Peabody Surface Use Agreement. Subject to applicable Legal Requirements and to valid restrictions contained in Contracts with third Persons, upon the written request of CNX, Peabody covenants and agrees that it shall execute and deliver, or shall cause its Affiliates to execute and deliver, to CNX (or any entity with whom CNX has entered into a joint operating agreement, pursuant to which CNX is participating or has a right to participate in the subject operations) one or more non-exclusive site-specific surface access and use agreements covering portions of the surface estate overlying the Peabody Oil and Gas Interests, that is owned or leased by Peabody or an Affiliate as of the date hereof, in substantially the form agreed to by the Parties prior to the Closing Date (a “Peabody Surface Use Agreement” or “Peabody SUA”). Any Peabody SUA shall include specific terms and conditions that, among other things, take into account any existing operations or planned activities to be conducted pursuant to the Reserved Rights or the cooperative development plans referred to in Section 4.2. Subject to the expiration period set forth in Section 4.1(b)(i) hereof, the obligation of Peabody to enter into Peabody SUAs shall be binding upon all of Peabody’s or its Affiliates’ successors and assigns to that portion of the surface estate overlying the Peabody Oil and Gas Interests and that is owned or leased by Peabody or an Affiliate as of the date hereof, shall be incorporated into the Transfer Document by which Peabody Oil and Gas Interests are transferred, and shall be deemed a covenant running with the land.
