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

Exhibit 10.2

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

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

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

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

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

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

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

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

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

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

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

Any provision of this Supplement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof and in the Guaranty and Collateral Agreement; the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

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

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

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


SAN XXXX COAL COMPANY

By:		/s/ Xxxxxx X. Xxxxxxx
		Name: Xxxxxx X. Xxxxxxx Title: Secretary

		Legal Name: San Xxxx Coal Company Jurisdiction of Formation: Delaware

SAN XXXX TRANSPORTATION COMPANY

By:		/s/ Xxxxxx X. Xxxxxxx
		Name: Xxxxxx X. Xxxxxxx Title: Secretary

		Legal Name: San Xxxx Transportation Company Jurisdiction of Formation: Delaware

XXXXXXXXXXXX SAN XXXX, LLC

By:		/s/ Xxxxxx X. Xxxxxxx
		Name: Xxxxxx X. Xxxxxxx Title: Secretary

		Legal Name: Xxxxxxxxxxxx San Xxxx, LLC Jurisdiction of Formation: Delaware

XXXXXXXXXXXX SAN XXXX HOLDINGS, INC.

By:		/s/ Xxxxxx X. Xxxxxxx
		Name: Xxxxxx X. Xxxxxxx
		Title: Secretary

		Legal Name: Xxxxxxxxxxxx San Xxxx Holdings, Inc.
		Jurisdiction of Formation: Delaware


XXXXXXXXXXXX POWER, INC.

By:		/s/ Xxxxxx X. Xxxxxxx
		Name: Xxxxxx X. Xxxxxxx
		Title: Secretary

		Legal Name: Xxxxxxxxxxxx Power, Inc. Jurisdiction of Formation: Delaware

XXXXXXXXXXXX CANADA LLC

By:		/s/ Xxxxxxxx X. Xxxxxxx
		Name: Xxxxxxxx X. Xxxxxxx
		Title: Secretary

		Legal Name: Xxxxxxxxxxxx Canada LLC Jurisdiction of Formation: Delaware

XXXXXXXXXXXX ENERGY SERVICES, INC.

By:		/s/ Smuel X. Xxxxxxx
		Name: Xxxxxx X. Xxxxxxx
		Title: Secretary

		Legal Name: Xxxxxxxxxxxx Energy Services, Inc. Jurisdiction of Formation: Delaware

BASIN RESOURCES, INC.

By:		/s/ Xxxxxx X. Xxxxxxx
		Name: Xxxxxx X. Xxxxxxx
		Title: Secretary

		Legal Name: Basin Resources, Inc. Jurisdiction of Formation: Colorado


XXXXXXXXXXXX CANADIAN INVESTMENTS L.P.

By: Xxxxxxxxxxxx Canada LLC, in its capacity as general partner of XXXXXXXXXXXX CANADIAN INVESTMENTS L.P. / XXXXXXXXXXXX INVESTISSEMENTS CANADIENS S.E.C.

	By:	/s/ Xxxxxxxx X. Xxxxxxx
	Name: Xxxxxxxx X. Xxxxxxx
	Title: Vice President and Secretary

	Legal Name: Xxxxxxxxxxxx Canadian Investments L.P.
	Jurisdiction of Formation: Quebec

ABSALOKA COAL, LLC

By:	/s/ Xxxxxx X. Xxxxxxx
	Name: Xxxxxx X. Xxxxxxx
	Title: Secretary


Legal Name: Absaloka Coal, LLC Jurisdiction of Formation: Delaware

WILMINGTON SAVINGS FUND SOCIETY, FSB, as Collateral Agent

By:	/s/ Xxxxxxxx X. Xxxxx
	Name:	Xxxxxxxx X. Xxxxx
	Title:	Vice President

PLEDGED SECURITIES

Pledged Stock

Name of Pledgor

Name, Jurisdiction

of Formation and

Type of Entity of

Pledged Subsidiary

Class or Type

of Pledged

Interest

Total Amount of
Class or Type of
Pledged Interests
Authorized

Total Amount of
Class or Type
Outstanding

Total
Amount
Pledged

Certificate
Number (if
applicable)

Xxxxxxxxxxxx Coal Company

Xxxxxxxxxxxx San Xxxx Holdings, Inc.; Delaware; corporation

Common

100

100%

Uncertificated

Xxxxxxxxxxxx San Xxxx Holdings, Inc.

Xxxxxxxxxxxx San Xxxx, LLC; Delaware; limited liability company

Membership Units

N/A

100%

Uncertificated

Xxxxxxxxxxxx San Xxxx, LLC

San Xxxx Coal Company; Delaware; corporation

Common

250

100%

Xxxxxxxxxxxx San Xxxx, LLC

San Xxxx Transportation Company; Delaware; corporation

Common

200

100%

Xxxxxxxxxxxx Energy Services New York, Inc.

Basin Resources, Inc., Delaware; corporation

Common

100

100%

Xxxxxxxxxxxx Coal Company

Xxxxxxxxxxxx Canada, LLC; Delaware; limited liability company

Sole Member

N/A

100%

Uncertificated

Xxxxxxxxxxxx Coal Company

Xxxxxxxxxxxx Power, Inc.; Delaware; corporation

Common

1,000

100%

Xxxxxxxxxxxx Coal Company

Xxxxxxxxxxxx Energy Services, Inc.; Delaware; corporation

Common

100

100%

WRI Partners, Inc.

Absaloka Coal, LLC

Sole Member

N/A

100%

Uncertificated

I-1

GRANTOR LEGAL NAME


COMPANY NAME	F/K/A	DATE OF NAME CHANGE	TRADE NAMES
Xxxxxxxxxxxx San Xxxx Holdings, Inc.	WLB Escrow Corporation	January 26, 2016	None

Xxxxxxxxxxxx San Xxxx, LLC	N/A	N/A	None

San Xxxx Coal Company	N/A	N/A	None

San Xxxx Transportation Company	N/A	N/A	None

Basin Resources, Inc.	X/X	X/X	Xxxx

Xxxxxxxxxxxx Xxxxxx, LLC	N/A	N/A	None

Xxxxxxxxxxxx Power, Inc.	N/A	N/A	None

Xxxxxxxxxxxx Energy Services, Inc.	N/A	N/A	None

Xxxxxxxxxxxx Canadian Investments L.P.	N/A	N/A	None

Absaloka Coal, LLC	N/A	N/A	None

I-2

GRANTOR ORGANIZATIONAL INFORMATION


COMPANY NAME	JURISDICTION	TYPE	ORG ID	OFFICE ADDRESS	TAX PAYER ID
Xxxxxxxxxxxx San Xxxx Holdings, Inc.	Delaware	Corporation	05857903	300 Road 0000 Xxxxxxxx Xxxxxx X Xxxxxxxxx, XX 00000	00-0000000

Xxxxxxxxxxxx San Xxxx, LLC	Delaware	Limited Liability Company	5948312	300 Road 0000 Xxxxxxxx Xxxxxx X Xxxxxxxxx, XX 00000	00-0000000

San Xxxx Transportation Company	Delaware	Corporation	0928266	300 Road 0000 Xxxxxxxx Xxxxxx X Xxxxxxxxx, XX 00000	00-0000000

San Xxxx Coal Company	Delaware	Corporation	0867351	300 Road 0000 Xxxxxxxx Xxxxxx X Xxxxxxxxx, XX 00000	00-0000000

Xxxxxxxxxxxx Power, Inc.	Delaware	Corporation	03357469	0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000	00-0000000

Xxxxxxxxxxxx Energy Services, Inc.	Delaware	Corporation	05371511	0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000	00-0000000

Xxxxxxxxxxxx Canada LLC	Delaware	Limited Liability Company	5509777	0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000	00-0000000

Basin Resources, Inc.	Colorado	Corporation	19871331143	0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000	00-0000000

Absaloka Coal, LLC	Delaware	Limited Liability Company	4554164	000 Xxxxx Xxxxx Xxxx, Xxxxxx, XX 00000	00-0000000

Xxxxxxxxxxxx Canadian Investments, L.P.	Alberta	Corporation	2020598864	0000, 00000-00 Xxxxxx, Xxxxxxxx, Xxxxxxx, X0X0X0	891271934

I-3

INTELLECTUAL PROPERTY


Title	Jurisdiction	Application Number	Patent/Publication Number
Drill Bit with Radially Expandable Cutter, and Method of Using Same	United States	11/758,913	7,686,103

Drill Bit	PCT International	PCT/US2008/0654 73	WO2008154196

Drill Bit	Australia	AU20080262084	AU2008262084

Drill Bit	Brazil	BR2008PI12780	BRPI0812780

Drill Bit	China	CN20088102345	CN101952540

Drill Bit	Germany	DE112008001519	DE20081101519

Drill Tip	Poland	PL20080390542	PL390542

Rotary Drilling Bit and Method to Create Helical Groove in Blast Hole Arranged in Bed	Russia	RU20090149654	RU2009149654

Drill Bit	Ukraine	UA20090013759	UA97983

Drill Bit	South Africa	ZA20090008569	ZA200908569

Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same	PCT International	PCT/US2008/0717 88	WO2009018458

Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same	Australia	AU20080282110	AU2008282110

Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same	Brazil	BR2008PI15066	BRPI0815066

I-4



Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same	China	CN20088108925	CN101809250

Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same	Germany	DE20081102078	DE112008002078

Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same	Poland	PL20080390417	PL390417

Method to Increase Resistance to Gas Flow in Shaft (Versions)	Russia	RU20100107179	RU2010107179

Method for Increasing Resistance to Gas Flow in Mine (Variants)	Ukraine	UA20100002184	UA99732

Use of Foam to Increase Resistance to Gas Flow in Mine Applications and Apparatus for Delivering Same	South Africa	ZA20100000402	ZA201000402

I-5

DEPOSIT AND SECURITIES ACCOUNTS

(see attached)

I-6

Document Metadata

Table of Contents

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

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