related Practices Exclusion | ||||
Minimum Earned Premium — $22,810 | ||||
Occupational Disease Exclusion | ||||
Securities and Financial Interest Exclusion | ||||
Exclusion — Violation of Statutes in Connection With Sending, Transmitting or Communicating Any Material or Information | ||||
Unimpaired Aggregate | ||||
War Exclusion |
Audit Basis: | Annual |
Page 18
Ins. Company | Effective Date | Expiration Date | Limit |
Ins. | Effective | Expiration | Each Acc. | Disease Each Emp. | Disease Policy | |||||||||||||||||
Company | Date | Date | Limit | Limit | Limit |
Prod. / | ||||||||||||||||||||||||||
Ins. | Effective | Exp. | Gen. Agg | Comp | Per Occ. | Per. / Adv. | ||||||||||||||||||||
Company | Date | Date | Limit | Ops Agg. | Limit | Limit |
Ins. Company | Effective Date | Exp. Date | Coverage | Limit | ||||||||||||
National Union Fire | 7/16/2009 | 7/16/2010 | Commercial Umbrella | $ | 5,000,000 |
Audit Basts: | Annual |
Page 19
Policy Period: | 7/16/2010 — 7/16/2011 | |
Insurance Company: | New Hampshire Insurance Company | |
Schedule of Named Insureds: | An entity must be named to receive coverage under the policy. | |
Signal Peak Energy LLC | ||
Global Rail Group LLC | ||
Workers’ Compensation Insurance: | Statutory MT |
Employers’ Liability Insurance: | Bodily Injury by Accident | $ | 1,000,000 | Each Accident | ||||
Bodily Injury by Disease | $ | 1,000,000 | Each Employee | |||||
Bodily Injury by Disease | $ | 1,000,000 | Policy Limit | |||||
Employers’ Liability Exclusions: | Refer to policy for exclusions | |||||||
Coverage Modifications: | See policy for specific information pertaining to coverage and exclusions |
Description | ||||
Federal Coal Mine Health & Safety Act Coverage | ||||
Voluntary Compensation & Employers Liability Coverage | ||||
Waiver of Subrogation — under any contract prior to occurrence of loss | ||||
Notification of Change In Ownership — must report within 90 days | ||||
Montana Intentional Injury Exclusion | ||||
Montana Safety Endorsement |
Audit Basis: | Annual |
Rating: MT | ||||||||||
Class | Estimated | Expiring | ||||||||
Code | Classification | Payroll | Payroll | |||||||
0158 | Coal Mining — Underground -Black Lung | $ | 16,800,000 | $ | 10,766,000 | |||||
1016 | Coal Mining — Underground | $ | 16,800,000 | $ | 10,766,000 | |||||
0156 | Coal Mine — Surface — Black Lung | If Any | If Any | |||||||
1005 | Coal Mining — Surface — & Drivers | If Any | If Any | |||||||
8601 | Architect or Engineer — Consulting | $ | 986,900 | $ | 1,225,000 | |||||
8233 | Coal Merchant & Local Managers, Drivers | If Any | If Any | |||||||
8810 | Clerical Office Employees NOC | $ | 368,900 | $ | 1,819,600 |
Page 14
Name | Title/Relation | Included/Excluded | ||
Darrell Roland | Vice President | Included | ||
John Demichiei | Vice President | Included | ||
Wayne Boich | President/Director | Excluded | ||
Brian T. Murphy | Secretary/Treasurer | Excluded |
Page 15
Policy Period: | 7/16/2010 — 7/16/2011 | |
Insurance Company: | Travelers Casualty & Surety Company of America | |
Schedule of Named Insureds: | An entity must be named to receive coverage under the policy |
Description | Ded. | Limit | ||||||
Employee Theft | $ | 10,000 | $ | 1,000,000 |
Description | Ded. | Limit | ||||||
Aggregate Limit | $ | 25,000 | $ | 3,000,000 | ||||
Supplemental Personal indemnification Limit of Liability for Directors and Officers | $ | 500,000 | ||||||
Investigative Expense Limit | $ | 100,000 |
Description | Ded. | Limit | ||||||
Aggregate Limit | $ | 10,000 | $ | 3,000,000 | ||||
Third Party EPL Sublimit | $ | 10,000 | $ | 3,000,000 |
Description | Ded. | Limit | ||||||
Aggregate Limit | $ | 0 | $ | 1,000,000 |
Page 13
AND BUSINESS INTERRUPTION POLICY
1
ATTACHING TO AND FORMING PART OF POLICY NO: 753 / PL0901791
Insured: | Signal Peak Energy LLC | |
Address: | 100 Portal Drive, Roundup, Montana 59072 6856 | |
Period of Insurance: | From: 1 November 2009 | |
To: 31 October 2010 | ||
Both Days Inclusive Local Standard Time at the location of the property insured | ||
The Business: | Coal Mine | |
Situation: | Montana, United States of America | |
Premises: | 1) 127 PM Coal Road Roundup, Musselshell County, Montana 59072 | |
2) 100 Portal Drive, Roundup, Montana 59072 6856 | ||
Limits of Liability: | USD 50,000,000 each and every occurrence Combined Single Limit Sections 1 and 2 | |
Deductibles: | USD 1,000,000 each and every occurrence in respect of Property Damage | |
60 Days in respect of Business Interruption on Actual Daily Value basis (ADV) | ||
Premium: | USD 826,705.74 (being 35.5556% of USD 2,325,107) per annum | |
Indemnity Period: | As defined herein | |
Dated in London: | 1 November 2009 |
2
(a) | architects’, surveyors’, consulting engineers’, legal and other fees and clerks’ of work salaries for estimates, plans, specifications, quantities, tenders and supervision necessarily incurred in reinstatement consequent upon damage to Property Insured but not such costs, fees and salary for preparing any claim hereunder; |
(b) | any fee, contribution, impost or other sum payable to any Government, Local Government or other Statutory Authority; where payment of such fee, contribution, impost or other sum payable is a condition precedent to the obtaining of consent to reinstate any building(s) insured hereunder; provided that the Insurer shall not be liable for payment of any fines and/or penalties imposed upon the Insured by any such Authorities; |
(c) | costs and expenses necessarily and reasonably incurred for the purpose of extinguishing fire at or in the vicinity of Property Insured or threatening to involve such property, or for the purpose of preventing or diminishing imminent damage to Property Insured by any other peril insured by this Policy, including damage to gain access, and the costs of replenishment of fire protective equipment (where such fire protective equipment is required by law to be replaced with a different type of equipment; the cost of such different type of equipment of similar capabilities as the equipment being replaced) and charges incurred for the purpose of shutting off the supply of water or other substance following accidental discharge from any fire protective equipment or otherwise escaping from intended confines; |
(d) | costs and expenses necessarily and reasonably incurred for the temporary protection and safety of Property Insured pending repair or replacement consequent upon damage insured hereunder; |
(e) | cost of replacing locks and/or keys and/or combinations where, if as a result of burglary, theft or any attempt thereat, the keys and/or combination are stolen or if there are reasonable grounds to believe the keys may have been duplicated. Also the costs of opening safes and/or strongrooms as a result of theft of keys and/or combinations; |
(f) | costs and expenses necessarily and reasonably incurred in respect of: |
(i) | the removal, storage and/or disposal of debris or the demolition, dismantling, shoring up, propping, underpinning or other temporary repairs consequent upon damage to Property Insured by this Policy and occasioned by a peril or event not otherwise excluded; |
(ii) | the Insured’s legal liability in respect of removal, storage and/or disposal of debris, notwithstanding in relation to premises, roadways, services, railway or waterways of others, consequent upon damage to the Property Insured by a peril hereby insured against, for such costs together with the cost of cleaning provided that such liability was not assumed by the Insured under an agreement entered into after the commencement of the Period of Insurance or any renewal thereof unless liability would have attached in the absence of such agreement. |
3
(iii) | the demolition and removal of any property belonging to the Insured which is no longer useful for the purpose it was intended, providing such demolition and removal is necessary for the purpose of the reinstatement or replacement of Property Insured under this section and is consequent upon damage to the Property Insured by a peril hereby insured against. |
(g) | damage to personal property, tools and effects (including money and negotiable instruments) belonging to directors, partners, proprietors and employees of the Insured whilst such persons are engaged on the business of the Insured and damage to property of welfare, sport and social clubs associated with the Insured whilst at the Situation. | |
(h) | costs and expenses reasonably incurred to expedite repairs, replacement or reinstatement consequent upon damage to Property Insured including, but not limited to, express airfreight, additional overtime, night, weekend or public holiday rates of pay incurred in connection with the repair or reinstatement of Property Insured directly or indirectly arising from an event insured. | |
(i) | the cost of locating and repairing burst or leaking water tanks, apparatus or pipes where a claim has been substantiated for loss or damage to the Property Insured arising therefrom including the cost of restoring the premises; | |
(j) | costs and expenses incurred by the Insured in taking inventory (including unpacking, repacking and restocking) to identify, quantify and value any Property Insured physically lost, destroyed or damaged by any peril insured against by this Section including examination of property not belonging to but in the care, custody or control of the Insured; | |
(k) | reduction in value of components or parts of Property Insured if such is consequent upon physical loss destruction or damage not otherwise excluded to other components or parts of Property Insured; | |
(l) | cost of clearance of drains including expenses necessarily incurred in clearing and/or repairing drains, gutters, sewers and the like, at or in the vicinity of Property Insured. | |
for the purpose of this clause the cost of clearance means the residue of damaged Property Insured excluding any material which is itself a pollutant or contaminant and which is deposited beyond the boundaries of the Situation. |
4
(a) | On buildings, machinery, plant and all other property and contents (other than those specified below); the cost of reinstatement, replacement or repair in accordance with the provisions of the Reinstatement or Replacement and Extra Cost of Reinstatement Memoranda as set out herein. | |
Provided that if the Insured elects to claim the indemnity value of any damaged property, the Insurer(s) will pay to the Insured the value of such property at the time of the happening of the damage or at its option reinstate, replace or repair such property or any part thereof. In any event the Insurer(s) will pay costs incurred by the Insured in accordance with the provisions of the Extra Cost of Reinstatement Memorandum. | ||
(b) | On raw materials, supplies and other merchandise not manufactured by the Insured; the replacement cost at the time and the place of replacement or, if such property is not replaced, the value thereof at the time and place of the damage. | |
(c) | On materials in process of manufacture; the replacement value of the raw materials and the value of labour and other overhead charges expended thereon or apportioned thereto at the time and the place of the damage. | |
(d) | On finished goods; the replacement value of raw materials and the value of labour and other overhead charges expended thereon or apportioned thereto before any allowance for profit or the cost of restocking such goods, whichever is the lesser. | |
(e) | On computer systems records, documents, manuscripts, securities, deeds, specifications, plans, drawings, designs, business books and other records of every description; the cost of reinstating, replacing, reproducing or restoring same, including information contained therein or thereon but not for the value to the Insured of the said information; or if such is not required, the current replacement cost of materials as blank stationery or software and the like. | |
(f) | On patterns; models, moulds, dies or casts; the current cost of repair or replacement (if actually replaced) otherwise the indemnity value to the Insured of such property. | |
(g) | On glass; the cost of repairing or replacing the broken glass including: |
• | temporary Shuttering and/or hiring of security service pending replacement of broken glass; | ||
• | signwriting or Ornamentation on glass; | ||
• | replacement Burglar Alarm Tapes on glass; | ||
• | removing and re-fixing of Window and Show Case Frames and Fittings; | ||
• | heat Reflecting Material or process on glass. |
(h) | On directors’ and employees’ personal property, tools and effects and customers and visitors’ personal effects; the current replacement cost at the time and place of replacement | |
(i) | On empty premises awaiting demolition; the salvage value of the building materials and/or landlords, fixtures and fittings. | |
(j) | On goods sold but not delivered for which the Insured is responsible and with regard to which, under the conditions of sale, the sale contract is by reason of the damage cancelled, either wholly or to the extent of the damage; the contract price. | |
(k) | On mobile plant and machinery and mining equipment that is five (5) or more years old at the time of loss or damage; replacement cash value. |
5
(a) | Where property is lost or destroyed, in the case of a building, the rebuilding thereof, or in the case of property other than a building, the replacement thereof, by similar property, in either case in a condition equal to but not better or more extensive that its condition when new. | |
(b) | Where property is Damaged, the repair of the damage and the restoration of the Damaged portion of the property to a condition substantially the same as but not better or more extensive than its condition when new. |
(i) | The work of rebuilding, or replacing, or repairing or restoring, as the case may be (which may be carried out upon any other site(s) and in any manner suitable to the requirements of the Insured, but subject to the liability of the Insurer not being thereby increased), must be commenced and carried out with reasonable dispatch, failing which the Insurer(s) shall not be prejudiced by the said delay and shall not be liable to make any payment for additional expenses incurred by the said delay. | |
(ii) | When any Property Insured to which this memorandum applies is damaged in part only, the liability of the Insurer(s) shall not exceed the sum representing the cost which the Insurer(s) could have been called upon to pay for reinstatement if such property had been wholly Damaged. |
6
(iii) | The Insured may elect to reinstate or replace destroyed property with dissimilar property, provided it is to be used for the purpose of The Business described in the Schedule. If the Insured elects to reinstate or replace destroyed property with dissimilar property, the Insurer(s) shall pay the lesser of: |
(a) | the cost of the dissimilar property, or | ||
(b) | an amount equal to the replacement cost which would have been payable if the destroyed property had been reinstated or replaced with similar property in a condition equal to but not better or more extensive than its condition when new. |
(iv) | No payment beyond the amount which would have been payable under this Policy if this memorandum had not been incorporated herein shall be made until a sum equal to the cost of reinstatement shall have been actually incurred; provided that where the Insured reinstates or replaces any lost or destroyed property at a cost which is less than the cost of reinstatement (as defined) but greater than the value of such property at the time of the happening of its loss or destruction, then the cost so incurred shall be deemed to be the cost of reinstatement. | |
(v) | All other insurances covering the property effected by or on behalf of the Insured shall be on a similar reinstatement basis. |
(i) | The work of reinstatement, (which may be carried out wholly or partially upon another site, subject to the liability of the Insurer not being thereby increased), must be commenced and carried out with reasonable dispatch, failing which the lnsurer(s) shall not be prejudiced by the said delay and shall not be liable to make any payment for additional expenses incurred by the said delay. | |
(ii) | The amount recoverable shall not include the additional cost incurred in complying with any such Act, Regulation, By-Law or requirement with which the Insured had been required to comply prior to the happening of the Damage. | |
(iii) | If the cost of reinstatement of the Damage directly caused by any of the perils insured against is less than twenty five percent (25%) of what would have been the cost of reinstatement of the Property Insured had such property been destroyed the amount recoverable hereunder shall be limited to the extra cost necessarily incurred in reinstating only that portion Damaged. |
(a) | If any damaged Property Insured is to be replaced by an item or items which have the same or a lesser total output, then the insurable value thereof is the new installed cost of such replacement item or items as would give the same total output as the damaged property; | |
(b) | If any damaged Property Insured is to be replaced by an item or items which have a greater total output and the replacement value is no greater than the value insured of the property damaged then no deduction shall be made from any claim due to improved output; | |
(c) | If any damaged Property Insured is to be replaced by an item or items which have a greater total output and the replacement value is greater than the value insured of the damaged property then the insurable value thereof is that proportion of the new installed cost of the replacement item or items as the output of the damages property bears to the output of the replacement item or items. The difference between the insurable value as defined and the new installed cost of the replacement item or items shall be borne by the insured; |
7
(a) | the actual cost of reinstatement incurred in accordance with the reduced floor space ratio index and | |
(b) | the cost of reinstatement which would have been incurred had a reduced floor space ratio index not been applicable. |
(a) | property located anywhere in the World belonging to companies and other organisations a controlling interest in which is acquired by the Insured during the currency of this Policy; and | |
(b) | property located anywhere in the World for damage to which such companies or other organisations are legally responsible or for which they have assumed responsibility to insure prior to the occurrence of any damage; |
8
9
(a) | defects in material, design, construction, erection or assembly; | |
(b) | fortuitous working accidents such as vibration, maladjustment, weakening of parts, molecular fatigue, centrifugal force, abnormal stresses, defective or accidental lack of lubrication, water hammer or local overheating (except in the case of boilers or similar plant when followed by explosion) and failure or defects in protection devices; | |
(c) | excessive or insufficient electrical power, failure of insulation, short circuits, open circuits or arcing or the effects of static electricity; | |
(d) | incompetence, lack of skill or negligent acts of employees or third parties; | |
(e) | falling impact, collision, collapse or similar Occurrences, obstruction or the entry of foreign bodies; | |
(f) | Any other cause not hereinafter excluded. |
10
(a) | Loss or Damage caused by fire, direct lightning, explosion, extinguishing of a fire or subsequent demolition, aircraft and other aerial devices or articles dropped therefrom, collapse of buildings, disappearance, theft or any attempt thereat. Explosion shall not mean the bursting or disruption of turbines, compressors, engine cylinders, hydraulic cylinders, flywheels or other parts subject to centrifugal force, transformer switches or oil immersed switchgear; nor shall it mean the disintegration, overpressure or rupture of pressure vessels or boiler pressure parts; | |
(b) | Loss or Damage caused by earthquake, tsunami, volcanic eruption or other convulsion of nature, subsidence, landslide, rockfall, avalanche, hurricane, tornado, typhoon, cyclone, or other atmospheric phenomena, flood, inundation, escape of water from water-containing apparatus or clearance of debris, demolition or dismantling arising from these causes; |
(c) | (i) | wastage of material, wearing away or wearing out of any part of any machinery caused by or resulting from ordinary usage, rust, boiler scale or other deposits, erosion, corrosion, cavitation or deterioration owing to chemical or atmospheric conditions or otherwise, scratching of painted or polished surfaces; | |
(ii) | slowly developing deformation such as distortion, cracks, fractures, blisters, laminations, flaws or grooving or the making good of defective tube joints or other defective joints or seams unless such defects result in damage otherwise insured under this Section 1 of the Policy; |
(d) | Loss or Damage caused by the imposition of abnormal conditions directly or indirectly resulting from testing or intentional and sustained overloading. Notwithstanding the provisions of this exclusion it is understood and agreed that testing is covered during pre commissioning, start-up, and commissions of construction and/or erection projects insured under Section 1 of this Policy; | |
(e) | Loss or Damage to foundations and/or masonry, exchangeable or replaceable parts and attachments such as flexible drives or tools used for cutting, drilling, grinding, polishing or similar purposes or moulds, patterns, pulverising and/or crushing surfaces, screens and/or sieves, engraved cylinders, ropes, chains, belts, elevator and/or conveyor bands, refractory linings, batteries, tyres, connecting wire and/or cables, flexible pipes, jointing and/or packing material and/or all other parts not made of metal (except the insulation of electrical conductors), fuels, filter fillings, cooling media, lubricants, catalysts, chemicals and/or other operating media and/or materials used in the course of process; | |
(f) | loss of use of any machine or consequential loss of any nature whatsoever other than as provided for under Section 2 in respect of Business Interruption; | |
(g) | Loss or Damage to boilers and/or pressure vessels due to or arising from flue gas and/or chemical explosion; |
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(h) | Loss or Damage caused by the wilful act, wilful neglect, gross negligence or wilful misconduct of the Insured or his representatives; |
(i) | (i) | Loss or Damage to or loss of use of Property Insured directly or indirectly caused by seepage or pollution; |
(ii) | the cost of removing, nullifying or cleaning-up seeping, polluting or contaminating substances; | ||
other than as provided elsewhere under this Policy; |
(j) | Loss or Damage for which the manufacturer or supplier of the property is responsible either by law or under contract. In the event of the said supplier or manufacturer repudiating liability or not indemnifying the Insured within 30 days of the time the claim documents are in his possession whichever occurs first the Insurers shall indemnify the Insured, subject to subrogation of their rights, to the extent that such rights exist, against the manufacturer or supplier for such loss or damage; | |
This exclusion shall not apply to loss or damage caused in the course of reinstating or replacing an otherwise insured damage; | ||
(k) | Loss or Damage due to any faults or defects known to the Insured at the time this insurance was arranged and not disclosed to the Insurer; | |
(l) | The deliberate withholding from the Insured by the supply authority of supplies of water, steam, gas, electricity, fuel or refrigerant as a result of a dispute between the Insured and such authority unless resulting from a cause not excluded hereby. | |
(m) | Testing And Commissioning Clause |
i) | The plant is mechanically complete | ||
This requires all key items to be complete and that no temporary structures (such as pipe supports) remain awaiting permanent fixture | |||
ii) | Plant Testing and commissioning has been completed with the design/ construction/ erection contract performance levels having been satisfactory achieved | ||
iii) | Design performance criteria maintained by the entire plant in a stable and controlled manner for a continuous ongoing period of one hundred and sixty eight (168) hours | ||
iv) | The Insured has accepted the plant without reservation or waiver of guarantee conditions |
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1. | Right of Inspection | |
The Insurers’ officials shall at all reasonable times have the right of access to the Premises in which the machines are situated provided they comply with all reasonable site access requirements. | ||
2. | Due Diligence | |
It is agreed by the Insured that during the continuance of this Section 1 (a) the machine(s) shall be maintained in good working order and not wilfully operated beyond safe limits and that Government or other regulations relating to the condition, operated or inspection of machine(s) are observed. The Insured agree to forward to the Insurers copies of such inspection reports whenever required to do so by the Insurers within the Period of Insurance and any other period provided herein for the bringing of a suit against the Insurers. | ||
3. | Valuation and Adjustment of Losses | |
In case of Loss or Damage insured under this Section of the Policy, the basis of indemnity unless otherwise endorsed hereon shall be the Replacement Cost. | ||
“Replacement Cost” shall mean all expenses necessarily incurred to repair, rebuild or replace with new materials of like kind and quality including dismantling and re-erection charges incurred for the purpose of effecting repair. Replacement Cost shall be determined as of the date of incurring such expenditure. | ||
In the event that any Property Insured is not repaired, rebuilt or replaced, the basis of adjustment shall be calculated on the basis of the value of such Property Insured immediately before the Occurrence of the Los or Damage insured by this Section, with due allowance for depreciation by age, use and condition. | ||
4. | Removal | |
Such insurance as is afforded under this Section of the Policy shall also apply while the Property Insured is being removed because of imminent danger of Loss or Damage. |
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(a) | In respect of Reduction in Turnover: | |
The sum produced by applying the Rate of Gross Earnings to the amount by which the Turnover during the Indemnity Period shall, in consequence of the Damage, fall short of the Standard Turnover, less any non continuing Standing Charges. | ||
(b) | In respect of Increase in Cost of Working: | |
The additional expenditure necessarily and reasonably incurred for the sole purpose of avoiding or diminishing the reduction in Turnover and/or resuming or maintaining Normal Operations which but for that expenditure would have taken place during the Indemnity Period in consequence of the Damage, but not exceeding the sum produced by applying the Rate of Gross Earnings to the amount of the reduction thereby avoided. |
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1. | the difference between: |
(a) | the outstanding debit balances, and | ||
(b) | the total of the amounts received or traced in respect thereof. |
2. | the additional expenditure incurred in tracing and establishing customer’s debit balances including collection expenses in excess of normal collection expenses following the Damage. | |
3. | interest on any loan to offset impair collection pending repayment of such sums made uncollectable by such Damage. |
• | The monthly average of outstanding debit balances represented by the Insured shall be adjusted in accordance with the percentage increase or decrease in the twelve months average of monthly sales of products and services that may have occurred in the interim. | ||
• | The monthly amount of outstanding debit balances thus established shall be further adjusted in accordance with any demonstrable variance from the average for the particular month in which the Damage occurred; due consideration also being given to the normal fluctuations in the amount of outstanding debit balances within the fiscal month involved. | ||
• | There shall be deducted from the total amount of outstanding debit balances, however established, the amount of such outstanding debit balances evidenced by records not Damaged or otherwise established or collected by the Insured, and an amount to allow for probable bad debts which would normally have been uncollectable by the Insured. |
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(a) | starting from the time of physical loss or damage of the type insured against; and | ||
(b) | ending when with due diligence and dispatch the building and equipment could be: |
(i) | repaired or replaced; and | ||
(ii) | made ready for operations, |
a. | directly resulting from the interruption of business insured under this Policy; | ||
b. | for such additional time as would be required with due diligence and dispatch to restore the Insured’s business to the condition that would have existed had no loss occurred; | ||
c. | beginning on the date on which liability of Insurers for loss resulting from interruption of business would end without this coverage, but | ||
d. | in no event for more than 180 days from that date. |
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17
1. | would have been utilised by the Business or sold during the Indemnity Period had the Damage not occurred, and | |
2. | cannot be utilised or sold before or, so far as can reasonably be foreseen, after the expiration of the Indemnity Period; solely due to their obsolescence resulting from changes in designs. The amount payable as indemnity hereunder shall be the purchase (or manufactured) cost of such goods to the Insured less, if the goods be sold for salvage, the net amount realised from any salvage sale. |
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1. | property in transit beyond the confines of any site or lease. | |
2. | money which shall mean coin and paper currency, cheques (including travellers cheques), negotiable instruments, letters of credit, bills of exchange, postal and money orders, stamps, credit cards, credit card sale vouchers and the contents of franking machines | |
3. | jewellery or furs, (other than as personal property of directors, employees or visitors) bullion, precious metals or precious stones other than as stock and/or merchandise of the Business. | |
4. | any locomotive or rolling stock, watercraft or aircraft; | |
5. | vehicles or trailers registered or licensed to travel on a public road, provided that this exclusion shall not apply to mobile plant and equipment and vehicles or trailers not otherwise insured, whilst on any premises occupied or used by the Insured; | |
6. | Livestock, animals, birds or fish; | |
7. | standing timber, growing crops and pastures; | |
8. | land, land values, improvements to or in land. | |
9. | underground workings and tunnels, underground excavations, highwalls, shafts, declines, inclines, stopes, drifts, roadways, haul roads, access roads, earthworks, open pits and any other open cut excavation, pitwalls, leach pads, leachate solution, liners forming part of leach pads, precious metals in solution, | |
10. | mobile plant, except for plant and equipment within open pits or underground that is not otherwise excluded for which a value has been scheduled and declared to Insurers; | |
11. | consumable property used in underground mines, including but not limited to roof-bolts, rock bolts, rock dust, fuel, oil, lubricants, construction material or supplies except that which has not been installed or put to its intended use; | |
12. | tailings dams and any structure used for containment of tailings and other property situated thereon or therein; | |
13. | autoclaves as a result of gradually developing flaws, deformation, distortion, cracks or partial fractures; | |
14. | loss or damage to refractory linings; | |
15. | loss or damage to underground property situated under unsupported roof or to remotely controlled plant and machinery underground whilst operating in remote mode. | |
16. | unmined minerals, coal deposits or ore; | |
17. | gold or precious metals in any form; | |
18. | property (other than coal and other raw materials) in the course of being or due to it being processed. | |
19. | empty premises undergoing demolition. | |
20. | offshore oil and gas drilling and/or production rigs whilst offshore. | |
21. | docks, wharves and piers not forming part of any building. | |
22. | transmission and distribution towers, poles lines components, or equipment beyond 300 metres of the Insured’s Premises. |
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23. | (a) property undergoing construction, and/or erection, and/or testing and/or commissioning, provided that this exclusion shall not apply to normal mine development or maintenance. (b) empty premises undergoing demolition | |
24. | rehabilitation and/or restoration of mine workings | |
25. | property situated within the confines of, or forming part of, any open pits and any other open cut excavation. | |
26. | property forming part of or situated within the confines of any underground mine except that this exclusion shall not apply to longwall face equipment (as defined herein) |
1. | physical loss, destruction of or damage to the Property Insured |
(a) | directly or indirectly occasioned by or happening through or connected with war, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power; | ||
(b) | resulting from confiscation, nationalisation, requisition, or damage to property by or under the order of any Government or Public or Local Authority. |
Notwithstanding the provisions of Perils exclusion 1(b) the lnsurer(s) shall be liable for loss, destruction of or damage to, or the cost of removal of, sound property at the Insured’s Premises for the purpose of preventing or diminishing imminent damage by, or inhibiting the spread of fire or under the order of any Government or Public or Local Authority when such fire is not a result of any of the excluded perils in the paragraph 1(a). |
2. | (a) | physical loss, destruction of or damage to the Property Insured; |
(b) | any legal liability of whatsoever nature, directly or indirectly caused by or contributed to by or arising from: | ||
ionising radiations or contamination by radioactivity from any nuclear waste or from the combustion of nuclear fuel; |
3. | physical loss, destruction or damage occasioned by or happening through: |
(a) | (i) | loss of weight, evaporation; inherent vice; latent defect; the action of amp atmosphere; natural variations in temperature; insects, vermin, rust, oxidation or corrosion; |
(ii) | contamination or pollution; changes in colour, flavour, texture or finish; the action of smut or smoke from industrial operations, mildew, mould, wet and dry rot or disease; unless such events result form a cause not specifically excluded which originates beyond the premises owned, occupied or used by the Insured; |
(b) | wear and tear, fading, scratching or marring, gradual deterioration or developing flaws, normal upkeep or making good | ||
(c) | error or omission in design, plan or specification or failure of such design; | ||
(d) | normal settling, seepage, shrinkage or expansion in buildings or foundations, walls, pavements, roads and other structural improvements, in regard to underground operations only the mining condition known as creep and heave. |
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(e) | faulty materials or faulty workmanship |
4. | physical loss, destruction or damage occasioned by or happening through; |
(a) | incorrect siting of buildings consequent upon |
(i) | error in architectural design or specification, | ||
(ii) | faulty workmanship, | ||
(iii) | non compliance by the Insured (or anyone acting on behalf thereof) with the necessary permits issued by Government, Public or Local Authorities. |
(b) | demolitions ordered by Government or Public or Local Authorities due to failure on the part of the Insured or their agents to obtain the necessary permits required. | ||
(c) | error or omission in design, plan or specification or failure of design. |
5. | physical loss, destruction of or damage occasioned by or happening through: |
(a) | unexplained or inventory shortage or disappearance resulting from clerical or accounting errors, or shortage in the supply or delivery of materials to or from the Insured. |
6. | physical loss, destruction or damage occasioned by or happening through: |
(a) | (i) | fraudulent or dishonest acts, fraudulent misappropriation, embezzlement, forgery, counterfeiting data corruption, unauthorised amendment of data and erasure by electronic or non-electronic means involving the Property Insured by the Insured or any employee(s) of the Insured acting or in collusion with any other person(s). |
(ii) | access by any person(s) other than the Insured or the Insured’s employee(s) to the Insured’s computer system via data communication media that terminate in the Insured’s computer system, |
(b) | (i) cessation of work whether total or partial |
(ii) | cessation, interruption or retarding of any process or operation as a direct result of strikes, labour disturbances or locked-out workers. |
(c) | kidnapping, bomb threat, hoax, extortion or any attempt thereat |
7. | any legal liability of whatsoever nature other than as herein provided. |
8. | consequential loss of any kind including consequential loss due to delay, lack of performance, loss of contract or depreciation in the value of land or stock, except as herein provided in Section 2. | |
9. | physical loss, destruction or damage to property underground caused directly or indirectly by water and/or other liquid matter other than damage solely and exclusively caused by water entering the underground portion of a mine via man-made surface level openings. | |
10. | physical loss, destruction or damage caused by subsidence and/or under-mining in, adjacent to, or above any mine whether open cut or underground. |
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11. | physical loss, destruction or damage to property underground directly caused by or arising out of the mining conditions known as “creep” or “heave”, but not excluding resultant physical loss or damage by a peril not otherwise excluded. | |
For the purposes of the application of this exclusion: | ||
“Creep” shall mean gradual deformation that results from the application of stress resulting in forcing the pillars down into the floor of an underground mine. | ||
“Heave” shall mean gradual deformation of the floor of an underground mine. | ||
12. | physical loss, destruction or damage to raise boring equipment whilst in “hole” | |
13. | physical loss destruction or damage caused by or resulting from the escape of material from hydraulically backfilled stopes. | |
14. | all non-damage Business Interruption, advanced Business Interruption and Contingent Business Interruption |
22
1. | Accidental Damage |
2. | Damage |
23
(a) | any corporation or organisation (including its directors, officers, employees or servants) owned or controlled by any Insured named herein or subsidiary to any Insured named herein or any co-owner of the Property Insured hereunder; | |
(b) | any Insured named or described by this Policy (including its directors, officers, employees or servants). |
a) | The Insured shall at the commencement of the Period of Insurance and at each subsequent Period of Insurance provide as soon as practicable to the Insurer(s) a declaration which the Insured warrants is to the best of his knowledge and belief the Replacement Cost or Indemnity Value at the time of all Insured Property according to the basis on which the respective property is insured. | |
b) | The value of property as declared will form the basis of the premium for Insurance under Section 1. The premium is provisional and shall be adjusted by payment to the Insurers(s) of an additional premium or by allowance to the Insured of a return premium as the case may be where during the Period of Insurance there has been an abnormal fluctuation in value of the Insured Property during the Period of Insurance. | |
For the purpose of this clause an abnormal fluctuation in value shall be any fluctuation in excess of 10% of the Insured’s declaration of value of property at the commencement of the Period of Insurance as compared to the lnsured(s) declaration of value of property on expiry of the Period of Insurance. |
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c) | Such adjustment shall be made to the premium at the agreed rate applied to the difference between the value of the Insured Property declared at the commencement of the Period of Insurance and the value of Insured Property on the day of the expiry of the Period of Insurance. |
a) | The Insured shall at the commencement of the Period of Insurance and at each subsequent Period of Insurance provide to the Insurer(s) a Declaration of the estimated Gross Profit and Payroll under the terms of the Policy for that period. | |
b) | The estimated Annual Gross Profit and Payroll as declared will form the basis of the premium for Insurance under Section 2 and the premium produced shall be non adjustable for the Period of Insurance. |
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1. | Misrepresentation And Non-Disclosure |
(a) | failed to disclose any matter which the Insured was under a duty to disclose to the Insurer(s); or |
(b) | made a misrepresentation to the Insurer(s) before this Policy was entered into |
(i) | the liability of the Insurer(s) in respect of any claim will be reduced to an amount to place the Insurer(s) in the same position in which the Insurer(s) would have been placed if such nondisclosure had not occurred or such misrepresentation had not been made; or |
(ii) | if the non-disclosure or misrepresentation was fraudulent, the lnsurer(s) may avoid this Policy. |
2. | Alteration |
(a) | any act or omission unknown to or beyond the control of the Insured on the part of any tenant occupying or using the premises; | |
(b) | structural alterations and/or repairs, limited to buildings, machinery and plant; | |
(c) | any alteration of occupancy; |
3. | Sprinkler Installations |
4. | Other Insurance |
5. | Cancellation |
(a) | This Policy may be cancelled at any time at the request of the Insured, in which case the Insurer(s) will retain the customary pro rata for the time this Policy has been in force. |
26
(b) | The Insurer(s) may also cancel this Policy by giving the Insured written notice to that effect where — |
(i) | the Insured or any person who was at any time the Insured failed to comply with the duty of utmost good faith; | ||
(ii) | the person who was the Insured at the time when this Policy was entered into failed to comply with the duty of disclosure; | ||
(iii) | the person who was the Insured at the time when this Policy was entered into made a misrepresentation to the Insurer(s) during the negotiations for this Policy but before it was entered into; | ||
(iv) | the Insured or any person who was at any time the Insured failed to comply with a provision of this Policy, including a provision with respect to the payment of the Premium; | ||
(v) | the Insured has made a fraudulent claim under this Policy or any other Policy of insurance (whether with the Insurer(s) or some other insurer) that provided insurance cover during any part of the period during which this Policy provides insurance cover; | ||
(vi) | the Insured failed to notify the Insurer(s) of any specific act or omission where such notification is required under the terms of this Policy; or | ||
(vii) | the Insured acted in contravention of or omitted to act in compliance with any condition of this Policy which empowers the Insurer(s) to refuse to pay, or reduce its/their liability in respect of, a claim in the event of such contravention or omission. |
(c) | The Insurer(s) notice of cancellation takes effect at the earlier of the following times: |
(i) | the time when another Policy of insurance between the Insured and the Insurer(s) or some other insurer, being a Policy that is intended by the Insured to replace this Policy, is entered into; or | ||
(ii) | 10 business days after the day on which notice was given to the Insured. |
6. | Notification Of Claims |
7. | Fraud |
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8. | Reinstatement |
9. | Insurer(s) Rights |
10. | Subrogation |
11. | Precautions To Prevent Loss |
12. | Termination Of Cover Under Section 2 |
a) | the Insured ceases to carry on the Business or any part of the Business is disposed of, permanently discontinued or the Insured’s interest in the Business or such part thereof ceases otherwise than by death; or | |
b) | the Insured (being a corporation) is placed in liquidation (or provisional liquidation), is placed under Official Management, enters into a Scheme of Arrangement, has Receivers and/or Managers appointed over its assets or undertaking(s); or | |
c) | the Insured (being a natural person) becomes a bankrupt or enters into a scheme of arrangement or compromise or composition with creditors; |
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13. | Observance Of Terms And Conditions |
14. | Progress Payments |
15. | Headings |
16. | Jurisdiction |
17. | Reasonable Despatch |
18. | Inspection |
19. | Collection From Others |
29
20. | Interest Of Other Parties |
21. | Permission |
22. | Service of Suit Clause (U.S.A.) |
(24/4/86)
30
ENDORSEMENT NUMBER: | One (1) | |
INSURED: | Signal Peak Energy LLC | |
POLICY NUMBER: | 753 / PL0901791 | |
EFFECTIVE DATE: | 1 November 2009 |
08/10/2001
31
ENDORSEMENT NUMBER: | Two (2) | |
INSURED: | Signal Peak Energy LLC | |
POLICY NUMBER: | 753 / PL0901791 | |
EFFECTIVE DATE: | 1 November 2009 |
1. | Electronic Data Exclusion | |
Notwithstanding any provision to the contrary within the Policy or any endorsement thereto, it is understood and agreed as follows:- |
a) | This Policy does not insure, loss, damage, destruction, distortion, erasure, corruption or alteration of ELECTRONIC DATA from any cause whatsoever (including but not limited to COMPUTER VIRUS) or loss of use, reduction in functionality, cost, expense of whatsoever nature resulting therefrom, regardless of any other cause or event contributing concurrently or in any other sequence to the loss. |
b) | However, in the event that a peril listed below results from any of the matters described in paragraph a) above, this Policy, subject to all its terms, conditions and exclusions will cover physical damage occurring during the Policy period to Property Insured by this Policy directly caused by such listed peril. |
Fire
Explosion
2. | Electronic Data Processing Media Valuation |
25/01/2001
32
ENDORSEMENT NUMBER: | Three (3) | |
INSURED: | Signal Peak Energy LLC | |
POLICY NUMBER: | 753 / PL0901791 | |
EFFECTIVE DATE: | 1 November 2009 |
(i) | any physical loss or damage to insured property; | ||
(ii) | any insured peril or cause, whether or not contributing concurrently or in any sequence; | ||
(iii) | any loss of use, occupancy, or functionality; or | ||
(iv) | any action required, including but not limited to repair, replacement, removal, cleanup, abatement, disposal, relocation, or steps taken to address medical or legal concerns. |
33
ENDORSEMENT NUMBER: | Four (4) | |
INSURED: | Signal Peak Energy LLC | |
POLICY NUMBER: | 753 / PL0901791 | |
EFFECTIVE DATE: | 1 November 2009 |
A. | This Policy only insures asbestos physically incorporated in an insured building or structure, and then only that part of the asbestos which has been physically damaged during the Period of Insurance by one of these Listed Perils: |
1. | The said building or structure must be insured under this Policy for damage by that Listed Peril. | ||
2. | The Listed Peril must be the immediate, sole cause of the damage to the asbestos. | ||
3. | The Insured must report to Insurers the existence and cost of the damage as soon as practicable after the Listed Peril first damaged the asbestos. However this Policy does not insure any such damage first reported to Insurers more than 12 (twelve) months after the expiration, or termination, of the Period of Insurance. | ||
4. | Insurance under this Policy in respect of asbestos shall not include any sum relating to: |
(i) | any faults in the design, manufacture or installation of the asbestos. | ||
(ii) | asbestos not physically damaged by the Listed Peril including any governmental or regulatory authority direction or request of whatsoever nature relating to undamaged asbestos. |
B. | Except as forth in the foregoing Section A, this Policy does not insure asbestos or any sum relating thereto. |
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ENDORSEMENT NUMBER: | Five (5) | |
INSURED: | Signal Peak Energy LLC | |
POLICY NUMBER: | 753 / PL0901791 | |
EFFECTIVE DATE: | 1 November 2009 |
06/02/03
35
ENDORSEMENT NUMBER: | Six (6) | |
INSURED: | Signal Peak Energy LLC | |
POLICY NUMBER: | 753 / PL0901791 | |
EFFECTIVE DATE: | 1 November 2009 |
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ENDORSEMENT NUMBER: | Seven (7) | |
INSURED: | Signal Peak Energy LLC | |
POLICY NUMBER: | 753 / PL0901791 | |
EFFECTIVE DATE: | 1 November 2009 |
1. | In the event of direct physical damage to property, for which Insurers agree to pay hereunder, or which but for the application of a deductible or underlying amount they would agree to pay (hereinafter in this Clause referred to as “Damage”), this Policy also insures, subject to the limitations below and method of calculation in Clause VI of this Endorsement and to all the other terms and conditions of the Policy, expense: |
(a) | which is reasonably and necessarily incurred by the Insured in the removal, from the premises of the Insured at which the Damage occurred, of debris which results from the Damage; and |
(b) | of which the Insured becomes aware and advises the amount to Insurers hereon within one year of the commencement of the Damage; |
2. | The maximum amount of expense for removal of debris (subject to the limitations of paragraph 1 above) that can be included in the method of calculation in Clause VI of this Endorsement, shall be the greater of USD 500,000 (five hundred thousand Dollars) or 10% (ten per cent) of the amount of the Damage from which expense results. |
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1. | any loss, damage, cost or expense; or |
2. | any increase in insured loss, damage, cost or expense; or |
3. | any loss, damage, cost, expense, fine, penalty or other sum which is incurred, sustained or imposed by, or by the threat of, any judgement, order, direction, instruction or request of, or any agreement with, any court, government agency, any public, civil or military authority or any other person (and whether or not as a result of public or private litigation); |
1. | seepage of, or pollution and/or contamination by anything, including but not limited to, any material designated as a “hazardous substance” by the United States Environmental Protection Agency or as a “hazardous material” by the United States Department of Transportation, or defined as a “toxic substance” by the Canadian Environmental Protection Act for the purposes of part II of that Act, or any substance designated or defined as toxic, dangerous, hazardous or deleterious to persons or the environment under any other law, ordinance or regulation; and |
2. | the presence, existence, or release of anything which endangers or threatens to endanger the health, safety or welfare of persons or the environment. |
IV. | LISTED PERILS RESULTING FROM SEEPAGE AND/OR POLLUTION AND/OR CONTAMINATION CLAUSE |
Fire,
Explosion.
1. | loss, damage, cost, expense, fine or penalty, or other sum arising from any kind of seepage or any kind of pollution and/or contamination that causes or results from a listed peril; or | ||
2. | loss or damage at any premises other than the premises where the listed peril took place; or | ||
3. | property and/or interests other than those insured by this Policy against the listed perils. |
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V. | LIMITED SEEPAGE AND/OR POLLUTION AND/OR CONTAMINATION RESULTING FROM PHYSICAL DAMAGE CAUSED BY LISTED PERILS CLAUSE |
1. | If. |
(a) | any of the perils listed below is the sole, immediate and direct cause of physical damage to Property Insured by this Policy against such listed peril (hereinafter in this Clause referred to as “Original Damage”); and |
(b) | the Original Damage is the sole, immediate and direct cause of seepage onto, and/or pollution and/or contamination of property which is: |
(i) | at the same premises as the Original Damage; and | ||
(ii) | insured by this Policy against the listed peril causing the Original Damage; and |
(c) | said property is damaged thereby (hereinafter in this Clause referred to as “Resulting Damage”); |
(d) | the Resulting Damage; and |
(e) | the reasonable and necessary expense incurred by the Insured for debris removal and/or clean up which is: |
(i) | limited to the same premises as the Original Damage; and | ||
(ii) | made necessary solely by the Resulting Damage; | ||
but which shall in no event include any expense of clean up or removal of land, water or air, |
(f) | Insurers have agreed to pay for the Original Damage or, but for the operation of a deductible or underlying amount, would have agreed to pay for the Original Damage; and |
(g) | within one year of the commencement of the listed peril which caused the Original Damage, the Insured became aware and advised Insurers of the amount of: |
(i) | the Resulting Loss; and |
(ii) | any other interest to be claimed under this Policy as a result of the Resulting Damage, whether physical damage, business interruption, extra expense or otherwise. |
Fire,
Lightning,
Explosion.
39
2. | The maximum amount for any Resulting Loss and any other interest claimed under this Policy as a result of the Resulting Damage, whether physical damage, business interruption, extra expense or otherwise, that can be included in the method of calculation in Clause VI of this Endorsement is USD 500,000 (or the equivalent in local currency). |
(a) | the amount of the Damage (as defined in Clause II) or the amount of the Original Damage (as defined in Clause V); and |
(b) | all other amounts, if any, insured under this Policy as a result of the same occurrence that Insurers hereon agree to pay or, but for the application of a deductible or underlying amount, they would agree to pay; |
NMA2415
40
ENDORSEMENT NUMBER: | Eight (8) | |
INSURED: | Signal Peak Energy LLC | |
POLICY NUMBER: | 753/PL0901791 | |
EFFECTIVE DATE: | 1 November 2009 |
1. | This Policy does not cover any loss, damage, cost, claim or expense, whether preventative, remedial or otherwise, directly or indirectly arising out of or relating to: |
(a) | the calculation, comparison, differentiation, sequencing or processing of data involving the date change to the year 2000, or any other date change, including leap year calculations, by any computer system, hardware, programme or software and/or any microchip, integrated circuit or similar device in computer equipment or non-computer equipment, whether the property of the insured or not; or |
(b) | any change, alteration, or modification involving the date change to the year 2000, or any other date change, including leap year calculations, to any such computer system, hardware, programme or software and/or any microchip, integrated circuit or similar device in computer equipment or non-computer equipment, whether the property of the insured or not. |
2. | However, in the event that a peril listed below results from 1.(a) or 1.(b) above, this Policy, subject to all its other terms, conditions and exclusions, will cover physical damage occurring during the policy period to Property Insured by this Policy directly caused by such listed peril. |
Fire
Explosion
3. | Notwithstanding Section 2 above, this Policy does not cover any costs and expenses, whether preventative, remedial or otherwise, arising out of or relating to change, alteration or modification of any computer system, hardware, programme or software and/or any microchip, integrated circuit or similar device in computer equipment or non-computer equipment, whether the property of the insured or not. |
NMA2808
41
ENDORSEMENT NUMBER: | Nine (9) | |
INSURED: | Signal Peak Energy LLC | |
POLICY NUMBER: | 753 / PL0901791 | |
EFFECTIVE DATE: | 1 November 2009 |
v) | The plant is mechanically complete | ||
This requires all key items to be complete and that no temporary structures (such as pipe supports) remain awaiting permanent fixture |
vi) | Plant Testing and commissioning has been completed with the design/ construction/ erection contract performance levels having been satisfactory achieved |
vii) | Design performance criteria maintained by the entire plant in a stable and controlled manner for a continuous ongoing period of one hundred and sixty eight (168) hours |
viii) | The Insured has accepted the plant without reservation or waiver of guarantee conditions |
42
ENDORSEMENT NUMBER: | Ten (10) | |
INSURED: | Signal Peak Energy LLC | |
POLICY NUMBER: | 753 / PL0901791 | |
EFFECTIVE DATE: | 1 November 2009 |
NOT PURCHASED CLAUSE
43
44
753 | ||||
B0753PL0901791000 | LPL | |||
Page 2 of 18 |
TYPE: | All Risks of Direct Physical Loss or Damage including Machinery Breakdown and Business Interruption Resulting Therefrom Insurance | |
INSURED: | Signal Peak Energy LLC | |
MAILING ADDRESS: | 490 North 31st Street, Suite 308, Billings, Montana 59101 | |
PERIOD: | From: 1 November 2009 | |
To: 31 October 2010 | ||
Both Days inclusive Local Standard Time at the location of the property insured | ||
INTEREST: | Section 1 — Property Damage | |
Joy Longwall miner to include the 2009 Joy Longwall Mining System, Hydraulic supports, 1250 Foot AFC, 7LS5 Shearer, including and not limited to shields, belts, belt structures, belt drives, conveyors and all equipment that is part of the Joy long wall mining operation. This property also extends to the underground and above ground equipment to the first stacking tube only | ||
Section 2 — Business Interruption | ||
Item 1 — Gross Earnings: | ||
(a) Reduction in Turnover | ||
(b) Increase in Cost of Working | ||
Item 2 — Contractual Payments | ||
Item 3 — Accounts Receivable | ||
LIMITS OF LIABILITY: | USD 50,000,000 each and every occurrence Combined Single Limit Sections 1 and 2 | |
In excess of Policy Deductibles |
Internal Use Only | hf2/sdr/21 September 2009/PL0901791 | |||
KH4 |
753 | ||||
B0753PL0901791000 | LPL | |||
Page 3 of 18 |
SUB-LIMITS: | ||
DEDUCTIBLES: | USD 1,000,000 each and every occurrence in respect of Property Damage | |
60 Days in respect of Business Interruption Actual Daily Value basis (ADV) | ||
MAXIMUM INDEMNITY PERIOD: | 12 Months | |
EXCLUSIONS: | a) Land, land values, improvements to or in land, | |
b) Property situated within the confines of, or forming part of, any open pits and any other open cut excavation. | ||
c) Property forming part of or situated within the confines of any underground mine except that this exclusion shall not apply to longwall face equipment (as defined herein) | ||
d) Consumable property used in underground mines, including but not limited to roof-bolts, rock bolts, rock dust, fuel, oil, lubricants, construction materials or supplies except that which has not been installed or put to its intended use | ||
e) Tailings dams and any structure used for containment of tailings and other property situated thereon or therein. | ||
f) Autoclaves as a result of gradually developing flaws, deformation, distortion, cracks or partial fractures, unless resultant damage is caused by an event, occurrence or peril covered by this policy | ||
g) Loss or damage to refractory linings other than damage directly caused by the sudden and unforeseen operation of an insured peril external to the furnace | ||
h) Loss or damage to underground property situated under unsupported roof or to remotely controlled plant and machinery underground whilst operating in remote mode. | ||
i) Unmined minerals, coal or ore | ||
j) Gold in any form | ||
k) Property in the course of construction &/or testing &/or commissioning (Zurich Testing & Commissioning Clause to apply) |
Internal Use Only | hf2/sdr/21 September 2009/PL0901791 | |||
KH4 |
753 | ||||
B0753PL0901791000 | LPL | |||
Page 4 of 18 |
Amended Peril Exclusions | ||
a) Excluding damage to underground property caused directly or directly by water &/or other liquid matter other than damage solely caused by water entering underground portion of mine via man-made surface level openings | ||
b) Excluding loss or damage caused by escape of material from hydraulically backfilled stopes. | ||
c) Excluding creep and/or heave | ||
d) Excluding loss or damage caused by subsidence and/or undermining in, adjacent to, or above any mine whether open cut or underground. | ||
e) Excluding loss or damage to raise boring equipment whilst in “hole | ||
And as per Policy attached | ||
SITUATION: | Montana, United States of America | |
CONDITIONS: | As per attached Property Damage and Business Interruption Policy LMA5062 Fraudulent Claim Clause to apply NMA 1998 Service of Suit Clause Testing and Commissioning Clause as attached NMA 2915 Electronic Data Endorsement B NMA 2920 Terrorism Exclusion Endorsement NMA 2808 Electronic Date Recognition Exclusion (listed perils) War & Civil War Exclusion as per policy wording WEL Preservation of Property Clause Limited to USD 5m Transmission & Distribution Lines Exclusion (300 metres) MAP Micro-organism Exclusion WEH Asbestos Exclusion NMA 2962 Biological or Chemical Materials Exclusion Property limited to Longwall Face Equipment Only and BI in respect of loss or damage to such property | |
Excluding Rehabilitation and/or restoration of mine workings Excluding all non-damage Business Interruption and advanced Business interruption | ||
Contingent Business Interruption excluded | ||
LSW 1001 to apply to policies | ||
SUBJECTIVITIES: | None |
Internal Use Only | hf2/sdr/21 September 2009/PL0901791 | |||
KH4 |
753 | ||||
B0753PL0901791000 | LPL | |||
Page 5 of 18 |
CHOICE OF LAW AND JURISDICTION: | This insurance shall be governed by and construed in accordance with the law of Montana, United States of America and each party agrees to submit to the exclusive jurisdiction of the Courts of Montana, United States of America. | |
PREMIUM: | USD (100%) per annum | |
PREMIUM PAYMENT TERMS: | It is a condition of this contract of insurance that the premium due at inception must be paid to and received by Insurers on or before 23:59 hours Greenwich Mean Time on the 15 December 2009. If this condition is not complied with, then this contract of insurance shall terminate on the above date with the Insured hereby agreeing to pay premium calculated at not less than pro rata temporis | |
Where the premium is to be paid through a London Market Bureau, payment to Insurers will be deemed to occur on the day of delivery of a premium advice note to the Bureau or the date premium is released to Insurers via the de-linking system. Where settlement is be to made to non bureau companies payment will be deemed to be the date Lloyd & Partners Limited instruct their bankers to make the appropriate settlement | ||
FEES PAYABLE RESULTANT FROM CONDITIONS / WARRANTIES/ SUBJECTIVITIES: | None | |
TAX(ES) PAYABLE BY THE INSURED AND ADMINISTERED BY INSURER(S): | None | |
RECORDING, TRANSMITTING & STORING INFORMATION: | Where Lloyd & Partners Limited maintains risk and claim data / information / documents Lloyd & Partners Limited may hold data / information / documents electronically. |
Internal Use Only | hf2/sdr/21 September 2009/PL0901791 | |||
KH4 |
753 | ||||
B0753PL0901791000 | LPL | |||
Page 6 of 18 |
INSURER CONTRACT DOCUMENTATION: | XIS to sign Lloyd’s policy. Treat as fully claused wording. XIS to sign Company policy. Treat as fully claused wording. Each Company which does not subscribe to XIS to sign a follow Policy for their own participation, following the terms and condition of the lead wording. | |
Lloyd & Partners Limited will prepare/submit formal policies (and subsequent policy endorsements, if any) to be signed (a) by Xchanging Ins-Sure Services on behalf of Lloyd’s Insurers and Company Insurers for whom Xchanging Ins-Sure Services are so authorised and (b) by each other subscribing Company Insurer where required. Agree Sign As Seen-no Technical check required. | ||
Policy Preparation Service to be utilized wherever such service is available or mandated. | ||
Xchanging Ins-Sure Services are authorised to sign direct and reinsurance policy documents prior to premium payment in accordance with the Xchanging Ins-Sure Services Early Document Scheme. | ||
All non-Xchanging Ins-Sure Services companies hereon hereby authorise the first non-Xchanging Ins-Sure Services company to issue on their behalf, a collective policy and all endorsements as may be required, without the requirement to issue any authorisation. | ||
FORM: | LMA3044A in respect of Lloyd’s. IS3 in respect of XIS Companies Single Company Policy in respect of each non-XIS Company. | |
Lloyd’s Insurers agree if required by Lloyd & Partners Limited to issue Co-Insurance Policy NMA2074 (no further Insurer agreement required). | ||
NMA2419 Lines Clause if applicable |
Internal Use Only | hf2/sdr/21 September 2009/PL0901791 | |||
KH4 |
753 | ||||
B0753PL0901791000 | LPL | |||
Page 7 of 18 |
Values: | ||||
Joy Miner: | USD | 72,000,000 | ||
Business Interruption: | USD | 113,000,000 |
01. Acord Commercial Insurance Application | 16 pages | |||
02. Signal Peak Energy Property & Equipment List | 3 pages | |||
03. International Mining Industry Underwriters Risk Assessment Report Signal Peak Energy Bull Mountain #1 Mine Date of Survey: May 7th to 8th 2009 | 39 pages |
Internal Use Only | hf2/sdr/21 September 2009/PL0901791 | |||
KH4 |
to the Credit Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
as Assignor
as Assignee
GLOBAL RAIL GROUP, LLC
CREDIT AGREEMENT,
dated as of October 22, 2010
A-1
1.Assignor: | [Name of Assignor] | |
2.Assignee: | [Name of Assignee] | |
3.Borrowers: | Signal Peak Energy, LLC and Global Rail Group, LLC | |
4.Administrative Agent: | Union Bank, N.A., as the Administrative Agent under the Credit Agreement | |
5.Collateral Agent: | Union Bank, N.A., as the Collateral Agent under the Credit Agreement |
A-2
6.Credit Agreement: | Credit Agreement, dated as of October 22, 2010, among Signal Peak Energy, LLC, Global Rail Group, LLC, the Lenders named therein and from time to time party thereto, and Union Bank, N.A., in its capacities as the Administrative Agent and as the Collateral Agent. | |
7.Assigned Interest:1 |
Amount of | ||
Amount of Commitment Assigned | Loans Assigned | |
$ | $ |
8.Effective Date: | [ _____], 20[_] |
1 | Assignments must be made in the minimum amounts required by Section 9.04(b) of the Credit Agreement. |
A-3
ASSIGNOR [NAME OF ASSIGNOR] | ||||
By: | ||||
Name: | ||||
Title: |
A-4
ASSIGNEE | ||||||||||
[NAME OF ASSIGNEE] | ||||||||||
By: | ||||||||||
Name: | ||||||||||
Title: | ||||||||||
Address for Notices: | ||||||||||
Attention: | ||||||||||
Telephone No.: | ||||||||||
Facsimile No.: | ||||||||||
A-5
[Consented to and Accepted by: | ||||||
UNION BANK, N.A., as Administrative Agent | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
Consented to: | ||||||
SIGNAL PEAK ENERGY, LLC | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
GLOBAL RAIL GROUP, LLC | ||||||
By: | ||||||
Name: | ||||||
Title:]2 |
2 | Insert if the consent of the Administrative Agent or the Borrowers is required by Section 9.04(b) of the Credit Agreement. |
A-6
ASSIGNMENT AND ASSUMPTION
A-7
A-8
to the Credit Agreement
PLEDGE AND SECURITY AGREEMENT
DEFINITIONS
B-1
B-2
PLEDGE
B-3
B-4
B-5
B-6
REPRESENTATIONS AND WARRANTIES
B-7
B-8
B-9
COVENANTS
B-10
B-11
B-12
B-13
B-14
THE COLLATERAL AGENT
B-15
B-16
B-17
REMEDIES
B-18
B-19
B-20
B-21
MISCELLANEOUS PROVISIONS
B-22
B-23
B-24
FIRSTENERGY VENTURES CORP. | ||||
By: | ||||
Name: | James F. Pearson | |||
Title: | Vice President and Treasurer | |||
Address: 76 South Main Street Akron, Ohio 44308 Attention: Treasurer Telephone No.: 330-384-5855 Facsimile No.: 330-384-3772 | ||||
WMB LOAN VENTURES II, LLC | ||||
By: | ||||
Name: | Wayne M. Boich | |||
Title: | President | |||
Address: 41 South High Street, Suite 3750 — South Columbus, Ohio 43215 Attention: Brian T. Murphy Telephone No.: 614-221-0101 Facsimile No.: 614-221-0117 | ||||
B-25
GLOBAL MINING GROUP, LLC | ||||
By: | ||||
Name: | Wayne M. Boich | |||
Title: | President | |||
Address: 41 South High Street, Suite 3750 — South Columbus, Ohio 43215 Attention: Brian T. Murphy Telephone No.: 614-221-0101 Facsimile No.: 614-221-0117 | ||||
B-26
By: | | |||
Title: |
B-27
to
Pledge and Security Agreement
Type and | ||||||||||
Names of Other | Percentage of | |||||||||
Title and Date of | Equity Interest | Equity Interests | Certificate No. | |||||||
Pledgor | Issuing Company | LLC Agreement | Holders | Pledged | (if any) | |||||
FirstEnergy Ventures Corp. | Global Rail Group, LLC | Limited Liability Company Agreement, dated as of July 16, 2008, by and among WMB Loan Ventures II, LLC (as assignee of WMB Rail Ventures, LLC) and FirstEnergy Ventures Corp. | WMB Loan Ventures II, LLC | 50% of the Equity Interests, represented by Class A Units | N/A | |||||
WMB Loan Ventures II, LLC | Global Rail Group, LLC | Limited Liability Company Agreement, dated as of July 16, 2008, by and among WMB Loan Ventures II, LLC (as assignee of WMB Rail Ventures, LLC) and FirstEnergy Ventures Corp. | FirstEnergy Ventures Corp. | 50% of the Equity Interests, represented by Class A Units | N/A |
B-28
Type and | ||||||||||
Names of Other | Percentage of | |||||||||
Title and Date of | Equity Interest | Equity Interests | Certificate No. | |||||||
Pledgor | Issuing Company | LLC Agreement | Holders | Pledged | (if any) | |||||
Global Mining Group, LLC | Signal Peak Energy, LLC | Limited Liability Company Agreement, dated as of July 16, 2008, by Global Mining Group, LLC | None | 100% of the Equity Interests, represented by Units | N/A |
B-29
to
Common Pledge and Security Agreement
Pledgor | Filing Offices | |
FirstEnergy Ventures Corp. | Ohio Secretary of State | |
WMB Loan Ventures II, LLC | Delaware Secretary of State | |
Global Mining Group, LLC | Delaware Secretary of State |
B-30
to the Credit Agreement
$[_______] | New York, New York | |
[____ __], 20[_____] |
C-1
SIGNAL PEAK ENERGY, LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
GLOBAL RAIL GROUP, LLC | ||||
By: | ||||
Name: | ||||
Title: |
C-2
Amount of | Maturity of | Principal Paid | Amount of Unpaid | Notation | ||||||
Date | Loan | Loan | or Prepaid | Principal Balance | Made By | |||||
C-3
to the Credit Agreement
GUARANTY AGREEMENT
D-1
D-2
D-3
D-4
D-5
D-6
D-7
D-8
D-9
D-10
D-11
D-12
GUARANTORS FIRSTENERGY CORP. | ||||
By: | ||||
Name: | James F. Pearson | |||
Title: | Vice President and Treasurer |
Address: | 76 South Main Street | |||
Akron, Ohio 44308 | ||||
Telecopy No. | 330-384-3772 | |||
Attention: | James F. Pearson |
GLOBAL MINING GROUP, LLC | ||||
By: | ||||
Name: | Wayne M. Boich | |||
Title: | President |
Address: | 41 South High Street | |||
Suite 3750-South | ||||
Columbus, Ohio 43215 | ||||
Telecopy No. | 614-221-0117 | |||
Attention: | Brian T. Murphy |
D-13
WMB LOAN VENTURES, LLC | ||||
By: | ||||
Name: | ||||
Title: |
Address: | 41 South High Street | |||
Suite 3750-South | ||||
Columbus, Ohio 43215 | ||||
Telecopy No. | 614-221-0117 | |||
Attention: | Brian T. Murphy |
WMB LOAN VENTURES II, LLC | ||||
By: | ||||
Name: | ||||
Title: |
Address: | 41 South High Street | |||
Suite 3750-South | ||||
Columbus, Ohio 43215 | ||||
Telecopy No. | 614-221-0117 | |||
Attention: | Brian T. Murphy |
D-14
as Collateral Agent
By: | | |||
Title: |
D-15
to the Credit Agreement
Credit Agreement referred to below
1 | To be included for a Proposed Borrowing comprised of Eurodollar Loans only. |
E-1
Very truly yours, SIGNAL PEAK ENERGY, LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
GLOBAL RAIL GROUP, LLC | ||||
By: | ||||
Name: | ||||
Title: |
E-2
E-3