RNGE 8-K
Range Impact, Inc. (RNGE)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
Stock Purchase Agreement
On May 31, 2026 (the “Effective Date”), the Company and Tacora Capital, LP, a Delaware limited liability company (“Tacora Capital”) entered into a Stock Purchase Agreement (“Purchase Agreement”) pursuant to which Tacora Capital agreed to purchase up to Ten Million Dollars ($10,000,000) of the Company’s common stock in twelve consecutive monthly installments commencing on the Effective Date based on a volume weighted average price.
The Purchase Agreement contains the customary representations, warranties, indemnification rights and obligations of the parties in agreements of this type, including that the Company will use commercially reasonable efforts to file a registration statement on Form S-1 under the Securities Act of 1933, as amended (the “Securities Act”), to register the Shares as soon as reasonably practicable, but in any event no later than the sixth-month anniversary of the Twelfth Closing Date (as defined in the Purchase Agreement). The Company is not obligated to cause the Registration Statement to be declared effective by any specific date, and any time periods for effectiveness shall be subject to the Company’s compliance with applicable law and the rules and guidance of the Securities and Exchange Commission.
The foregoing description of the Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the Purchase Agreement attached hereto as Exhibit 10.1.
Loan Agreement
On May 31, 2026, Range Cumberland, LLC, a wholly owned indirect subsidiary of the Company (“Range Cumberland”), and Cumberland Coal Corp. (the “Borrower”) entered into a Loan Agreement (“Loan Agreement”) pursuant to which Range Cumberland agreed to make advances of up to Four Million Dollars ($4,000,000) (the “Loan”) to the Borrower pursuant to Draw Notes, a form of which is attached as an exhibit to the Loan Agreement. The Loan is secured by certain collateral provided by the Borrower pursuant to the Security Agreement attached as an exhibit to the Loan Agreement (the “Range Cumberland Security Interest”), and bears interest at a fixed rate of 10% per annum with quarterly interest-only payments. On written notice to Range Cumberland at least ten days prior to the date any interest payment is due, Borrower may elect that any accrued and unpaid interest on the outstanding principal balance of a Draw Note not be payable and to have such interest capitalized and added to the outstanding principal balance of such note. Principal and all accrued and unpaid interest is due the earlier of May 31, 2031 or upon acceleration of the Note upon an Event of Default as defined in the Loan Agreement.
The Loan Agreement contains the customary representations, warranties, covenants, indemnification rights as well as other terms typical for agreements of this nature.
The foregoing description of the Loan Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the Loan Agreement and the attached Form Draw Note and Security Agreement attached hereto as Exhibit 10.2.
Subordination Agreement
On May 31, 2026, in connection with the Loan Agreement and a certain Contingent Performance Note, dated as of May 31, 2026 (the “Senior Note”), issued by CCH, the Series, Cumberland Coal Corp, jointly and severally (collectively, the “Senior Note Borrowers”), in the principal amount of $25 Million in favor of Tacora Capital (the “Senior Indebtedness”), Range Cumberland entered into a Subordination Agreement with Tacora Capital and Cumberland Coal Corp. (the “Subordination Agreement”) pursuant to which Range Cumberland (the “Subordinated Creditor”) agreed to (i) subordinate the indebtedness of Cumberland Coal Corp. as evidenced by the Loan Agreement referenced above (“Subordinated Indebtedness”) to the Senior Indebtedness according to the terms and conditions of the Subordination Agreement and (ii) subordinate the Range Cumberland Security Interest granted under the Security Agreement entered into in connection with the Loan referenced above to all of the rights of Tacora Capital to payment under the Senior Note. Under the terms of the Subordination Agreement, Range Cumberland has agreed that, until the Senior Indebtedness has been paid in full, (i) no payments of principal, interest, or other amounts in respect of the Subordinated Indebtedness may be received by Range Cumberland prior to the payment in full of all of the Senior Indebtedness and (ii) all collateral described in the Security Agreement shall be subordinated and made junior and inferior in all respects to the rights of Tacora Capital to receive payment of the Senior Indebtedness in full, regardless of whether such rights are unsecured.
In addition to the above provisions, the Subordination Agreement contains customary representations, warranties, covenants, and indemnification provisions, as well as other terms typical for agreements of this nature.
The foregoing description of the Subordination Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Subordination Agreement, a copy of which the Company is attached hereto as Exhibit 10.3.
Range Bluegrass Letter Agreement
On May 31, 2026, Range Bluegrass Land, LLC (“Range Bluegrass”), a wholly-owned indirect subsidiary of Range Impact, Inc. (the “Company”) entered into a letter agreement (the “Letter Agreement”) with Tacora Capital, LP, a Delaware limited liability company (“Tacora Capital”) pursuant to which Range Bluegrass and Tacora Capital have agreed to work in good faith towards the creation of a joint venture arrangement with respect to monetization of certain unpermitted mineral reserve property located at the Premier Elkhorn mine complex in Kentucky owned by Range Bluegrass (the “New Frontier Mineral Reserves”). The parties further acknowledged that they were entering into the Letter Agreement in connection with: (i) Tacora Capital’s agreement to purchase Ten Million Dollars ($10,000,000) of the Company’s common stock; (ii) Tacora Capital’s sale of all of its equity in Cumberland Coal Investments, LLC, a Delaware limited liability company (“CCI”), and certain affiliated limited liability companies (collectively, “Series”), which own 100% of the common stock of Cumberland Coal Corporation, a surface and underground mining operator with locations in Kentucky and Virgina (“Cumberland Coal Corp.”) to Cumberland Coal Holdings, LLC, an Ohio limited liability company (“CCH”), pursuant to a Membership Interest Transfer Agreement; and (iii) an agreement by Range Cumberland, LLC, a wholly-owned indirect subsidiary of the Company, agreed to lend Cumberland Coal Corporation up to Four Million Dollars ($4,000,000) in connection with the reclamation and remediation of the New Frontier Mineral Reserves. None of CCI, the Series, Cumberland Coal Corp., or CCH are affiliated with the Company or any of its subsidiaries.
The Letter Agreement contains the customary provisions found in agreements of this type. The foregoing description of the Letter Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the Purchase Agreement attached hereto as Exhibit 10.4.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
On May 31, 2026, Range Bluegrass Land, LLC (“Range Bluegrass”), a wholly owned subsidiary of the Company, became subject to a contingent obligation in connection with a Contingent Performance Note (the “Note”) issued in favor of Tacora Capital, LP (“Tacora Capital”) by certain third-party obligors, including Cumberland Coal Holdings, LLC, Cumberland Coal Investments, LLC, certain affiliated series entities, and Cumberland Coal Corporation (collectively, the “Obligors”). The Note provides for aggregate contingent payments to Tacora Capital of up to $25,000,000, payable from the net proceeds of certain sale transactions involving the Obligors’ assets or equity.
Pursuant to Section 6.2 of the Note, Range Bluegrass agreed to certain contingent obligations with respect to any deficiency remaining under the Note after the completion of specified sale transactions by the Obligors (a “Contingent Performance Note Deficiency”). If a sale transaction results in a Contingent Performance Note Deficiency, Range Bluegrass and Tacora Capital agreed to work in good faith to enter into a joint venture with respect to maximizing the value of the New Frontier Mineral Reserves (as defined in the Letter Agreement referenced above in Item 1.01 and attached hereto as Exhibit 10.4), known as the “Investment Recovery Opportunity.” No other real or personal property of Range Bluegrass is included in the Investment Recovery Opportunity.
The Company was not a direct obligor under the Note. However, because Range Bluegrass is a wholly owned subsidiary of the Company, the Company may be indirectly exposed to financial obligations arising from Range Bluegrass’s contingent commitments under the Note with respect to the Investment Recovery Opportunity.
The contingent obligation is not fixed and will arise, if at all, only upon the occurrence of future events, including (i) the consummation of certain sale transactions by the Obligors and (ii) a resulting shortfall in payments under the Note. Accordingly, the amount and timing of any potential payments by a newly created joint venture between Range Bluegrass and Tacora, whose sole asset would be the New Frontier Mineral Reserves, cannot be determined at this time.
The foregoing description of the Note and the obligations contemplated by Section 6.2 does not purport to be complete and is qualified in its entirety by reference to the full text of the Contingent Performance Note, which is filed as an exhibit hereto as Exhibit 10.5 and incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 above is hereby incorporated by reference into this Item 3.02 in its entirety.
Pursuant to the Purchase Agreement, the Company issued 6,256,704 shares of the Company’s common stock to Tacora Capital on May 31, 2026. The sale of the Shares was exempt from the registration requirements of the Securities Act as transactions by an issuer not involved in any public offering under Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D promulgated under the Securities Act (“Regulation D”). The Company made this determination based on the representations of the Purchaser in the Purchase Agreement, including, but not limited to, that it is an “accredited investor” within the meaning of Rule 501 of Regulation D and that Purchaser had access to full and complete information about the Company and its investment.
Item 8.01 Other Events.
Press Release
On June 3, 2026, the Company issued a press release disclosing the transactions reflected in this Form 8-K. A copy of the press release is attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated herein by reference.
The information in this Item 8.01 (including Exhibit 99.1) is furnished pursuant to Item 8.01 and shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section. This Current Report will not be deemed an admission as to the materiality of any information in this Current Report that is required to be disclosed solely by Regulation FD.
Portions of this Current Report may constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 that are subject to risks and uncertainties. Although the Company believes any such statements are based on reasonable assumptions, there is no assurance that the actual outcomes will not be materially different due to a number of factors. Any such statements are made in reliance on the “safe harbor” protections provided under the Private Securities Litigation Reform Act of 1995. Additional information about significant risks that may impact the Company is contained in the Company’s filings with the Securities and Exchange Commission and may be accessed at www.sec.gov. The Company is under no obligation, and expressly disclaims any obligation, to update or alter its forward-looking statements, whether as a result of new information, future events or otherwise.
Item 9.01 Financial Statements and Exhibits.
| Exhibit No. | Description | |
| 10.1 | Stock Purchase Agreement, dated May 31, 2026, between Range Impact, Inc. and Tacora Capital, LP. | |
| 10.2 | Loan Agreement, dated May 31, 2026, between Range Cumberland, LLC and Cumberland Coal Corporation. | |
| 10.3 | Subordination Agreement, dated May 31, 2026, by and among Range Cumberland, Tacora Capital, LP and Cumberland Coal Corporation. | |
| 10.4 | Letter Agreement, dated May 31, 2026, between Range Bluegrass Land, LLC and Tacora Capital, LP | |
| 10.5 | ||
| 99.1 | Press Release, dated June 3, 2026. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| RANGE IMPACT, INC. | ||
| Dated: June 3, 2026 | By: | /s/ Michael Cavanaugh |
| Name: | Michael Cavanaugh | |
| Title: | Chief Executive Officer | |
EXHIBIT INDEX
| 10.1 | Stock Purchase Agreement, dated May 31, 2026, between Range Impact, Inc. and Tacora Capital, LP. | |
| 10.2 | Loan Agreement, dated May 31, 2026, between Range Cumberland, LLC and Cumberland Coal Corporation. | |
| 10.3 | Subordination Agreement, dated May 31, 2026, by and among Range Cumberland, Tacora Capital, LP and Cumberland Coal Corporation. | |
| 10.4 | Letter Agreement, dated May 31, 2026, between Range Bluegrass Land, LLC and Tacora Capital, LP | |
| 10.5 | ||
| 99.1 | Press Release, dated June 3, 2026. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
Exhibit 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this “Agreement”) is entered into as of May 31, 2026 (the “Effective Date”) by and between Range Impact, Inc., a Nevada corporation (the “Company”), and Tacora Capital, LP, a Delaware limited partnership (the “Purchaser”). Each of the Company and the Purchaser shall individually be referred to as a “Party” and together as the “Parties” to this Agreement.
RECITALS:
WHEREAS, the Purchaser shall purchase from the Company, and the Company shall sell to the Purchaser, Ten Million Dollars ($10,000,000) (the “Commitment Amount”) of Common Shares of the Company. “Common Shares” shall mean shares of the Company’s common stock, with a par value of $0.001 per share, and any other class of Company securities into which such shares may hereafter be reclassified or changed; and
WHEREAS, simultaneously with the closing of the issuance of Common Shares referenced in the foregoing recital, Range Cumberland, LLC, an Ohio limited liability company and wholly owned subsidiary of the Company, shall issue a secured loan with a profits interests (“Secured Loan”) in an amount up to Four Million Dollars ($4,000,000) to Cumberland Coal Corporation, a Delaware corporation owned by a non-affiliated third party;
WHEREAS, the Secured Loan shall be subordinate to the Contingent Performance Note (as defined in that certain Membership Interest Transfer Agreement of even date with this Agreement between Purchaser and Cumberland Coal Holdings, LLC) of Purchaser and Purchaser and Range Cumberland, LLC shall enter into a subordination agreement confirming the priority of said Contingent Performance Note over the Secured Loan.
NOW THEREFORE, in consideration of the foregoing recitals, which shall be considered an integral part of this Agreement, the covenants and agreements set forth hereafter, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement shall have the meaning ascribed to them in this Section 1:
“Action” has the meaning assigned to it in Section 3.9.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Agreement” has the meaning assigned to it in the Preamble.
“AML/KYC” means all applicable anti-money laundering, counter-terrorist financing, and know-your-customer laws, regulations, and guidelines, including, without limitation, the U.S. Bank Secrecy Act, the USA PATRIOT Act, the rules and regulations of the Financial Crimes Enforcement Network, and any similar laws or regulations in any jurisdiction applicable to the Purchaser, the Company or their Affiliates, together with internal policies and procedures designed to ensure compliance with such requirements.
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“Closing” has the meaning assigned to it in Section 2.3(b).
“Closing Date” has the meaning assigned to it in Section 2.3(b).
“Commission” has the meaning assigned to it in Section 3.4.
“Commitment Amount” has the meaning assigned to it in the Recitals.
“Commitment Period” means the time period that starts with the Effective Date and ends on the day that corresponds with the eleven (11)-month anniversary of the Effective Date.
“Common Shares” has the meaning assigned to it in the Recitals.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time shares of common stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of common stock of the Company.
“Company” has the meaning assigned to it in the Preamble.
“Company Indemnitees” has the meaning assigned to it in Section 6.2.
“Company Indemnitor” has the meaning assigned to it in Section 6.1.
“Disqualification Event” has the meaning assigned to it in Section 4.16.
“Effective Date” has the meaning assigned to it in the Preamble.
“Evaluation Date” has the meaning assigned to it in Section 3.12.
“Exchange Act” has the meaning assigned to it in Section 3.6.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.
“GAAP” has the meaning assigned to it in Section 3.7.
“Initial Closing” has the meaning assigned to it in Section 2.3(a).
“Initial Closing Date” has the meaning assigned to it in Section 2.3(a).
“Investor Indemnitees” has the meaning assigned to it in Section 6.1.
“Investor Indemnitor” has the meaning assigned to it in Section 6.2.
“Knowledge” shall mean, with respect to the Company, the actual knowledge after due inquiry of Michael Cavanaugh.
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“Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse Effect” has the meaning assigned to it in Section 3.1.
“Party” has the meaning assigned to it in the Preamble.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.
“Purchase Price Per Share” has the meaning assigned to it in Section 2.2.
“Purchaser” has the meaning assigned to it in the Preamble.
“Purchaser Covered Person” has the meaning assigned to it in Section 4.16.
“Registration Statement” has the meaning assigned to it in Section 5.7(a).
“Relevant Trading Days” means the Trading Days of the Company’s Common Shares on the Trading Market during the calendar month in which a particular Closing Date occurs, provided that only the Trading Days preceding such Closing Date shall be considered.
“Required Filings” has the meaning assigned to it in Section 3.4.
“SEC Reports” has the meaning assigned to it in Section 3.7.
“Second Closing Date” through the “Twelfth Closing Date” have the meanings assigned to them in Section 2.3(b).
“Secured Loan” has the meaning assigned to it in the Recitals.
“Securities Act” has the meaning assigned to it in Section 2.3(c).
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of common stock).
“Subsequent Closing” has the meaning assigned to it in Section 2.3(b).
“Subsequent Closing Date” has the meaning assigned to it in Section 2.3(b).
“Subsidiary” means any Person in which the Company has a direct or indirect equity interest.
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“Suspension Event” has the meaning assigned to it in Section 5.7(h).
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Shares are listed or quoted for trading on the date in question: the NYSE Market, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, OTCQB, OTCQX or OTC Pink Markets operated by OTC Markets Group, Inc. (or any successors to any of the foregoing).
“Transfer Agent” means the Securities Transfer Corporation, the current transfer agent of the Company, with a mailing address of 2901 North Dallas Parkway, Suite 380, Plano, Texas 75093, and any successor transfer agent of the Company.
“Volume Weighted Average Price” means the volume-weighted average price per Common Share on the Trading Market for all trades executed during the Relevant Trading Days, as reported by the applicable Trading Market.
2. Purchase and Sale of Common Shares.
2.1 Overall Transaction; Sale and Issuance of Common Shares. During the Commitment Period and subject to the terms and conditions set forth herein, the Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, a number of Common Shares having an aggregate value equal to the Commitment Amount.
2.2 Purchase Price Per Share. At each Closing (as defined in Section 2.3(b) below), the purchase price to be paid by the Purchaser for each Common Share sold hereunder (the “Purchase Price Per Share”) shall be calculated as the Volume Weighted Average Price.
2.3 Initial and Subsequent Closings.
(a) Initial Closing. On the Effective Date (sometimes referred to herein as the “Initial Closing Date”), the Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, the number of Common Shares that is equal to the quotient obtained by dividing the investment amount that corresponds to the Initial Closing Date on Exhibit A, with the Purchase Price Per Share applicable to the Initial Closing. The time at which all of the transactions on the Initial Closing Date contemplated by this Agreement occur shall be referred to as the “Initial Closing”. On the Initial Closing Date, the Purchaser shall pay to the Company (via wire transfer to a bank account designated in writing by the Company) the investment amount that is set forth opposite to the Initial Closing Date on Exhibit A.
(b) Subsequent Closings. After the Initial Closing Date, the Company and the Purchaser shall also consummate eleven (11) more closings (each a “Subsequent Closing”) on each of the eleven dates that are defined as the “Second Closing Date” through the “Twelfth Closing Date” on Exhibit A (each, a “Subsequent Closing Date”). The term “Closing” as used in this Agreement shall mean the Initial Closing and each Subsequent Closing, and the term “Closing Date” shall mean the Initial Closing Date and each Subsequent Closing Date. On each Subsequent Closing Date, the Purchaser shall pay to the Company (via wire transfer to a bank account designated in writing by the Company) the investment amount that is shown opposite each Subsequent Closing Date on Exhibit A. In addition, on each Subsequent Closing Date, the Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, the number of Common Shares that is equal to the quotient obtained by dividing the investment amount that corresponds to the applicable Subsequent Closing Date on Exhibit A, with the Purchase Price Per Share applicable to each such Subsequent Closing.
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(c) Closing Logistics. The Initial Closing and the Subsequent Closings shall take place remotely via the electronic exchange of documents and signatures. At each Closing, the Company shall deliver to the Transfer Agent (with a copy to the Purchaser) irrevocable instructions instructing the Transfer Agent, on an expedited basis, to issue and hold in book entry the number of Common Shares being purchased by the Purchaser on such Closing Date. Such book entry shall bear appropriate legends referring to the fact that such Common Shares were sold in reliance upon an exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”).
(d) Fractional Shares. To the extent that calculation of number of Common Shares to be sold to the Purchaser pursuant to this Agreement at a particular Closing yields a fractional value, then the Company shall round up the number of Common Shares issued to the Purchaser at such Closing to the next whole number of Common Shares.
3. Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser that the following statements are true and correct as of the date hereof and as of each Closing Date, unless a particular representation speaks or relates to a particular event or time frame by its own terms, in which case such representation or warranty shall be true and correct as of such date:
3.1 Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
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3.2 Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of each of this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith (other than the Company’s obligation to make the Required Filings, as such term is defined in Section 3.4). This Agreement has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, and (ii) insofar as indemnification and contribution provisions may be limited by applicable law.
3.3 No Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Common Shares and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Filings, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
3.4 Filings, Consents and Approvals. Except for those that have already been obtained, the Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection with the execution, delivery and performance by the Company of this Agreement, other than: (i) the filings required by the Securities and Exchange Commission (the “Commission”) related to the Common Shares in connection with its entry on this Agreement and consummation of the transactions contemplated hereby, and (ii) such filings as are required to be made under applicable state securities laws (collectively, the “Required Filings”).
3.5 Issuance of the Common Shares. The Common Shares are duly authorized and, when issued and paid for on each Closing Date in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens of every type and kind, except for any restrictions on transferability of the Common Shares imposed by applicable securities laws.
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3.6 Capitalization. As of the date of this Agreement, the total authorized capital stock of the Company consists of 1,000,000,000 shares of common stock, of which 113,316,078 are issued and outstanding, and 16,253,543 are reserved for issuance pursuant to options and warrants exercisable or exchangeable for shares of common stock. The Company has not issued any capital stock since its most recently filed current or quarterly report under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. Except as set forth in this Section 3.6 or as a result of the purchase and sale of the Common Shares hereunder, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of common stock, or contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional shares of common stock or Common Stock Equivalents. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Common Shares.
3.7 SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two (2) years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
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3.8 Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock, and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Common Shares contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made.
3.9 Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the Knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability of this Agreement or the Common Shares, or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect.
3.10 Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of , nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.
3.11 Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries, (ii) equipment liens resulting from financing obtained in connection with the acquisition of equipment by the Company and its Subsidiaries, and (iii) liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in material compliance.
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3.12 Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated by the Commission, in each case that are effective as of the date hereof and as of the Initial Closing Date and will be at each Subsequent Closing Date. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
3.13 Brokers’ Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, or investment banker with respect to the transactions contemplated by this Agreement.
3.14 Listing and Maintenance Requirements. The shares of common stock of the Company are registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its Knowledge is likely to have the effect of, terminating the registration of the shares of common stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration. The shares of common stock are currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
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3.15 Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by this Agreement, to the Company’s Knowledge, neither the Company nor any Person acting on its behalf has knowingly provided the Purchaser or its agents or counsel with material, non-public information that has not been publicly disclosed in accordance with applicable securities laws. The Company acknowledges that the Purchaser may rely on the foregoing representation in effecting transactions in securities of the Company, subject to applicable law.
3.16 No Integrated Offering. Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 4, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Common Shares to be integrated with prior offerings by the Company for purposes of the Securities Act which would require the registration of any such securities under the Securities Act.
3.17 No General Solicitation. Neither the Company nor any Person acting on behalf of the Company has offered or sold any of the Common Shares by any form of general solicitation or general advertising.
4. Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Company that the following statements are true and correct as of the date hereof and as of each Closing Date, unless a particular representation speaks or relates to a particular event or time frame by its own terms, in which case such representation or warranty shall be true and correct as of such date:
4.1 Organization; Authority. This Agreement has been duly executed by the Purchaser, and when delivered by the Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
4.2 Understandings or Arrangements. The Purchaser is acquiring the Common Shares as principal for its own account and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Common Shares (this representation and warranty not limiting the Purchaser’s right to sell the Common Shares in compliance with applicable federal and state securities laws). The Purchaser acknowledges that in consummating the transactions contemplated by this Agreement, it is not relying upon any express or implied representations or warranties of any nature, whether in writing, orally or otherwise, made by or on behalf of the Company or any of its Affiliates with respect to any fact or matter relating to the condition or value of the Company, the Common Shares, or other assets, properties or business of the Company, other than as specifically set forth in this Agreement. The representations and warranties made by the Company in this Agreement are the only representations of the Company. .
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4.3 No Conflict. The execution and performance of this Agreement by the Purchaser do not conflict with or violate any law applicable to the Purchaser or any agreement binding on the Purchaser.
4.4 Experience of Purchaser. The Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Common Shares, and has so evaluated the merits and risks of such investment. The Purchaser is able to bear the economic risk of an investment in the Common Shares and is able to afford a complete loss of such investment. The Purchaser acknowledges that it has conducted its own independent investigation on the value of the Common Shares and of the financial condition, assets, liabilities, properties and projected operations of the Company and its Subsidiaries.
4.5 General Solicitation. The Purchaser is not purchasing the Common Shares pursuant to any advertisement, article, notice or other communication regarding the Common Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
4.6 No Company Advice. The Purchaser understands that nothing in this Agreement or any other materials presented to the Purchaser in connection with the purchase and sale of the Common Shares constitutes legal, tax or investment advice by the Company or any individual or entity acting on behalf of the Company. The Purchaser has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Common Shares.
4.7 Sufficiency of Funds. The Purchaser hereby represents and warrants that it has sufficient funds readily available to satisfy in a timely manner all funding obligations due to the Company under this Agreement up to the amount of the Commitment Amount at the time for the Initial Closing Date and each Subsequent Closing Date.
4.8 Forward-Looking Information. The Purchaser understands that the Company may provide the Purchaser with certain projections and other forward-looking information regarding the Company and the Common Shares. Projections and forward-looking information are inherently uncertain and should not be, and the Purchaser acknowledges that they are not being, relied upon by the Purchaser in making the decision to purchase the Common Shares. Actual results may vary significantly from such projections or forward-looking information.
4.9 Principal Place of Business. For purposes of complying with state securities laws, the Purchaser represents that it is a limited partnership duly organized in the State of Delaware with its principal place of business in the State of Texas.
4.10 Brokers’ Fees. No Person will have, as a result of the transactions contemplated by this Agreement, any valid right, interest or claim against the Company or upon the Purchaser for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Purchaser.
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4.11 Compliance Information. The Purchaser shall provide such information reasonably requested by the Company or the Transfer Agent to comply with securities, exchange, Trading Market, AML/KYC, tax and sanctions laws.
4.12 OFAC/Sanctions. The Purchaser is not a person identified on any sanctions listed administered by OFAC or the U.S. Department of State or otherwise the subject of sanctions.
4.13 Anti-Corruptions; AML Compliance. The Purchaser is in compliance with applicable anti-corruption (including the FCPA) and anti-money laundering laws. The funds used to purchase the Common Shares are not the proceeds of criminal activity.
4.14 Restricted Securities. The Purchaser understands that the Common Shares are “restricted securities” being issued to the Purchaser in reliance upon Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder, and have not been registered under the Securities Act and may not be offered, resold, pledged or otherwise transferred except (i) pursuant to an exemption from registration under the Securities Act or pursuant to an effective registration statement in compliance with Section 5 of the Securities Act, and (ii) in accordance with all applicable securities laws of the states of the United States and other jurisdictions.
4.15 Investor Status. At the very least, the Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
4.16 No Disqualification Event. No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to the Purchaser or, to the Purchaser’s knowledge, any of its stockholders, members, managers, general or limited partners, directors, affiliates or officers (collectively, the “Purchaser Covered Persons”). The Purchaser has exercised reasonable care to determine whether any Purchaser Covered Person is subject to a Disqualification Event.
5. Certain Covenants.
5.1 Reservation of Common Stock. As of the date hereof, the Company has reserved and thereafter the Company shall continue to reserve and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue the Common Shares pursuant to this Agreement.
5.2 Blue Sky Filings. The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Common Shares for, sale to the Purchaser at the Closing under applicable securities or “Blue Sky” laws of the states of the United States and shall provide evidence of such actions promptly upon request of the Purchaser.
5.3 Certain Transactions and Confidentiality. The Purchaser covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending on the Twelfth Closing Date. In addition, the Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company, the Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in this Agreement. The Purchaser acknowledges that the Company will publicly disclose this Agreement and its contents in a filing to be made by the Company with the Commission on Form 8-K shortly after the Effective Date.
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5.4 Listing of Common Stock. The Company hereby agrees to use commercially reasonable efforts to maintain the listing or quotation of its Common Shares on the Trading Market on which it is currently listed. The Company further agrees, if the Company applies to have its Common Shares listed for trading on any Trading Market other than its current Trading Market, it will then include in such application all of the Common Shares, and will take such other action as it determines is reasonably necessary to cause all of the Common Shares to be listed or quoted on such other Trading Market as promptly as possible.
5.5 Purchaser Securities Filings. The Purchaser acknowledges that it is solely responsible for complying with any applicable reporting or filing requirements under the Exchange Act, including, without limitation, Sections 13 and 16 thereof, and the rules and regulations promulgated thereunder, in connection with its ownership of, or transactions in, the Company’s securities (including the Common Shares purchased hereunder) whether arising as of the date hereto, the Initial Closing Date or at any time thereafter.
5.6 Use of Proceeds. The Company will use the proceeds from the sale of the Common Shares under this Agreement to fund the Secured Loan, for general corporate and working capital purposes, acquisitions of assets, businesses or operations, and for other purposes that the Company’s Board of Directors deems to be in the interests of the Company.
5.7 Registration of the Common Shares.
(a) The Company agrees to file with the Commission, at its sole cost and expense, a registration statement on Form S-1 registering the resale of the Common Shares by the Purchaser (the “Registration Statement”), as soon as reasonably practicable, but in any event no later than six (6) months following the Twelfth Closing Date. The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after such filing. The Company shall not be obligated to cause the Registration Statement to be declared effective by any specific date, and any time periods for effectiveness shall be subject to the Company’s compliance with applicable law and the rules and guidance of the Commission.
(b) The Company shall use commercially reasonable efforts to provide the Purchaser with a draft of the Registration Statement for review a reasonable period prior to filing; provided, however, that the Company shall retain sole discretion with respect to the form, content and timing of such Registration Statement and shall not be required to delay the filing thereof as a result of any comments by the Purchaser. Notwithstanding the foregoing, if the Commission limits the number of Common Shares that may be included in the Registration Statement or requires that any portion of such shares not be registered, the Company shall include in such Registration Statement the maximum number of Common Shares permitted by the Commission. The Purchaser acknowledges that it is the sole selling shareholder under the Registration Statement, and no allocation among multiple selling shareholders shall be required.
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(c) The Company shall have an absolute obligation to file as many additional registration statements or amendments to register any Common Shares not included in the Registration Statement as requested by Purchaser, if and when Purchaser requests the Company to file any additional Registration Statement(s) to register any Common Shares not registered under the initial or any subsequent Registration Statement(s).
(d) The Company shall use commercially reasonable efforts to keep the Registration Statement effective with respect to the Purchaser until the latest to occur of (i) two (2) years from the effectiveness of the Registration Statement, (ii) the date on which all of the Common Shares covered thereby shall have been sold, and (iii) the date on which the Purchaser is able to sell all of its Common Shares pursuant to Rule 144 without restriction.
(e) If requested by the Purchaser, the Company shall use commercially reasonable efforts to (i) remove, or cause the removal of, any restrictive legends from any Common Shares being sold pursuant to an effective Registration Statement or in accordance with Rule 144 at the time of sale of such Common Shares, and (ii) cause its legal counsel to deliver such opinions as may be reasonably required in connection therewith, in each case subject to the Company’s receipt of customary representations, certifications and other documentation reasonably requested by the Company, its counsel or the Transfer Agent, to confirm that such legends are no longer required under applicable law. The Company shall not be required to effect any such legend removal if (A) it reasonably determines that such removal is not in compliance with applicable law, or (B) the Purchaser has not complied with its obligations hereunder.
(f) From and after such time as Rule 144 is available for resales of the Common Shares and for so long as the Purchaser holds such shares, the Company shall use commercially reasonable efforts to (i) file in a timely manner all reports required to be filed by it under the Exchange Act (to the extent that the Company is then subject to such reporting requirements) and (ii) maintain the availability of public information as required under Rule 144.. Upon the Purchaser’s reasonable request, the Company shall furnish or make available copies of its publicly filed reports and, if reasonably available, a customary Rule 144 compliance statement.
(g) The Company’s obligations to include the Common Shares in the Registration Statement shall be subject to the Purchaser furnishing to the Company such information regarding itself, the Common Shares held by it and the intended method of disposition as may be reasonably requested by the Company and executing such customary agreements as a selling stockholder as the Company may reasonably request.
(h) The Company shall have the right, from time to time, to delay or suspend the filing, effectiveness or use of the Registration Statement if the Company determines in good faith that such action is necessary to (i) avoid a material misstatement or omission, (ii) comply with applicable law, or (iii) avoid premature disclosure of material non-public information or interference with a bona fide business or financing transaction of the Company (each such circumstance, a “Suspension Event”); provided, that that no such suspension shall exceed ninety (90) consecutive days or an aggregate of one hundred twenty (120) days in any twelve (12)-month period, and the Company shall use commercially reasonable efforts to resume effectiveness or use as soon as reasonably practicable.
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(i) Upon receipt of written notice from the Company of a Suspension Event (which notice shall not contain any material nonpublic information, the Purchaser shall promptly discontinue offers and sales of the Common Shares pursuant to the Registration Statement (excluding sales under Rule 144) until the Purchase is advised by the Company that use of the Registration Statement may be resumed.
5.8 Further Assurances. Each of the Company and the Purchaser shall use commercially reasonable efforts to timely satisfy each of the conditions and covenants applicable to them as set forth in this Agreement.
6. Indemnification.
6.1 Indemnification by the Company. The Company (for purposes of this Section 6.1, the “Company Indemnitor”) shall indemnify and hold harmless the Purchaser and its partners, officers and directors (collectively, the “Investor Indemnitees”) from and against any and all losses, claims, liabilities and damages, and reasonable out-of-pocket expenses (including reasonable attorneys’ fees) to the extent arising out of: (a) any material misrepresentation or material breach of any representation or warranty made by the Company Indemnitor in this Agreement; or (b) any material breach of any covenant or agreement of the Company in this Agreement. The Company shall not be liable under this Section 6.1 (i) for any amounts resulting from the gross negligence, bad faith or willful misconduct of any Investor Indemnitee, or (ii) to the extent such losses arise out of or are based upon information furnished in writing by or on behalf of the Purchaser for inclusion in any Registration Statement or other filing. In the case of any third-party claim for which indemnification may be sought hereunder, the Purchaser shall have the right to assume the defense thereof with counsel reasonably acceptable to the Company. The Company shall have the right to participate in such defense with its own counsel at its own expense. No settlement of any such claim shall be entered into without the Purchaser’s prior written consent (not to be unreasonably withheld, conditioned or delayed).
6.2 Left Intentionally Blank.
6.3 Timing of Indemnification Payments. Any indemnification payments under Sections 6.1 or 6.2, as appropriate, shall be made promptly following a final determination of liability or settlement.
7. Miscellaneous.
7.1 Termination. This Agreement may be terminated by written mutual agreement of the Company and the Purchaser. Further, notwithstanding anything to the contrary contained in this Agreement, the Purchaser shall have no obligation to purchase any Common Shares or otherwise fund any portion of the Commitment Amount on any Subsequent Closing Date if, at any time prior to such Subsequent Closing Date: (a) the Company has commenced, or had commenced against it, any voluntary or involuntary proceeding under any applicable bankruptcy, insolvency, reorganization, liquidation, receivership, conservatorship or similar law; (b) the Company has made a general assignment for the benefit of creditors; or (c) the Company has been dissolved, liquidated, wound up, or has otherwise gone out of business. Upon the occurrence of any of the foregoing events, the Purchaser’s obligation to fund any unfunded portion of the Commitment Amount shall automatically terminate without further action by the Purchaser and without liability to the Company or any other Person.
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7.2 Fees and Expenses. Except as expressly set forth in this Agreement to the contrary, each Party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such Party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company), stamp taxes and other taxes and duties levied in connection with the delivery of any Common Shares to the Purchaser.
7.3 Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, which the Parties acknowledge have been merged into this Agreement.
7.4 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered via email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages of this Agreement.
7.5 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed by the Company and the Purchaser. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any Party to exercise any right hereunder in any manner impair the exercise of any such right.
7.6 Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
7.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. Neither Party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other Party.
7.8 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the Parties and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
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7.9 Governing Law; Venue. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Ohio, without regard to the principles of conflicts of law thereof. Each Party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a Party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in Cuyahoga County in the State of Ohio. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Cuyahoga County in the State of Ohio for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each Party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such Party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law
7.10 WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
7.11 Survival. Unless otherwise set forth in this Agreement, the representations and warranties of the Company and the Purchaser shall survive the execution and delivery of this Agreement for a period of twelve (12) months after the Twelfth Closing Date, provided that any claim made by the Company or the Purchaser within such time period shall survive until resolved. Notwithstanding the foregoing, the representations and warranties made in Sections 3.1, 3.2, 3.3, 4.1, 4.2, and 4.3 shall survive indefinitely.
7.12 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each Party and delivered to each other Party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such “.pdf” signature page was an original thereof.
7.13 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the Parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
7.14 Construction. The Parties agree that each of them and their respective counsel have reviewed and had an opportunity to revise the Agreement and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Agreement or any amendments thereto. In addition, each and every reference to share prices, shares of common stock and Common Shares in this Agreement shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the common stock of the Company that occur after the date of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| COMPANY: | ||
| RANGE IMPACT, INC., | ||
| a Nevada corporation | ||
| By: | ||
| Name: | Michael Cavanaugh | |
| Title: | Chief Executive Officer | |
| Address: | 200 Park Avenue, Suite 400 | |
| Cleveland, Ohio 44122 | ||
| Attn: | Michael Cavanaugh, CEO | |
| E-Mail: | [email protected] | |
| PURCHASER: | ||
| TACORA CAPITAL, LP, | ||
| a Delaware limited partnership | ||
| By: | ||
| Name: | Keri Findley | |
| Title: | Authorized Signatory | |
| Address: | 2505 Pecos Street | |
| Austin, Texas 78703 | ||
| Attn: | Keri Findley, CEO | |
| E-Mail: | [email protected] | |
Signature Page to Stock Purchase Agreement
Exhibit A
SCHEDULE OF CLOSINGS AND INVESTMENT AMOUNTS
| No. of Closings | Applicable Closing Date | Corresponding Investment Amount | ||
| 1 | Initial Closing Date, which is the same as the Effective Date of this Agreement. | $1,750,000 | ||
| 2 | “Second Closing Date” is the date that corresponds with the one-month anniversary of the Effective Date. |
$750,000 | ||
| 3 | “Third Closing Date” is the date that corresponds with the second-month anniversary of the Effective Date. | $750,000 | ||
| 4 | “Fourth Closing Date” is the date that corresponds with the third-month anniversary of the Effective Date. | $750,000 | ||
| 5 | “Fifth Closing Date” is the date that corresponds with the fourth-month anniversary of the Effective Date. | $750,000 | ||
| 6 | “Sixth Closing Date” is the date that corresponds with the fifth-month anniversary of the Effective Date. | $750,000 | ||
| 7 | “Seventh Closing Date” is the date that corresponds with the sixth-month anniversary of the Effective Date. | $750,000 | ||
| 8 | “Eighth Closing Date” is the date that corresponds with the seventh-month anniversary of the Effective Date. | $750,000 | ||
| 9 | “Ninth Closing Date” is the date that corresponds with the eighth-month anniversary of the Effective Date. | $750,000 | ||
| 10 | “Tenth Closing Date” is the date that corresponds with the ninth-month anniversary of the Effective Date. | $750,000 | ||
| 11 | “Eleventh Closing Date” is the date that corresponds with the tenth-month anniversary of the Effective Date. | $750,000 | ||
| 12 | “Twelfth Closing Date” is the date that corresponds with the eleventh-month anniversary of the Effective Date. | $750,000 | ||
| TOTAL | $10,000,000 |
Exhibit 10.2
Loan Agreement
This Loan Agreement (this “Agreement”) is made as of May 31, 2026, by and between Cumberland Coal Corporation, a Delaware corporation (“Borrower”), and Range Cumberland, LLC, an Ohio limited liability company (“Lender”). Borrower and Lender hereby agree as follows:
1. Background.
1.1. Recitals. Borrower desires to borrow funds and obtain other financial accommodations from Lender and Lender is willing to extend such financial accommodations to Borrower under the terms and conditions set forth herein.
2. Loan and Term.
2.1. Loan and Note. Subject to the terms and conditions hereof and in reliance upon the representations and warranties of Borrower herein, Lender agrees to make advances to Borrower (each an “Advance”) up to the maximum principal amount of Four Million and 00/100 Dollars ($4,000,000.00) (collectively, the “Loan”), subject to the terms and conditions set forth in this Agreement. Borrower shall duly execute, issue, and deliver to Lender the Draw Note executed by Borrower (the “Note”) payable to the order of Lender to evidence the borrowing.
2.2. Loan Term. The entire outstanding principal balance of the Note, together with all accrued interest, shall become due and payable as provided for in the Note.
2.3. Interests. The outstanding principal balance of the Loan shall bear interest at the rate, and shall be payable at the times, set forth in the Note. Interest shall accrue on all amounts outstanding under the Loan in accordance with the terms of the Note. Lender may, in its sole discretion, elect to permit accrued interest to be paid in kind and capitalized to principal as provided in the Note.
2.4. Maximum Interest. In no event shall the interest rate and other charges hereunder exceed the highest rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that a court determines that Lender has received interest and other charges hereunder in excess of the highest rate applicable hereto, such excess shall be deemed received on account of, and shall automatically be applied to reduce, the Loan, other than interest, in the inverse order of maturity, and the provisions hereof shall be deemed amended to provide for the highest permissible rate. If there are no amounts outstanding under the Note, Lender shall refund to Borrower such excess.
2.5. Costs. Borrower shall pay to Lender any and all costs and expenses (including, without limitation, reasonable Attorneys’ Fees, court costs, litigation and other expense) incurred or paid by Lender in documenting, processing and closing this Loan, and in establishing, maintaining, protecting or enforcing any of Lender’s rights or Borrower’s Obligations, including, without limitation, UCC searches and UCC filing fees, any and all such costs and expenses incurred or paid by Lender in defending Lender’s title or right to the Collateral or in enforcing its right to the Collateral, and all costs of filing any of the Loan Documents and financing, continuation or termination statements with respect to any Collateral.
3. Conditions Precedent to Closing; Advances.
3.1. Closing. Lender shall not be obligated to close the Loan to Borrower under this Agreement, unless the following conditions precedent shall have been satisfied, except as otherwise allowed for herein:
(a) That Lender has received all of the items set forth in Section 3.2 hereof.
(b) That the representations and warranties made in this Agreement shall be true and correct as and on the Effective Date.
(c) That there shall be no Defaults or Events of Default under this Agreement or the Loan Documents.
(d) That all costs and expenses are paid as due pursuant to the terms of this Agreement.
3.2. Required Items. The items to be delivered to Lender by Borrower as required by Section 3.1(a) shall include but not be limited to:
(a) The Note in the form attached hereto as Exhibit A and the Security Agreement in the form attached hereto as Exhibit B, in each case duly executed by Borrower and any other party thereto, as applicable, and delivered to Lender.
(b) The Organizational Documents.
(c) Copies of any existing leases, including, but not limited to (i) that certain Coal Mining Lease, effective July 1, 2025, by and between Borrower and ACIN LLC and (ii) that certain Coal Lease, effective August 22, 2025, by and between Borrower and Penn Virginia Operating Co., LLC (including any amendments to the foregoing, collectively, the “Leases”).
(d) Such other certificates and documents as Lender shall reasonably request.
3.3 Conditions to Each Advance. Upon execution and delivery of this Agreement and the Loan Documents, Lender may disburse Advances to pay Lender’s costs and expenses and the professional fees of Lender’s attorneys and other professionals. Lender shall have no obligation to make additional Advances unless, as to each such loan, the following statements shall be true and correct:
(a) At least three (3) business days prior to the requested funding date, Lender shall have received a draw request, duly executed by Borrower and substantially in the form of Exhibit C (each a “Draw Request”). Borrower may submit no more than one (1) Draw Request in any calendar month.
(b) Each of the representations and warranties contained herein and in the Loan Documents shall be correct in all material respects, and each shall be deemed to be reaffirmed as of the date of each such Advance;
(c) No event shall have occurred and be continuing, or would result from such Advance, which constitutes an Event of Default, or would constitute an Event of Default but for the requirement that notice be given or lapse of time or both; and
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(d) The aggregate unpaid principal amount of the Advance after giving effect to such distribution shall not violate the lending limits set forth in Section 2.1 of this Agreement.
The acceptance by Borrower of the proceeds of each Advance shall be deemed to constitute a representation and warranty by Borrower that the conditions in this Section 3.3 of the Agreement, other than those that have been waived in writing by Lender, have been satisfied.
3.4. Use of Borrowings. Borrower shall use the borrowing only for business purposes and for the purpose of closing this Loan, paying the Lender’s costs and expenses, and other professional fees.
4. Representations And Warranties. Borrower hereby warrants and represents to Lender for the purpose of inducing Lender to make the Loan the following:
4.1. Organization and Qualification. Borrower is duly organized, validly existing and in good standing under the laws of the State of its incorporation, organization or formation, has the power and authority to carry on its business and to enter into and perform all documents relating to this loan transaction, and is qualified and licensed to do business in each jurisdiction in which such qualification or licensing is required. All information provided to Lender with respect to Borrower and its operations is true and correct.
4.2. Due Authorization. The execution, delivery and performance by Borrower of the Loan Documents have been duly authorized by all necessary action, and shall not contravene any law or any governmental rule or order binding on Borrower, or the Organizational Documents of Borrower, nor violate any agreement or instrument by which Borrower is bound nor result in the creation of a Lien on any assets of Borrower except the Lien granted to Lender herein. Borrower has duly executed and delivered to Lender the Loan Documents and they are valid and binding obligations of Borrower enforceable according to their respective terms, except as limited by equitable principles and by bankruptcy, insolvency or similar laws affecting the rights of creditors generally. No notice to, or consent by, any governmental body is needed in connection with this transaction.
4.3. Litigation. Except as disclosed to Lender in writing, there are no suits or proceedings pending or threatened against or affecting Borrower, and no proceedings before any governmental body are pending or threatened against Borrower except as otherwise specifically disclosed to Lender on or prior to the Effective Date.
4.4. Business. Except as disclosed to Lender in writing, Borrower is not a party to or subject to any agreement that is in default or restriction that or an agreement which if in default may have a material adverse effect on Borrower’s business, properties or prospects.
4.5. Licenses, etc. Borrower has obtained any and all licenses, permits, franchises, governmental authorizations, intellectual property rights, or other rights necessary for the ownership of its properties and the advantageous conduct of its business. Borrower possesses adequate licenses, permits, franchises, governmental authorizations, and intellectual property rights to continue to conduct its business as heretofore conducted by it, without any conflict with the rights of any other person or entity. All of the foregoing are in full force and effect and none of the foregoing are in known conflict with the rights of others.
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4.6. Laws. Borrower is in material compliance with all laws, regulations, rulings, orders, injunctions, decrees, conditions or other requirements applicable to or imposed upon Borrower by any law or by any governmental authority, court or agency.
4.7. Title. Borrower has good and marketable title to the assets reflected on the most recent balance sheet submitted to Lender, free and clear from all Liens and encumbrances of any kind, except for Permitted Liens.
4.8. No Defaults. Except as disclosed to Lender in writing, Borrower is in compliance with all material agreements applicable to it and there does not now exist any default or violation by Borrower of or under any of the terms, conditions or obligations of (a) its Organizational Documents, (b) any indenture, mortgage, deed of trust, franchise, permit, contract, agreement or other instrument to which Borrower is a party or by which it is bound, or (iii) the Leases.
4.9. Subsidiaries and Partnerships. Borrower has no Subsidiaries and is not a party to any partnership agreement or joint venture agreement.
4.10. ERISA. Borrower and all individuals or entities that, along with Borrower, would be treated as a single employer under ERISA or the Internal Revenue Code of 1986, as amended (an “ERISA Affiliate”), are in compliance with all of their obligations to contribute to any “employee benefit plan” as that term is defined in Section 3(3) of ERISA. Borrower and each of its ERISA Affiliates are in full compliance with ERISA, and there exists no event described in Section 4043(b) thereof (“Reportable Event”).
4.11. Financial Condition. All Financial Statements and information relating to Borrower which have been or may hereafter be delivered by Borrower to Lender are true and correct. Borrower has no material obligations or liabilities of any kind not disclosed in that financial information, and there has been no material adverse change in the financial condition of Borrower nor has Borrower suffered any damage, destruction or loss which has adversely affected its business or assets since the submission of the most recent financial information to Lender.
4.12. Solvency. Borrower is Solvent and upon consummation of the transactions contemplated herein will be Solvent. “Solvent” means that: (a) the total amount of Borrower’s assets is in excess of the total amount of its liabilities (including contingent liabilities), at a fair valuation; (b) Borrower does not have unreasonably small capital for the business and transactions in which Borrower is engaged or is about to engage; and (c) Borrower does not intend to or believe it will incur obligations beyond its ability to pay as they become due.
5. Covenants.
5.1. Affirmative Covenants. Borrower agrees that from the date of execution of this Agreement until the Obligations have been fully paid it will:
(a) Books and Access. Maintain proper books of account and other records and enter therein complete and accurate entries and records of all its transactions in accordance with generally accepted accounting principles and give representatives of Lender access thereto at all reasonable times, including permission to examine, copy and make abstracts from any of such books and records and such other information which might be helpful to Lender in evaluating the status of its Loans as it may from time to time reasonably request and Borrower will make available to Lender for examination copies of any reports, statements or returns which Borrower may make to or file with any governmental department, bureau or agency, federal or state.
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(b) Financial Statements. Furnish Lender (a) within 60 days after the end of each quarter Borrower’s internally prepared Financial Statements for such quarter, and (b) within 120 days after the end of each fiscal year Borrower’s internally prepared Financial Statements for such fiscal year. Financial Statements shall be made in accordance with generally accepted accounting principles applied consistent with past practice.
(c) Tax Returns. Furnish to Lender, as soon as available and in any event within thirty (30) days after filing, a complete copy of Borrower’s federal income tax returns for each fiscal year, including all schedules. If Borrower has obtained an extension of time to file such tax returns, Borrower shall provide Lender with a copy of such extension promptly after filing.
(d) Pay Indebtedness. Pay and discharge when due all indebtedness and all taxes, assessments, charges, levies and other liabilities imposed upon Borrower, its income, profits, property or business, except those which currently are being contested in good faith by appropriate proceedings and for which Borrower will have set aside adequate reserves or made other adequate provision with respect thereto but any such disputed item will be paid forthwith upon the commencement of any proceeding for the foreclosure of any lien which may have attached with respect thereto, unless Borrower will have received an opinion from its legal counsel that such proceeding is without merit.
(e) Continue Operations. Continue in operation in substantially the same manner as at present, except where such operation is rendered impossible by a fire, strike or other events beyond its control; maintain its existence as a corporation; refrain from entering into any lines of business substantially different from the business activities in which Borrower is presently engaged; keep their properties and all Collateral in good operating condition and repair; and make all necessary and proper repairs, renewals, replacements, additions and improvements thereto.
(f) Insurance. Maintain insurance with reputable insurers against loss or damage to its real and personal property by fire, windstorm and other hazards customarily insured against, in such amounts and with such coverage as required by Lender, and maintain public liability insurance in such amounts as required by Lender. Such insurance shall name Lender as loss payee (with respect to property insurance) and as an additional insured under endorsements reasonably satisfactory to Lender, and shall provide for at least thirty (30) days’ prior written notice to Lender of cancellation or material modification. Upon request, Borrower shall deliver certificates of insurance and summaries of coverage to Lender.
(g) Compliance with Applicable Laws. Comply with all laws applicable to Borrower and to the operation of its business and do all things necessary to maintain, renew and keep in full force and effect its corporate existence and all permits, governmental authorizations, patents, trademarks, copyrights, franchises or other rights necessary to enable it to continue its business. Borrower shall immediately notify Lender of any violation of any rule, regulation, statute, ordinance, order or law relating to the public health or the environment and of any complaint or notifications received by Borrower relating to any environmental or safety and health rule, regulation, statute, ordinance or law.
(h) Use of Proceeds. Use the proceeds of the Loans for the purposes specified in Section 3.
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(i) Access to Collateral. Borrower shall give Lender reasonable access to the Collateral and the other property securing the Obligations for the purpose of performing examinations thereof and to verify its condition or existence.
(j) Knowledge of Defaults. Borrower shall, within three (3) days of its knowledge thereof, give written notice to Lender of: (a) the occurrence of any event or the existence of any condition which would be an Event of Default, and (b) the occurrence of any event or the existence of any condition which would prohibit or limit the ability of Borrower to reaffirm any of the representations or warranties, or to perform any of the covenants, set forth herein.
(k) Fees and Costs. Borrower shall reimburse Lender on demand for all reasonable fees, costs and expenses (including reasonable attorneys’ fees and other professional fees) incurred by Lender in connection with (a) the preparation, negotiation, administration, amendment or enforcement of the Loan Documents and any related documents or filings, whether or not any transaction is consummated, and (b) the protection or enforcement of Lender’s rights and remedies under the Loan Documents, including in any bankruptcy, insolvency or other proceeding. If Borrower fails to pay such amounts upon demand, Lender may pay such amounts and add them to the Obligations, and such amounts shall accrue interest from the date incurred at the rate set forth in the Note. This provision shall survive repayment of the Obligations and termination of this Agreement.
(l) Failure to Pay. If Borrower fails to pay any tax, assessment, governmental charge or levy or to maintain insurance within the time permitted or required by this Agreement, or to discharge any Lien prohibited hereby, or to comply with any other Obligation, Lender may, but shall not be obligated to, pay, satisfy, discharge or bond the same for the account of Borrower. To the extent permitted by law and at the option of Lender, all monies so paid by Lender on behalf of Borrower shall be deemed Obligations and Borrower’s payments under this Agreement may be increased to provide for payment of such Obligations plus interest thereon.
(m) Further Assurances. Borrower shall execute, acknowledge and deliver, or cause to be executed, acknowledged or delivered, any and all such further assurances and other agreements or instruments, and take or cause to be taken all such other action, as shall be reasonably necessary from time to time to give full effect to the Loan Documents and the transactions contemplated thereby.
(n) Compliance. Borrower will at all times comply with all covenants and conditions in the Loan Documents to which it is a party.
(o) Ordinary Course of Business. Borrower shall at all times maintain its business and operations in a commercially reasonable manner and in the ordinary course.
5.2. Negative Covenants. Borrower covenants and agrees that from the date of execution of this Agreement until all Obligations have been fully paid, it will not without Lender’s prior written consent:
(a) Incur Indebtedness. Incur any indebtedness other than: (i) the Loans and any subsequent indebtedness to Lender; (ii) open account obligations incurred in the ordinary course of business having maturities of less than 90 days unless in the ordinary course of business extended maturities are available; (iii) existing indebtedness disclosed on Borrower’s Financial Statements; (iv) indebtedness secured by Permitted Liens.
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(b) Create Liens. Create, assume or permit to exist any mortgage, pledge, encumbrance or other security interest or lien upon any assets now owned or hereafter acquired by them or enter into any arrangement for the acquisition of property subject to any conditional sales agreement except for Permitted Liens.
(c) Guarantee. Guarantee, endorse, or become contingently liable for the obligations of any person, firm, or corporation, except in connection with the endorsement and deposit of checks in the ordinary course of business for collection.
(d) Change of Name; Jurisdiction; Organizational Form; Location. (i) Change its legal name or any trade name used to conduct its business, (ii) change its jurisdiction of incorporation or its chief executive office, (iii) change its organizational form or legal structure or (iv) a material change in the location of the Collateral, in each case except as disclosed in writing to Lender at least ten (10) days prior to such change.
(e) Additional Securities. Issue any additional securities of any description, including but not limited to stock, shares of stock, limited liability company interests, partnership interests or warrants, options or rights to purchase its securities.
(f) Capital Stock. Purchase, retire, redeem or otherwise acquire for value, directly or indirectly, any shares of its capital stock now or hereafter outstanding.
(g) Distributions. Declare or pay any dividend or distributions (except stock dividends) on its capital stock or make any payments of any kind to its shareholders (including, without limitation, debt repayments, payments for goods or services or otherwise, but excluding ordinary salary and bonus payments to shareholders employed by Borrower).
(h) Guarantee for Affiliates. Directly or indirectly issue any guarantee for the benefit of any of its Affiliates; directly or indirectly make any loans or advances to, or investments in, any of its Affiliates; enter into any transaction with any of its Affiliates, other than transactions entered into in the ordinary course of business upon fair and commercially reasonable terms determined by Lender to be no less favorable to Borrower than could be obtained in a comparable arms-length transaction with an unaffiliated person; or divert (or permit anyone to divert) any of its business opportunities to any Affiliate or any other corporate or business entity in which Borrower or its shareholders holds a direct or indirect interest.
(i) Purchase Stock. Purchase or hold beneficially any stock, other securities or evidences of indebtedness of, make any loans or advances to, or make any investment or acquire any interest whatsoever in, any other person, firm or corporation outside the ordinary course of business for Borrower.
(j) Change Ownership, Merge or Consolidate. Take any action that does or will result in a change of ownership of twenty-five percent (25%) or more of Borrower or merge or consolidate with or into any other entity or lease, sell or otherwise dispose of all, or substantially all, of its property, assets and business.
(k) Patriot Act. (a) Be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the U.S. Office of Foreign Asset Control list) that prohibits or limits Lender from making any advance or extension of credit to Borrower or from otherwise conducting business with Borrower, or (b) fail to provide documentary and other evidence of Borrower’s identity as may be requested by Lender at any time to enable Lender to verify Borrower’s identity or to comply with any applicable law or regulation, including, without limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318.
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(l) Lease. Enter into any lease of real or personal property other than the Leases, or amend, modify, terminate or assign any of the Leases, or otherwise become liable under any lease (whether by assignment, guaranty or otherwise).
6. Events of Default and Remedies.
6.1. Events of Default. Upon the occurrence of any of the following events (each, an “Event of Default”), Lender may, at its option, without any demand or notice whatsoever other than as set forth, declare the Note and all Obligations to be fully due and payable in their aggregate amount, together with accrued interest and all prepayment premiums, fees, and charges applicable thereto:
(a) Any failure to make any payment when due of principal or accrued interest on the Note or any other Obligation.
(b) Any representation or warranty of Borrower set forth in this Agreement, the Note or in any agreement, instrument, document, certificate or financial statement evidencing, guarantying, securing or otherwise related to, this Agreement, the Note or any other Obligation shall be materially inaccurate or misleading.
(c) Borrower shall fail to observe or perform any other term or condition of this Agreement, the Note or any other term or condition set forth in any agreement, instrument, document, certificate or financial statement evidencing, guarantying or otherwise related to this Agreement, the Note or any other Obligation, or Borrower shall otherwise default in the observance or performance of any covenant or agreement set forth in any of the foregoing.
(d) The dissolution of Borrower or the merger or consolidation of Borrower with a third party, or the lease, sale or other conveyance of a material part of the assets or business of Borrower to a third party outside the ordinary course of its business, or the lease, purchase or other acquisition of a material part of the assets or business of a third party by any of the foregoing.
(e) The creation of any Lien (except Permitted Liens) on, the institution of any garnishment proceedings by attachment, levy or otherwise against, the entry of a judgment against, or the seizure of, any of the property of Borrower or any endorser or any guarantor hereof including, without limitation, any property deposited with Lender.
(f) In the reasonable judgment of Lender, any material adverse change occurs in the existing or prospective financial condition of Borrower that may affect the ability of Borrower to repay the Obligations, or Lender deems itself insecure, which is not rectified to the satisfaction of Lender after written notice thereof is sent from Lender to Borrower.
(g) A commencement by Borrower or any endorser or any guarantor of the Obligations of a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect; or the entry of a decree or order for relief in respect of Borrower or any endorser or any guarantor of the Obligations in a case under any such law or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of Borrower or any endorser or any guarantor of the Obligations, or for any substantial part of the property of Borrower or any endorser or any guarantor of the Obligations, or ordering the wind-up or liquidation of the affairs of Borrower or any endorser or any guarantor of the Obligations; or the filing of a petition initiating an involuntary case under any such bankruptcy, insolvency or similar law; or the making by Borrower or any endorser or any guarantor of the Obligations of any general assignment for the benefit of creditors; or the failure of Borrower or any endorser or any guarantor of the Obligations generally to pay its debts as such debts become due; or the taking of action by Borrower or any endorser or any guarantor of the Obligations in furtherance of any of the foregoing.
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(h) Any sale, conveyance or transfer of any rights in the Collateral securing the Obligations, or any destruction, loss or damage of or to the Collateral in any material respect.
(i) Any other material adverse impairment of the value of, or Lender’s security interest in, the Collateral.
(j) Borrower shall default in the payment or performance of any indebtedness or other obligation owing to any third party, which default results in the acceleration of such indebtedness or permits the holder thereof to accelerate the same.
Notwithstanding the foregoing, upon the occurrence of an Event of Default described in subsection (g), the Note and all Obligations shall automatically become immediately due and payable without any declaration, notice or other act by Lender.
6.2. Remedies. If any Event of Default shall occur and be continuing, Lender may, in addition to the rights and remedies set forth below, exercise any and all rights and remedies available to it under this Agreement, the other Loan Documents, and applicable law, all of which rights and remedies shall be cumulative:
(a) Lender may terminate its commitment to lend hereunder (if still in existence), declare all Obligations to be due and payable forthwith, whereupon they shall forthwith become due and payable, without presentment, demand, protest, or notice of any kind, all of which are hereby expressly waived by Borrower;
(b) Lender may set off against the Obligations and all Collateral of Borrower then or thereafter in the possession of Lender.
(c) Lender may resort to the rights and remedies of a secured party under the Uniform Commercial Code including the right to enter any premises of Borrower, with or without legal process and take possession of the Collateral and remove it and any records pertaining thereto and/or remain on such premises and use it for the purpose of collecting, preparing and disposing of the Collateral.
(d) Lender may ship, reclaim, recover, store, finish, maintain and repair the Collateral, and may sell the Collateral at public or private sale, and Borrower shall be credited with the net proceeds of such sale only when they are actually received by Lender; any requirement of reasonable notice of any disposition of the Collateral shall be satisfied if such notice is sent to Borrower ten (10) days prior to such disposition.
(e) Borrower shall upon request of Lender assemble the Collateral and any records pertaining thereto and make them available at a place designated by Lender.
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(f) Lender may use, in connection with any assembly or disposition of the Collateral, any trademark, trade name, trade style, copyright, patent right, trade secret or technical process used or utilized by Borrower.
(g) Lender may take such measures as Lender may deem necessary or advisable to preserve, collect, process, develop, maintain, protect, care for or insure the Collateral or any portion thereof; and Borrower irrevocably appoints Lender as Borrower’s attorney-in-fact to do all acts and things in connection therewith and in particular, to endorse checks and other instruments payable to Borrower.
6.3. No Remedy Exclusive. No remedy set forth herein is exclusive of any other available remedy or remedies, but each is cumulative and in addition to every other remedy given under this Agreement or any of the Loan Documents or now or hereafter existing at law or in equity or by statute.
6.4. Agreement to Pay Attorney’s Fees and Other Expenses. In the event Borrower should default under any of the provisions of this Agreement and Lender should employ attorneys or incur other expenses including, but not limited to, appraisal and title fees, for the collection of the Note or the enforcement of performance or observance of any Obligation or agreement on the part of Borrower contained in this Agreement and the Loan Documents or in or represented by the Note, Borrower shall on demand therefor reimburse Lender’s Attorneys’ Fees.
6.5. Delays and Waiver. No delay or omission to exercise any right shall impair any such right or be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. Any waiver of a breach of this Agreement shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder.
7. Miscellaneous Provisions.
7.1. Definitions. All capitalized terms used herein or in an Exhibit hereto and not expressly defined herein shall have the meanings set forth for them below. All financial terms used in this Agreement, other than those defined in this Agreement, shall have the meanings given to them by generally accepted accounting principles. All other undefined terms shall have the meanings given to them in the Uniform Commercial Code.
“Affiliate” will mean, as to Borrower, any person or entity which, directly or indirectly, is in control of, is controlled by or is under common control with, Borrower.
“Agreement” will mean this Loan Agreement and any amendments, modifications, restatements or superseding documents thereof or thereto.
“Attorneys’ Fees” will mean the reasonable value of the services (and all costs and expenses related thereto) of the attorneys (and all paralegals and other staff employed by such attorneys) employed by Lender from time to time to: (i) take any action in or with respect to any suit or proceedings (bankruptcy or otherwise) relating to the Collateral or this Agreement; (ii) protect, collect, lease or sell, any of the Collateral; (iii) attempt to enforce any lien on any of the Collateral or to give any advice with respect to such enforcement; (iv) enforce any of Lender’s rights to collect any of the Obligations; (v) give Lender advice with respect to this Agreement, including but not limited to advice in connection with any default, workout or bankruptcy, (vi) prepare any amendments, restatements, amendments or waivers to this Agreement or any of the documents executed in connection with any of the Obligations.
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“Bankruptcy Code” will mean 11 U.S.C. Section 101 et seq. as amended from time to time.
“Borrower” will mean Borrower and its successors and assigns, including but not limited to any receiver, custodian, and trustee or debtor-in-possession.
“Effective Date” will mean the date on which this Agreement is executed.
“Collateral” will mean any property, real or personal, tangible or intangible, now or in the future securing the Obligations, including but not limited to the property covered by the Security Documents and as may be further defined in the Loan Documents. For the avoidance of doubt, “Collateral” shall include fixtures to the extent constituting personal property and shall be subject to the Security Documents, including any fixture filings made in connection therewith.
“Default” or “Event of Default” will mean any event or condition that with the passage of time or giving of notice, or both, would constitute (a) an event of default under any of the documents evidencing any of the Obligations or (b) a default under any of such documents that do not have a defined set of events of default.
“ERISA” will mean the Employee Retirement Income Security Act of 1974, and any regulations promulgated thereunder from time to time, as amended or as may be replaced by successor statute.
“Financial Statements” will mean Borrower’s balance sheet and income statement, statement of cash flows and reconciliation of net worth.
“Lien” will mean any security interest, mortgage, pledge, assignment, lien or other encumbrance of any kind, including interests of vendors or lessors under conditional sale contracts or capital leases.
“Loan Documents” will mean any and all documents or agreements executed by any party evidencing or securing any of the Obligations, including, but not limited to the Note, the Security Documents and each and every document ancillary thereto; and “Loan Document” means any one of the Loan Documents.
“Obligation(s)” will mean all loans, advances, indebtedness and each and every other obligation or liability of Borrower owed to Lender, however created, of every kind and description whether now existing or hereafter arising and whether direct or indirect, primary or as guarantor or surety, absolute or contingent, liquidated or unliquidated, matured or unmatured, participated in whole or in part, created by trust agreement, lease overdraft, agreement or otherwise, whether or not secured by additional Collateral, whether originated with Lender or owed to others and acquired by Lender by purchase, assignment or otherwise, and including, without limitation, all loans, advances, indebtedness and each and every obligation or liability arising under the Loan Documents or any other loan document now or hereafter issued by Lender for the benefit of or at the request of Borrower, all obligations to perform or forbear from performing acts, and agreements, instruments and documents evidencing, guarantying, securing or otherwise executed in connection with any of the foregoing, together with any amendments, modifications and restatements thereof, and all expenses and Attorneys’ Fees incurred by Lender hereunder or any other document, instrument or agreement related to any of the foregoing.
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“Organizational Documents” will mean the documents necessary for the formation of an entity, which will include the Articles or Certificate of Incorporation and Bylaws.
“Permitted Liens” will mean:
(i) liens securing the payment of taxes, either not yet due or the validity of which is being contested in good faith by appropriate proceedings, and as to which it has set aside on its books adequate reserves to the extent required by generally accepted accounting principles;
(ii) deposits under workers’ compensation, unemployment insurance and social security laws, or to secure the performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases, or to secure statutory obligations or surety or appeal bonds, or to secure indemnity, performance or other similar bonds in the ordinary course of business;
(iii) liens imposed by law, such as carriers’ warehousemen’s or mechanics’ liens, incurred by it in good faith in the ordinary course of business, and liens arising out of a judgment or award against it with respect to which it will currently be prosecuting an appeal, a stay of execution pending such appeal having been secured;
(iv) liens in favor of Lender;
(v) reservations, exceptions, encroachments and other similar title exceptions or encumbrances affecting real properties, provided such do not materially detract from the use or value thereof as used by the owner thereof;
(vi) attachment, judgment and similar liens provided that execution is effectively stayed pending a good faith contest;
(vii) liens arising in connection with a purchase money security interest; and
(viii) other liens consented to in writing by Lender, so long as no default or event of default exists with respect to the obligations secured by such liens.
“Security Documents” will mean the agreements, pledges, mortgages, guaranties, or other documents delivered by or to Borrower or any other person or entity to Lender previously, now or in the future to encumber the Collateral in favor of Lender, and all amendments thereto and restatements thereof, including, but not limited to, the Security Agreement and any applicable UCC financing statements.
“Subsidiaries” will mean (i) any entity 25% or more of whose voting shares is directly or indirectly owned or controlled by Borrower, or is held by it with power to vote; (ii) any entity the election of a majority of whose directors or managers is controlled in any manner by Borrower; or (iii) any entity with respect to the management or policies of which Borrower has the power, directly or indirectly, to exercise a controlling influence.
“UCC” or “Uniform Commercial Code” shall mean that version of the Uniform Commercial Code adopted by the State whose law has been chosen as governing law.
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7.2. Waiver of Borrower. Demand, presentment, protest and notice of dishonor, notice of protest and notice of default are hereby waived by Borrower, and any endorser or any guarantor hereof. Each of Borrower, including but not limited to all co-makers and accommodation makers of the Note, hereby waives relief under valuation and appraisement laws and all suretyship defenses including but not limited to all defenses based upon impairment of Collateral and all suretyship defenses described in Section 3-605 of the Uniform Commercial Code. Such waiver is entered to the full extent permitted by Section 3-605 (i) of the UCC.
7.3. Severability and Interpretation. If any part of this Agreement or the application thereof to any person or circumstance is held invalid, the remainder of this Agreement shall not be affected thereby. Unless the context otherwise indicates, the singular includes the plural and vice versa, the masculine includes the feminine and neuter, and the pronouns “herein” and the like refer to this entire Agreement.
7.4. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective legal representatives, successors and assigns of the parties hereto; however, Borrower may not assign any of its or their rights or delegate any of its or their obligations hereunder. Lender (and any subsequent assignee) may transfer and assign this Agreement and the Collateral to the assignee, who shall thereupon have all of the rights of Lender; and Lender (or such subsequent assignee who in turn assigns as aforesaid) shall then be relieved and discharged of any responsibility or liability with respect to this Agreement and said Collateral. Lender may also assign partial interests or participation in this Agreement and the Loan to other persons. Lender may disclose to all prospective and actual assignees and participants all financial, business and other information about Borrower which Lender may possess at any time. This Agreement, and all of the understandings, agreements, representations and warranties contained herein are solely for the benefit of the parties hereto, and there are no other parties who are intended to be benefited in any way whatsoever by this Agreement.
7.5. Notices. All notices addressed as above shall be deemed to have been properly given (i) if served in person, upon acceptance or refusal of delivery; (ii) if mailed by certified or registered mail, return receipt requested, postage prepaid, on the third (3rd) day following the day such notice is deposited in any post office station or letter box; or (iii) if sent by recognized overnight courier, on the first (1st) day following the day such notice is delivered to such carrier. No notice to or demand on Borrower in any case shall entitle Borrower to any other or further notice or demand in similar or other circumstances. Such notices shall be addressed to the addresses set forth below or as such party may from time to time designate by written notice to the other parties. Either party by notice to the other in the manner provided herein may designate additional or different addresses for subsequent notices or communications:
| To Borrower(s): | Cumberland Coal Corporation 2000 Auburn Drive, Suite 200 Beachwood, Ohio 44122 Attention: James Davidson, President | |
| To Lender: | Range Cumberland, LLC 200 Park Avenue, Suite 400 Orange Village, Ohio 44122 Attention: Michael Cavanaugh, CEO |
| with copy to: | |
UB Greensfelder LLP 1660 West 2nd Street, Suite 1100 Cleveland, OH 44113-1406 Attention: Kristin Walker Boose |
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7.6. Complete Agreement; Counterparts. This Agreement is the complete agreement of the parties hereto and supersedes all previous understandings and agreements relating to the subject matter hereof; this Agreement may be amended only by an instrument in writing which explicitly states that it amends this Agreement and is signed by the party against whom enforcement of the amendment is sought. The section headings herein are included for convenience only and shall not be deemed to be a part of this Agreement. This Agreement may be executed in counterparts, each of which will be an original and all of which will constitute a single agreement. A photocopy of this executed Agreement or any other Loan Document shall be effective and enforceable as if such photocopy is an original.
7.7. Time is of the Essence. Time is of the essence in carrying out all of the provisions in this Agreement.
7.8. Governing Law; Consent to Jurisdiction. This Agreement is delivered in, is intended to be performed in, will be construed and enforceable in accordance with and governed by the internal laws of, the State of Ohio, without regard to principles of conflicts of law. Borrower agrees that the state and federal courts in the County where Lender is located or any other court in which Lender initiates proceedings shall have exclusive jurisdiction over all matters arising out of this Agreement, and that service of process in any such proceeding shall be effective if mailed to Borrower at the address set forth herein.
7.9. Jury Waiver. BORROWER HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7.10. Assignment. Lender may pledge or otherwise hypothecate or may assign, in whole or in part, this Agreement and any of its rights and security hereunder, the Note and all of the other Loan Documents to any other Person; provided that all of the provisions of this Agreement shall continue to apply to the Loan and the Note. In the event of such assignment, it shall be deemed an act by Lender in compliance with this Agreement and to have been made in pursuance of this Agreement and not to be in modification hereof, and the Advances made by any such assignee shall be evidenced by the Note, and shall be secured by the Loan Documents and each one of them. In the case of any such transfer by Lender, whether by assignment, issuance of participations, pledge, or hypothecation, Borrower will accord full recognition thereto and agrees that all rights and remedies of Lender in connection with the interest so transferred shall be enforceable against Borrower by any such assignee with the same force and effect and to the same extent as the same would have been enforceable by Lender but for such transfer. Lender shall make reasonable efforts to provide written notice to Borrower of any assignment hereunder.
7.11. Duration of Agreement. Borrower’s agreements hereunder, including, without limitation, Borrower’s agreements relating to maintenance of insurance, shall remain in effect after the Loan is fully disbursed so long as any amounts under the Note are outstanding.
7.12. Survival. The representations, warranties, acknowledgments, and agreements set forth herein shall survive the date of this Agreement.
7.13. Further Performance. Borrower, whenever and as often as it shall be requested by Lender, shall execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered to Lender, such further instruments and documents, and do any and all things as may be requested, in order to carry out the intent and purpose of this Agreement and the other Loan Documents.
7.14. Indemnity. Except to the extent caused by any Indemnitees’ gross negligence or willful misconduct, Borrower hereby agrees to indemnify Lender and its shareholders, directors, members, officers, employees and agents (collectively, the “Indemnitees”) and hold Lender and such other Indemnitees harmless from and against any liability, loss, or damage suffered or incurred by Lender or such other Indemnitees as the result of (a) Borrower’s failure to observe, perform or discharge any of Borrower’s duties under any of the Loan Documents, (b) any misrepresentation made by or on behalf of Borrower under any of the Loan Documents, or (c) any use of Loan proceeds by Borrower in violation of the terms and conditions of this Agreement or the other Loan Documents. The obligation of Borrower under this Section shall survive the payment in full of Borrower’s obligations under this Agreement and the termination of this Agreement.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties have set their signatures to this Agreement as of the Effective Date.
| BORROWER: | ||
| CUMBERLAND COAL CORPORATION, | ||
| a Delaware corporation | ||
| By: | ||
| Name: | James Davidson | |
| Title: | President | |
| State of Ohio | ) | |
| ) | ss: | |
| County of Cuyahoga | ) | |
Before me, the undersigned, a Notary Public, personally appeared James Davidson, the President of Cumberland Coal Corporation, a Delaware corporation, and acknowledged execution of the foregoing instrument on behalf of Borrower this 31st day of May, 2026. | ||
| Notary Public | ||
| My Commission Expires: | ||
| Printed |
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IN WITNESS WHEREOF, the parties have set their signatures to this Agreement as of the Effective Date.
| LENDER: | ||
| RANGE CUMBERLAND, LLC, | ||
| an Ohio limited liability company | ||
| By: | ||
| Name: | Michael Cavanaugh | |
| Title: | Chief Executive Officer | |
| State of Ohio | ) | |
| ) | ss: | |
| County of Cuyahoga | ) |
Before me, the undersigned, a Notary Public, personally appeared Michael Cavanaugh, the CEO of Range Cumberland, LLC, an Ohio limited liability company, and acknowledged execution of the foregoing instrument on behalf of Borrower this 31st day of May, 2026.
| Notary Public | ||
| My Commission Expires: | ||
| Printed | ||
| My County of Residence is: | ||
| Cuyahoga County |
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EXHIBIT A
FORM OF DRAW NOTE
Draw Note
| $4,000,000.00 | Effective Date: May 31, 2026 |
| Maturity Date: May 31, 2031 |
1. PROMISE TO PAY. On or before May 31, 2031 (the “Maturity Date”), the undersigned, Cumberland Coal Corporation, a Delaware corporation (“Borrower”) for value received, hereby promises to pay to the order of Range Cumberland, LLC, an Ohio limited liability company (together with its successors and assigns, the “Lender”) the sum of FOUR MILLION AND 00/XX DOLLARS ($4,000,000), (the “Loan”), plus interest as provided herein, less such amounts as shall have been repaid in accordance with this Note. The outstanding balance of this Note shall appear on a supplemental record of Lender and is not necessarily the face amount of this Note, which record shall evidence the balance due pursuant to this Note at any time.
2. NOTE TERMS, RATE AND PAYMENT DATES.
This Note, and any request by Borrower from time to time for an Advance of a specified principal amount hereunder, shall be subject to the terms and conditions of the Loan Agreement dated as of the Effective Date, by and between Borrower and Lender, as the same has been or may be amended from time to time (the “Loan Agreement”). Capitalized terms used herein which are not otherwise defined in this Note shall have the meaning set forth for them in the Loan Agreement.
Lender, in its reasonable discretion, may loan hereunder to Borrower such amounts as may from time to time be requested by Borrower provided that (a) the aggregate outstanding principal amount borrowed hereunder shall not at any time exceed the aggregate principal amount of the Loan, (b) no Event of Default, shall exist or be caused thereby, and (c) amounts advanced and repaid may not be reborrowed hereunder. The entire principal balance, together with all accrued and unpaid interest and any other charges, advances and fees, if any, outstanding hereunder, shall be due and payable in full on the earlier of the Maturity Date or upon acceleration of the Note.
The principal sum outstanding shall bear interest at a fixed rate per annum equal to ten percent (10%) (the “Interest Rate”). Interest shall be calculated based on a 360-day year and charged for the actual number of days elapsed. Interest shall be payable on the 1st day of each calendar quarter beginning on June 1, 2026 (each an “Interest Payment Date”); provided that the entire principal balance, together with all accrued and unpaid interest and any other charges, advances and fees, if any, outstanding hereunder shall be due and payable in full on the earlier of the Maturity Date or upon acceleration of the Note.
Notwithstanding the foregoing, upon written notice Borrower delivered to Lender not less than ten (10) days prior to any applicable Interest Payment Date, Lender may, in its sole discretion, elect that all or any portion of accrued and unpaid interest on the outstanding principal balance of this Note shall not be payable on the applicable Interest Payment Date, and shall be capitalized and added to the outstanding principal balance of this Note (each a “PIK Election”). Any interest subject to a PIK Election shall thereafter constitute principal for all purposes of this Note and the other Loan Documents and shall thereafter bear interest at the Interest Rate. Each PIK Election may be made by Lender in writing (including by electronic mail) on or prior to the applicable Interest Payment Date. For the avoidance of doubt, absent such PIK Election, interest shall be payable in accordance with this Note. Following any capitalization of interest pursuant to a PIK Election, the outstanding principal balance of this Note shall be deemed increased by the amount of such capitalized interest, and all subsequent interest calculations hereunder shall be based on such increased principal balance.
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Notwithstanding any provision to the contrary in this Note, in no event shall the interest rate and other charges hereunder exceed the highest rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that a court determines that Lender has received interest and other charges hereunder in excess of the highest rate applicable hereto, such excess shall be deemed received on account of, and shall automatically be applied to reduce, the Loan, other than interest, in the inverse order of maturity, and the provisions hereof shall be deemed amended to provide for the highest permissible rate. If there are no amounts outstanding under the Note, Lender shall refund to Borrower such excess.
3. SECURITY. To secure repayment of this Note and all other Obligations together with all modifications, extensions and renewals thereof, Borrower hereby grants Lender a continuing security interest in all right, title and interest of Borrower in and to the property identified in the Security Agreement, whether now owned or hereafter acquired (collectively, the “Collateral”).
4. USE OF PROCEEDS. Borrower certifies that the proceeds of this loan are to be used only for business purposes and for the purpose of closing this Loan, paying Lender’s costs and expenses, and other professional fees.
5. Reserved.
6. REPRESENTATIONS AND WARRANTIES. Borrower hereby warrants and represents to Lender that the representations and warranties contained in the Loan Agreement are true and accurate as of the date hereof, including but not limited to the representation that Borrower has obtained the consent of all of its members to the confession of judgment and cognovit provisions contained herein.
7. DEFINITIONS. Unless otherwise defined herein, certain capitalized terms have the meanings set forth in the Loan Agreement between Lender and Borrower of even date or in the other Loan Documents (as defined in the Loan Agreement). All financial terms used herein but not defined herein or in the Loan Agreement or in any other Loan Document have the meanings given to them by generally accepted accounting principles. All other undefined terms have the meanings given to them in the Uniform Commercial Code as adopted in the state whose laws govern this instrument.
8. COVENANTS. Borrower agrees that from the date of execution of this Note until the Obligations have been fully paid it will comply with all of the covenants set forth in the Loan Agreement.
9. EVENTS OF DEFAULT. Upon the occurrence of an Event of Default under the Loan Agreement, Lender may, at its option, without any demand or notice whatsoever other than as set forth herein, cease making advances and declare this Note and all Obligations to be fully due and payable in their aggregate amount, together with accrued interest and all prepayment premiums, fees, and charges applicable thereto.
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10. REMEDIES. After the occurrence of an Event of Default, in addition to any other remedy permitted by law, including, but not limited to those remedies provided to secured parties under the Uniform Commercial Code, Lender may at any time, without notice, apply the Collateral to this Note or such other Obligations, whether due or not, and Lender may, at its option, proceed to enforce and protect its rights by an action at law or in equity or by any other appropriate proceedings; provided that this Note and the Obligations shall be accelerated automatically and immediately if the Event of Default is a filing under the Bankruptcy Code. In addition, Lender may use, in connection with any assembly or disposition of the Collateral, any trademark, trade name, tradestyle, copyright, patent right, trade secret or technical process used or utilized by Borrower. Lender may take such measures as Lender may deem necessary or advisable to preserve, collect, process, develop, maintain, protect, care for or insure the Collateral or any portion thereof; and Borrower irrevocably appoints Lender as Borrower’s attorney-in-fact to do all acts and things in connection therewith and in particular, to endorse checks and other instruments payable to Borrower. Borrower shall pay all costs of collection incurred by Lender, including its Attorneys’ Fees, if this Note is referred to an attorney for collection, whether or not payment is obtained before entry of judgment.
Lender’s rights and remedies hereunder are cumulative, and may be exercised together, separately, and in any order. No delay on the part of Lender in the exercise of any such right or remedy shall operate as a waiver. No single or partial exercise by Lender of any right or remedy shall preclude any other further exercise of it or the exercise of any other right or remedy. No waiver or indulgence by Lender of any Event of Default shall be effective unless in writing and signed by Lender, nor shall a waiver on one occasion be construed as a waiver of any other occurrence in the future.
11. LATE FEE; DEFAULT RATE; FEES. If any payment is not paid when due (whether by acceleration or otherwise) or within 10 days thereafter, undersigned agrees to pay to Lender a late fee equal to FIVE PERCENT (5%) of the amount overdue (the “Late Fee”). After an Event of Default, Borrower agrees this Note shall accrue interest from the occurrence of such Event of Default equal to the Interest Rate plus three percent (3%) per annum (the “Default Rate”). Lender may impose a non-sufficient funds fee for any check that is presented for payment that is returned for any reason of up to Fifty xx/100 Dollars ($50). In addition, Lender may charge loan documentation fees as may be reasonably determined by Lender.
12. PREPAYMENT. Borrower may, at its option, prepay the Loan in whole or in part at any time and from time to time without premium or penalty, subject to the provisions of this section. All prepayments shall be applied first to any accrued and unpaid fees, costs, and expenses owing to Lender, second to accrued and unpaid interest, and then to outstanding principal. No prepayment shall affect Borrower’s obligation to continue to perform all covenants and obligations under the Loan Documents, and no prepayment shall be deemed a waiver of any rights or remedies of Lender with respect to any existing or future Event of Default. All partial prepayments shall be applied in such order and manner as Lender may reasonably determine, consistent with the terms of this Agreement.
13. ENTIRE AGREEMENT. Borrower agrees that there are no conditions or understandings which are not expressed in this Note and the Loan Documents referred to herein.
14. SEVERABILITY AND INTERPRETATION. The declaration of invalidity of any provision of this Note shall not affect any part of the remainder of the provisions. Unless the context otherwise indicates, the singular includes the plural and vice versa, the masculine includes the feminine and neuter, and the pronouns “herein” and the like refer to this entire Note.
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15. ASSIGNMENT. Borrower agrees not to assign any of Borrower’s rights, remedies or obligations described in this Note without the prior written consent of Lender, which consent may be withheld in Lender’s sole discretion. Borrower agrees that Lender may assign some or all of its rights and remedies described in this Note without notice to, or prior consent from, Borrower.
16. MODIFICATION; WAIVER OF LENDER. The modification or waiver of any of Borrower’s obligations or Lender’s rights under this Note must be contained in a writing signed by Lender. Lender may perform Borrower’s obligations, or delay or fail to exercise any of its rights or remedies, without causing a waiver of those obligations or rights. A waiver on one occasion shall not constitute a waiver on another occasion. Borrower’s obligations under this Note shall not be affected if Lender amends, compromises, exchanges, fails to exercise, impairs or releases (i) any of the obligations belonging to any other person or entity (ii) any of its rights against any other person or entity, or (iii) the Collateral or any other property securing the Obligations.
17. WAIVER OF BORROWER. Demand, presentment, protest and notice of dishonor, notice of protest and notice of default are hereby waived by Borrower. Borrower hereby waives relief under valuation and appraisement laws and all suretyship defenses including but not limited to all defenses based upon impairment of Collateral and all suretyship defenses described in Section 3-605 of the Uniform Commercial Code. Such waiver is entered to the full extent permitted by Section 3-605 (i) of the UCC.
18. NOTICES. Any notices under or pursuant to this Note shall be given in accordance with the Loan Agreement.
19. TIME IS OF THE ESSENCE. Time is of the essence in carrying out all of the provisions in this Note.
20. GOVERNING LAW; CONSENT TO JURISDICTION. This Note is delivered in, is intended to be performed in, will be construed and enforceable in accordance with and governed by the internal laws of, the State of Ohio, without regard to principles of conflicts of law. Borrower agrees that the state and federal courts in the County where Lender is located or any other court in which Lender initiates proceedings shall have exclusive jurisdiction over all matters arising out of this Note, and that service of process in any such proceeding shall be effective if mailed to Borrower at the address set forth herein.
21. JURY WAIVER. BORROWER AND ANY ENDORSER OR GUARANTOR HEREOF WAIVE THE RIGHT TO A TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
22. WARRANT OF ATTORNEY. Borrower authorizes any attorney of record to appear for it/them in any court of record, after maturity of this Note, whether by its terms or upon default, acceleration or otherwise, to waive the issuance and service of process, and release all errors, and to confess judgment against it/them in favor of Lender for the principal sum due herein together with interest, charges, court costs and attorneys’ fees. Stay of execution and all exemptions are hereby waived. If this Note or any Obligation is referred to an attorney for collection, and the payment is obtained without the entry of a judgment, the obligors shall pay to the holder of such obligations its attorneys’ fees. EACH OF BORROWER, ENDORSER OR ANY GUARANTOR AGREES THAT AN ATTORNEY WHO IS COUNSEL TO LENDER OR ANY OTHER HOLDER OF SUCH OBLIGATION MAY ALSO ACT AS ATTORNEY OF RECORD FOR BORROWER WHEN TAKING THE ACTIONS DESCRIBED ABOVE IN THIS PARAGRAPH. BORROWER AGREES THAT ANY ATTORNEY TAKING SUCH ACTIONS MAY BE PAID FOR THOSE SERVICES BY LENDER OR HOLDER OF SUCH OBLIGATION. BORROWER, JOINTLY AND SEVERALLY IF MORE THAN ONE BORROWER, WAIVES ANY CONFLICT OF INTEREST THAT MAY BE CREATED BECAUSE THE ATTORNEY REPRESENTING BORROWER IS BEING PAID BY LENDER OR THE HOLDER OF SUCH OBLIGATION.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have set their signatures to this Agreement as of the Effective Date.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
| BORROWER: | ||
| CUMBERLAND COAL CORPORATION, | ||
| a Delaware corporation | ||
| By: | NOT FOR SIGNATURE; EXHIBIT PURPOSES ONLY | |
| Name: | James Davidson | |
| Title: | President | |
| State of Ohio | ) | |
| ) | ss: | |
| County of Cuyahoga | ) |
Before me, the undersigned, a Notary Public, personally appeared James Davidson, the President of Cumberland Coal Corporation, a Delaware corporation, and acknowledged execution of the foregoing instrument on behalf of Borrower this 31st day of May, 2026.
| Notary Public | ||
| My Commission Expires: | ||
| Printed |
| 21 |
EXHIBIT B
FORM OF SECURITY AGREEMENT
SECURITY AGREEMENT
This Security Agreement (this “Agreement”), is made as of May 31, 2026 (“Effective Date”), by and between Cumberland Coal Corporation, a Delaware corporation (“Grantor”), and Range Cumberland, LLC, an Ohio limited liability company (the “Secured Party”). In consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor and Secured Party agree as follows:
1. Background.
1.1 Recitals.
(a) On the date hereof, the Grantor has entered into that certain Loan Agreement (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”), with the Secured Party, pursuant to which the Secured Party, subject to the terms and conditions contained therein, is to make a Loan (as defined in the Loan Agreement) to the Grantor, which Loan is evidenced by that certain Draw Note, dated of even date herewith, by Grantor in favor of Secured Party (the “Note”).
(b) Under the terms of this Agreement, the Grantor desires to grant to the Secured Party a security interest in the Collateral, as defined herein, to secure any and all Obligations (as defined in Section 4).
2. Definitions. All capitalized terms used herein without definitions shall have the respective meanings set forth in the Uniform Commercial Code as in effect from time to time in the State of Ohio (the “UCC”). However, if a term is defined in Article 9 of the UCC differently than in another Article of the UCC, the term has the meaning specified in Article 9.
3. Grant of Security Interest.
3.1. For value received, the Grantor hereby grants to the Secured Party, to secure the payment and performance in full of the Obligations, a continuing security interest in all of the Grantor’s right, title and interest in and to all personal property and Fixtures of every kind and nature, whether now owned or hereafter acquired, wherever located, including, without limitation (all of the foregoing, collectively, the “Collateral”):
(a) all Goods (including Inventory, Equipment, Fixtures, and any Accessions thereto);
(b) all Accounts (including Health-Care-Insurance Receivables and Controllable Accounts);
(c) all Chattel Paper (whether Tangible Chattel Paper or Electronic Chattel Paper);
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(d) all Instruments;
(e) all Documents;
(f) all General Intangibles (including Payment Intangibles, Controllable Payment Intangibles and Controllable Electronic Records);
(g) all Investment Property;
(h) all Deposit Accounts;
(i) all Money and Electronic Money;
(j) all Letter-of-Credit Rights;
(k) all Commercial Tort Claims provided in writing to Secured Party, supplemented as applicable from time to time;
(l) all Supporting Obligations; and
(m) all Proceeds and products of the foregoing, together with all books and records relating thereto.
For the avoidance of doubt, the term “Collateral” includes all of Grantor’s right, title and interest, whether now owned or hereafter acquired, in and to (a) the coal preparation plant commonly known as the “Pardee Preparation Plant” (the “Plant”), as described in that certain Coal Mining Lease dated July 1, 2025 by and between ACIN LLC, as lessor, and Grantor, as lessee (the “ACIN Lease”), including, without limitation, all structures, foundations, machinery, equipment, conveyors, weigh systems, electrical infrastructure, components, appurtenances and related improvements comprising such Plant, and (b) all equipment, machinery, processing facilities, preparation plants (if any), structures, improvements, fixtures (to the extent constituting personal property), and other personal property installed, constructed or located on the Leased Premises (as defined in that certain Coal Lease dated August 22, 2025 by and between Penn Virginia Operating Co., LLC, as lessor, and Grantor, as lessee (the “Penn Virginia Lease”)), including, without limitation, all coal handling, processing, conveying, loading, weighing and related infrastructure, in each case together with all replacements, additions, accessions and Proceeds thereof.
3.2. If the Grantor shall at any time hold or acquire a commercial tort claim, the Grantor shall immediately notify the Secured Party in writing of the details thereof and grant to the Secured Party in such writing, in form and substance satisfactory to the Secured Party, a security interest therein and in the proceeds thereof.
4. Obligations. This Agreement secures the prompt and full performance and payment of all of the indebtedness, obligations, liabilities, and undertakings of the Grantor to the Secured Party, of any kind or description, individually or collectively, whether direct or indirect, joint or several, absolute or contingent, due or to become due, voluntary or involuntary, now existing or hereafter arising (including, all interest, fees (including attorneys’ fees), costs, and expenses that the Grantor is hereby or otherwise required to pay and perform pursuant to the Note, Loan Agreement, this Agreement, or any other Loan Document (as defined in the Loan Agreement), by law or otherwise accruing before and after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Grantor, whether or not a claim for post-petition interest, fees or expenses is allowed in such proceeding), irrespective of whether for the payment of money, under or in respect of the Note, Loan Agreement, this Agreement, or any other Loan Document, including instruments or agreements executed and delivered pursuant thereto or in connection therewith (the “Obligations”).
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5. Changes in Location of Collateral. The Grantor hereby agrees to notify the Secured Party, in writing or via electronic communication, within ten (10) days, upon any change in the location of any Collateral and provide the Secured Party with the new location of such Collateral.
6. Changes in Grantor. The Grantor hereby agrees to notify the Secured Party, in writing or via electronic communication, at least ten (10) days before any of the following actions: (a) change in the location of the Grantor’s place of business; (b) change in the Grantor’s name; (c) change in the Grantor’s type of organization; (d) change in the Grantor’s jurisdiction of organization; and (e) change in the Grantor’s corporate structure.
7. Transfer of Collateral. The Grantor shall not sell, offer to sell, assign, lease, license, or otherwise transfer, or grant, create, permit, or suffer to exist any option, security interest, lien, or other encumbrance in, any part of the Collateral (except for sales or leases of inventory or licenses of general intangibles in the ordinary course of business), without prior written approval from the Secured Party.
8. Grantor Representations and Warranties. The Grantor hereby represents, warrants, and covenants that: (a) the Grantor owns or has good and marketable title to the Collateral and no other person or organization can make any claim of ownership of any kind on the Collateral; (b) the Grantor has the full power, authority and legal right to grant the security interest in the Collateral; (c) the Collateral is free from any and all claims, encumbrances, rights of setoff or any other security interest or lien of any kind except for the security interest in favor of the Secured Party created by this Agreement and (d) this Agreement creates in favor of the Secured Party a valid security interest in the Collateral, securing payment of the Obligations, and such security interest is first priority. The Grantor will defend the Collateral against all claims and demands made by all persons claiming either the Collateral or any interest in it.
9. Grantor Covenants and Insurance. The Grantor hereby grants to the Secured Party the right to enter the Grantor’s property to inspect the Collateral at any reasonable time. The Grantor agrees to: (a) maintain the Collateral in good order, repair, and condition at all times; (b) timely pay all taxes, judgments, levies, fees, or charges of any kind levied or assessed on the Collateral; (c) timely pay all rent or mortgage payments of any kind as applicable to any real property upon which any part of the Collateral is located; and (d) have and maintain at all times a hazard insurance policy on the Collateral underwritten by an insurance company, and in an amount, approved by the Secured Party, but in no way shall the amount of insurance be less than the replacement cost of the Collateral. The insurance procured in this Section shall contain a standard Lender’s Loss Payable Clause in favor of the Secured Party, and provide that the Secured Party will receive at least ten (10) days’ notice of any cancellation of the policy. The Grantor hereby assigns to the Secured Party all rights to any proceeds of any insurance procured under this Section, and authorizes the Secured Party to receive such payments and execute any and all documents required to receive such payments. If the Grantor fails to provide for the insurance as set out in this Section, the Secured Party, in addition to any remedies as set out in Section 11 of this Agreement, may procure the requisite insurance on the Collateral on its own behalf and charge the Grantor with any and all costs of such procurement.
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10. Perfection of Security Interest. The Grantor agrees that at any time and from time to time, at the expense of the Grantor, the Grantor will promptly execute and deliver all further instruments and documents, obtain such agreements from third parties, and take all further action, that may be necessary or desirable, or that the Secured Party may reasonably request, in order to create and/or maintain the validity, perfection or priority of and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce its rights and remedies hereunder or under any other agreement with respect to any Collateral. The Grantor hereby authorizes the Secured Party to file or record any document necessary to perfect, continue, amend, or terminate its security interest in the Collateral, including, but not limited to, any financing statements, including amendments, authorized to be filed under the UCC, including the filing of a financing statement describing the Collateral as all assets now owned or hereafter acquired by the Grantor, or words of similar effect. The Grantor also hereby ratifies any previously filed documents or recordings regarding the Collateral, including but not limited to, any and all previously filed financing statements.
11. Remedies. If an Event of Default (as defined in the Loan Agreement) shall have occurred and be continuing, the Secured Party may do any or all of the following: (a) declare all Obligations immediately due and payable; (b) enter upon the Grantor’s premises where any Collateral is located and take possession of the Collateral without demand or legal process, to the extent permitted by applicable law; (c) require the Grantor to assemble and make available the Collateral at a place reasonably designated by the Secured Party; (d) sell, lease, license or otherwise dispose of the Collateral, at public or private sale, in accordance with applicable law; (e) collect, receive, appropriate and realize upon any Collateral, and settle, compromise or adjust any claims constituting or relating to the Collateral; (f) enforce payment of the Obligations and exercise any and all rights and remedies available to the Secured Party under this Agreement, the Loan Agreement, any other Loan Document, or applicable law, including, without limitation, those rights and remedies available under Article 9 of the UCC; and (g) recover from the Grantor all reasonable costs and expenses incurred by the Secured Party in exercising its rights and remedies hereunder, including reasonable attorneys’ fees and expenses, all of which shall constitute Obligations secured hereby.
12. Secured Party Rights. Any and all rights of the Secured Party provided by this Agreement are in addition to any and all rights available to the Secured Party by law, and shall be cumulative and may be exercised simultaneously. No delay, omission, or failure on the part of the Secured Party to exercise or enforce any of its rights or remedies, either granted under this Agreement or by law, shall constitute an estoppel or waiver of such right or remedy or any other right or remedy. Any and all rights of the Secured Party provided by this Agreement shall inure to the benefit of its successors and assigns.
13. Severability of Modification. If any of the provisions in this Agreement is determined to be invalid, illegal, or unenforceable, such determination shall not affect the validity, legality, or enforceability of the other provisions in this Agreement. No waiver, modification or amendment of, or any other change to, this Agreement will be effective unless done so in a separate writing signed by the Secured Party.
14. Notices. Any notice or other communication required or permitted to be given under this Agreement shall be given and shall become effective in accordance with the Loan Agreement.
15. Entire Agreement. This Agreement (including all documents referred to herein) represents the entire agreement between the Grantor and the Secured Party and supersedes all previous understandings and agreements between the Grantor and the Secured Party, whether oral or written, regarding the subject matter hereof.
16. Jurisdiction. This Agreement will be interpreted and construed according to the laws of the State of Ohio, including, but not limited to, the UCC, without regard to choice-of-law rules in any jurisdiction.
17. Conflicts with Loan Agreement. In the event of any conflict between the terms of this Agreement and the Loan Agreement, the terms of the Loan Agreement shall control, except with respect to the grant, perfection, and enforcement of the security interest in the Collateral, as to which this Agreement shall control.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties have set their signatures to this Agreement as of the Effective Date.
| GRANTOR: | ||
| CUMBERLAND COAL CORPORATION, | ||
| a Delaware corporation | ||
| By: | NOT FOR SIGNATURE; EXHIBIT PURPOSES ONLY | |
| Name: | James Davidson | |
| Title: | President | |
| State of Ohio | ) | |
| ) | ss: | |
| County of Cuyahoga | ) |
Before me, the undersigned, a Notary Public, personally appeared James Davidson, the President of Cumberland Coal Corporation, a Delaware corporation, and acknowledged execution of the foregoing instrument on behalf of Borrower this 31st day of May, 2026.
| Notary Public | ||
| My Commission Expires: | ||
| Printed |
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IN WITNESS WHEREOF, the parties have set their signatures to this Agreement as of the Effective Date.
| SECURED PARTY: | ||
| Range Cumberland, LLC, | ||
| an Ohio limited liability company | ||
| By: | NOT FOR SIGNATURE; EXHIBIT PURPOSES ONLY | |
| Name: | Michael Cavanaugh | |
| Title: | Chief Executive Officer | |
| State of Ohio | ) | |
| ) | ss: | |
| County of Cuyahoga | ) |
Before me, the undersigned, a Notary Public, personally appeared Michael Cavanaugh, the CEO of Range Cumberland, LLC, an Ohio limited liability company, and acknowledged execution of the foregoing instrument on behalf of Borrower this 31st day of May, 2026.
| Notary Public | ||
| My Commission Expires: | ||
| Printed | ||
| My County of Residence is: | ||
| Cuyahoga County |
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EXHIBIT C
FORM OF DRAW REQUEST
| Date: | [Date] |
| To: | Range Cumberland, LLC |
| 200 Park Avenue, Suite 400 | |
| Orange Village, Ohio 44122 | |
| Attn: Michael Cavanaugh, CEO | |
| Email : [email protected] |
Re: Draw Request under Loan Agreement dated as of [May 31], 2026 (the “Loan Agreement”), between Cumberland Coal Corporation (“Borrower”) and Range Cumberland, LLC (“Lender”)
Pursuant to the Loan Agreement, the undersigned hereby requests an advance (an “Advance”) as follows:
1. Requested Advance.
| Amount: | $[__] | |
| Funding Date: | [Date] |
2. Funding Instructions.
| Bank Name: | [__] | |
| Routing Number: | [__] | |
| Account Name: | [__] | |
| Account Number: | [__] |
3. Certifications. As a condition to the Requested Advance, the undersigned hereby certifies on behalf of Borrower that:
(a) The representations and warranties contained in the Loan Agreement and the other Loan Documents are true and correct as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date.
(b) No Event of Default has occurred and is continuing, and no Event of Default would result from the Advance.
(c) After giving effect to the Advance, the aggregate outstanding principal balance of the Loan will not exceed $4,000,000.00.
4. Acknowledgement. Borrower acknowledges that the acceptance of the proceeds of the Requested Advance shall constitute a reaffirmation of the representations and warranties set forth in the Loan Agreement in accordance with Section 3.3 thereof.
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IN WITNESS WHEREOF, the undersigned has set their signatures to this Draw Request as of the date first written above.
| BORROWER: | ||
| Cumberland Coal Corporation | ||
| By: | ||
| Name: | ||
| Title: | ||
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Exhibit 10.3
SUBORDINATION AGREEMENT
This Subordination Agreement (this “Agreement”) is signed as of May 31, 2026 and shall be effective as of May 31, 2026 (the “Effective Date”), by and among Tacora Capital, LP, a Delaware limited partnership (“Senior Creditor”); Range Cumberland, LLC, an Ohio limited liability company (“Subordinated Creditor”); and Cumberland Coal Corporation, a Delaware corporation (“Debtor”).
RECITALS
WHEREAS, Senior Creditor is the holder of that certain Contingent Performance Note, dated as of May 31, 2026 (as amended, restated, supplemented, or otherwise modified from time to time, the “Senior Note”), issued by Cumberland Coal Holdings, LLC, Cumberland Coal Investments, LLC, CCI Series 1, LLC, CCI Series 2, LLC, CCI Series 3, LLC, CCI Series 4, LLC, CCI Series 5, LLC, CCI Series 6, LLC, CCI Series 7, LLC, CCI Series 8, LLC, CCI Series 9, LLC, CCI Series 10, LLC, CCI Series 11, LLC, and Cumberland Coal Corporation in the original principal amount of Twenty-Five Million Dollars ($25,000,000) (the “Senior Indebtedness”);
WHEREAS, Subordinated Creditor is the lender under that certain Loan Agreement, dated as of May 31, 2026 (as amended, restated, supplemented, or otherwise modified from time to time, the “Loan Agreement”), by and between Debtor and Subordinated Creditor, pursuant to which Subordinated Creditor has agreed to make advances to Debtor in an aggregate principal amount not to exceed Four Million and 00/100 Dollars ($4,000,000.00), which loan is evidenced by that certain Draw Note, dated as of May 31, 2026 (as amended, restated, supplemented, or otherwise modified from time to time, the “Subordinated Note”), executed by Debtor in favor of Subordinated Creditor (the indebtedness evidenced by the Subordinated Note, together with all interest, fees, costs, expenses, and other amounts payable thereunder or under the Loan Agreement, collectively, the “Subordinated Indebtedness”);
WHEREAS, Subordinated Creditor holds a security interest in substantially all of the personal property and fixtures of Debtor pursuant to that certain Security Agreement, dated as of May 31, 2026 (as amended, restated, supplemented, or otherwise modified from time to time, the “Security Agreement”), by and between Debtor, as grantor, and Subordinated Creditor, as secured party (the Loan Agreement, the Subordinated Note, the Security Agreement, and all other documents, instruments, and agreements executed in connection therewith, collectively, the “Subordinated Loan Documents”);
WHEREAS, the Senior Note provides that the Contingent Performance Note shall be kept in a position as if it were in first priority lien position and that no security interest (other than any security interest of Debtor’s bond insurers – if those are determined to be superior to the Senior Note) shall be superior to the Senior Note unless Senior Creditor has agreed in writing to such priority;
WHEREAS, Senior Creditor has not taken a secured position with respect to the Senior Indebtedness but requires that its rights to payment under the Senior Note be superior to and have priority over the rights of Subordinated Creditor under the Subordinated Loan Documents; and
WHEREAS, Subordinated Creditor has agreed to subordinate the Subordinated Indebtedness and all of its rights under the Subordinated Loan Documents to the Senior Indebtedness and the rights of Senior Creditor under the Senior Note, upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“Bankruptcy Proceeding” means any voluntary or involuntary case, proceeding, or action commenced under Title 11 of the United States Code (the “Bankruptcy Code”), or any other federal, state, or foreign bankruptcy, insolvency, reorganization, receivership, assignment for the benefit of creditors, composition, or similar law, with respect to the Debtor or any of its assets.
“Distribution” means any payment, distribution, or transfer of cash, property, securities, or other consideration, whether direct or indirect, on account of or in respect of any indebtedness of Debtor, including any payment of principal, interest, fees, costs, expenses, or other amounts, whether by set-off, redemption, purchase, or otherwise.
“Enforcement Action” means the exercise of any right or remedy with respect to any Subordinated Indebtedness or the Subordinated Loan Documents, including the acceleration of any Subordinated Indebtedness, the commencement or prosecution of any action, suit, or proceeding to collect any Subordinated Indebtedness, the exercise of any right of set-off, the foreclosure or realization upon any collateral, the filing of any claim or proof of claim in any Bankruptcy Proceeding, or the taking of any action to enforce any judgment or other recovery.
“Net Sale Value” shall have the meaning ascribed to such term in the Senior Note.
“Sale Transaction” shall have the meaning ascribed to such term in the Senior Note.
“Senior Indebtedness” means all indebtedness, obligations, and liabilities of the Debtor and all other obligors under the Senior Note, whether now existing or hereafter arising, including all principal, interest (including late payment interest at the rate of eighteen percent (18%) per annum as provided in the Senior Note), fees, costs, expenses, and other amounts payable under or in connection with the Senior Note, up to the full Contingent Performance Note Value of Twenty-Five Million Dollars ($25,000,000).
ARTICLE 2. SUBORDINATION
2.1. Subordination of Subordinated Indebtedness. Subordinated Creditor hereby irrevocably and unconditionally subordinates, to the extent and in the manner set forth in this Agreement, the payment of all Subordinated Indebtedness to the prior payment in full of all Senior Indebtedness. The rights of Subordinated Creditor to receive any Distribution on account of the Subordinated Indebtedness shall at all times be subject and subordinate to the prior payment in full of the Senior Indebtedness.
2.2. Subordination of Liens and Security Interests. Notwithstanding the order of granting, attaching, or perfecting any lien, security interest, or encumbrance, and notwithstanding any provision of the Uniform Commercial Code or any other applicable law, any lien, security interest, or encumbrance that Subordinated Creditor may now or hereafter hold in any assets of Debtor (including, without limitation, all Collateral described in the Security Agreement) shall be and hereby is subordinated and made junior and inferior in all respects to the rights of Senior Creditor to receive payment of the Senior Indebtedness in full, regardless of whether such rights are unsecured.
2.3. Payment Restrictions. Until the Senior Indebtedness has been paid in full:
(a) No Distribution shall be made by Debtor, and Subordinated Creditor shall not accept, demand, sue for, collect, or receive any Distribution, on account of the Subordinated Indebtedness from any source, including any proceeds of any Sale Transaction or any proceeds of the Collateral.
(b) In the event that Subordinated Creditor receives any Distribution in violation of this Agreement, Subordinated Creditor shall hold such Distribution in trust for the benefit of Senior Creditor and shall immediately deliver such Distribution to Senior Creditor in the form received (with any necessary endorsements) for application to the Senior Indebtedness.
(c) Notwithstanding the foregoing, Subordinated Creditor may receive regularly scheduled payments of interest under the Subordinated Note so long as (i) no Event of Default (as defined in the Senior Note) has occurred and is continuing, and (ii) such payments do not derive from proceeds of any Sale Transaction or any other amounts to which Senior Creditor is entitled under the Senior Note.
2.4. Priority of Senior Creditor’s Payment Rights. The parties acknowledge that although Senior Creditor has not taken a security interest or lien in any property of Debtor, Senior Creditor’s rights to payment under the Senior Note shall be treated in all respects as if Senior Creditor held a first priority security interest in all assets of Debtor and all obligors under the Senior Note. Subordinated Creditor agrees that its security interest and all rights under the Subordinated Loan Documents are at all times junior and subordinate to Senior Creditor’s rights to payment of the Senior Indebtedness.
ARTICLE 3. BANKRUPTCY PROVISIONS
3.1. Subordination in Bankruptcy. The subordination provisions of this Agreement shall continue in full force and effect in any Bankruptcy Proceeding. In any Bankruptcy Proceeding involving Debtor:
(a) All Senior Indebtedness shall first be paid in full before any Distribution is made on account of the Subordinated Indebtedness.
(b) Any Distribution that would otherwise be payable or deliverable to Subordinated Creditor on account of the Subordinated Indebtedness shall be paid or delivered directly to Senior Creditor until the Senior Indebtedness has been paid in full.
(c) Subordinated Creditor shall file a proof of claim (but no other pleadings) with respect to the Subordinated Indebtedness in any Bankruptcy Proceeding, and Senior Creditor is hereby irrevocably authorized and empowered (in the name of Subordinated Creditor or otherwise) to: demand; sue for; collect; receive; file a proof of claim; file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding, or other pleadings made by any person objecting to, or otherwise seeking, the disallowance of the Subordinated Indebtedness or that, in any way, seeks to interfere with or adversely affect the Subordinated Indebtedness; object to or vote on any plan of reorganization; and/or make any filings or motions that, in each case, are deemed to be necessary, in the Senior Creditors sole and absolute discretion, to support, protect and/or advance the rights or interests of the Subordinated Creditor and/or the Subordinated Indebtedness.
3.2. Obligation to Place Senior Creditor in Priority Position. Subordinated Creditor hereby irrevocably covenants and agrees that in any Bankruptcy Proceeding involving Debtor:
(a) Subordinated Creditor shall take such actions as are reasonably requested by Senior Creditor, and shall cooperate fully with Senior Creditor, to ensure that Senior Creditor is placed in a priority position for payment of the Senior Indebtedness ahead of the Subordinated Indebtedness, including without limitation: (i) supporting any motion, plan of reorganization, or other relief that provides for the payment of the Senior Indebtedness in full prior to any Distribution on account of the Subordinated Indebtedness; (ii) voting its claims in favor of any plan of reorganization that provides for payment of the Senior Indebtedness in full prior to payment of the Subordinated Indebtedness; (iii) consenting to or supporting the granting of adequate protection or replacement liens to Senior Creditor; and (iv) not opposing or objecting to any motion, plan, or relief to the extent consistent with and necessary to enforce the subordination provisions of this Agreement; in each case of the foregoing.
(b) Subordinated Creditor shall not, without the prior written consent of Senior Creditor: (i) seek adequate protection of its security interest in any Collateral; (ii) seek relief from the automatic stay in respect of the Collateral; (iii) object to any use of cash collateral proposed or consented to by Senior Creditor; (iv) object to any debtor-in-possession financing proposed or consented to by Senior Creditor; or (v) take any other action in a Bankruptcy Proceeding that would be inconsistent with or adverse to the priority and rights of Senior Creditor under this Agreement.
(c) Subordinated Creditor agrees that, in the event that Debtor files or has filed against it a Bankruptcy Proceeding, Subordinated Creditor shall, to the fullest extent permitted by applicable law, take such actions as are reasonably requested by Senior Creditor to effectuate the intent of this Agreement, including but not limited to, that Senior Creditor receive payment in full of the Senior Indebtedness before any Distribution is made to Subordinated Creditor on account of the Subordinated Indebtedness.
3.3. Post-Petition Interest. In any Bankruptcy Proceeding, to the extent that any claim of Subordinated Creditor for post-petition interest or fees is allowed or paid while the Senior Indebtedness remains outstanding, Subordinated Creditor shall hold such amounts in trust for and immediately turn over such amounts to Senior Creditor for application to the Senior Indebtedness.
3.4. No Challenge to Senior Creditor Claims. Subordinated Creditor shall not challenge, contest, or object to the allowance or priority of any claim of Senior Creditor in any Bankruptcy Proceeding, including any claim based on the Senior Note except in the case of fraud, bad faith, or manifest error.
3.5. Adequate Protection and DIP Financing. If Debtor seeks authority to use cash collateral or to obtain debtor-in-possession financing in any Bankruptcy Proceeding, Subordinated Creditor shall, to the extent requested by Senior Creditor, consent to such use of cash collateral or debtor-in-possession financing and to any liens or superpriority claims granted in connection therewith ranking senior to the liens and claims of Subordinated Creditor, provided such use or financing is designed to maximize the value of Debtor’s assets for the benefit of all creditors.
ARTICLE 4. ENFORCEMENT STANDSTILL
4.1. Standstill. Until the Senior Indebtedness has been paid in full, Subordinated Creditor shall not take any Enforcement Action without the prior written consent of Senior Creditor; provided, however, that Subordinated Creditor may: (a) file a proof of claim in a Bankruptcy Proceeding (subject to Article 3 hereof); and (b) take action to preserve and protect the validity and perfection of its liens, including filing UCC financing statement continuation statements (but not to enforce or foreclose thereon).
4.2. Limitation on Exercise of Remedies. Until the Senior Indebtedness has been paid in full, Subordinated Creditor shall not accelerate any Subordinated Indebtedness, exercise any right of set-off, foreclose upon or realize against any Collateral, apply any proceeds of Collateral or any other property of Debtor to any Subordinated Indebtedness, or exercise any other remedies under the Subordinated Loan Documents, without the prior written consent of Senior Creditor.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
5.1. Representations of Subordinated Creditor. Subordinated Creditor hereby represents and warrants to Senior Creditor as follows:
(a) Subordinated Creditor is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Ohio, and has full power and authority to execute, deliver, and perform its obligations under this Agreement.
(b) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of Subordinated Creditor and do not conflict with or violate any agreement, instrument, or obligation binding upon Subordinated Creditor.
(c) This Agreement constitutes the legal, valid, and binding obligation of Subordinated Creditor, enforceable against Subordinated Creditor in accordance with its terms, subject to applicable bankruptcy, insolvency, and similar laws affecting creditors’ rights generally and to general principles of equity.
(d) As of the date hereof, the Subordinated Loan Documents constitute the only agreements pursuant to which Debtor is indebted to Subordinated Creditor.
5.2. Representations of Debtor. Debtor hereby represents and warrants to Senior Creditor as follows:
(a) Debtor is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has full power and authority to execute, deliver, and perform its obligations under this Agreement.
(b) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of Debtor and do not conflict with or violate any agreement, instrument, or obligation binding upon Debtor.
(c) This Agreement constitutes the legal, valid, and binding obligation of Debtor, enforceable against Debtor in accordance with its terms, subject to applicable bankruptcy, insolvency, and similar laws affecting creditors’ rights generally and to general principles of equity.
ARTICLE 6. COVENANTS
6.1. No Amendments to Subordinated Loan Documents. Without the prior written consent of Senior Creditor, Subordinated Creditor shall not amend, modify, supplement, or waive any term or provision of any Subordinated Loan Document if such amendment, modification, supplement, or waiver would: (a) accelerate the maturity or required payment dates thereof; (b) change or add any default or event of default thereunder; or (c) otherwise adversely affect the rights of Senior Creditor hereunder.
6.2. No Additional Indebtedness or Liens. Without the prior written consent of Senior Creditor, neither Subordinated Creditor nor Debtor shall create, incur, assume, or permit to exist any additional indebtedness or any lien, security interest, or encumbrance on any property of Debtor that is senior to or pari passu with Senior Creditor’s rights to payment under the Senior Note, other than the security interests granted under the Security Agreement as expressly subordinated hereby.
6.3. Notices. Subordinated Creditor shall promptly provide written notice to Senior Creditor upon obtaining actual notice of: (a) any default or event of default under any Subordinated Loan Document; (b) the commencement of any Enforcement Action; and (c) any Bankruptcy Proceeding involving Debtor.
6.4. Further Assurances. Each party shall execute and deliver such additional documents, instruments, and agreements, and take such further actions, as may be reasonably necessary or desirable to carry out the purposes and intent of this Agreement.
ARTICLE 7. WAIVERS AND ACKNOWLEDGMENTS
7.1. Waivers by Subordinated Creditor. Subject to the terms of this Agreement, Subordinated Creditor hereby waives any right to require Senior Creditor to: (a) proceed against Debtor or any other obligor under the Senior Note; (b) proceed against or exhaust any security held from Debtor or any other obligor; (c) pursue any other remedy in Senior Creditor’s power with respect to the Senior Indebtedness; or (d) marshal assets of Debtor to the extent permitted by applicable law.
7.2. Acknowledgment of Unsecured Status. The parties acknowledge that Senior Creditor’s claim under the Senior Note is unsecured. Nothing in this Agreement shall be construed to grant Senior Creditor a security interest or lien in any property of Debtor. The subordination and priority provisions herein are contractual in nature and are intended to govern the relative rights and priorities of the parties with respect to Distributions from Debtor and its assets.
7.3. Independent Credit Decision. Each party acknowledges that it has independently and without reliance upon any other party hereto made its own credit analysis and decision to enter into this Agreement and the transactions contemplated hereby.
7.4. Subrogation. Subordinated Creditor shall not exercise any right of subrogation, contribution, reimbursement, or indemnity against Debtor, and shall not exercise any right of recourse to any Collateral or any other security for the Subordinated Indebtedness, until the Senior Indebtedness has been paid in full.
ARTICLE 8. TERM AND TERMINATION
8.1. Term. This Agreement shall remain in full force and effect until the earlier of: (a) payment in full of the Senior Indebtedness; or (b) a written agreement signed by all parties hereto terminating this Agreement. Upon payment in full of the Senior Indebtedness, the subordination provisions herein shall automatically terminate and be of no further force or effect, and the Subordinated Indebtedness shall thereafter be payable and enforceable in accordance with the terms of the Subordinated Loan Documents without restriction.
8.2. Reinstatement. If at any time any payment or Distribution made on account of the Senior Indebtedness is rescinded or must otherwise be returned by Senior Creditor upon the insolvency, bankruptcy, or reorganization of Debtor or otherwise, the subordination provisions of this Agreement shall be reinstated to the same extent as though such payment or Distribution had not been made.
ARTICLE 9. MISCELLANEOUS
9.1. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to conflicts of law principles.
9.2. Jurisdiction. The parties hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Delaware and the Delaware Court of Chancery for the purpose of any suit, action, or other proceeding arising out of or based upon this Agreement.
9.3. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations, and discussions, whether oral or written, relating to the subject matter hereof.
9.4. Amendments. No amendment, modification, or waiver of any provision of this Agreement shall be effective unless in writing and signed by each of the parties hereto.
9.5. Notices. All notices, demands, or other communications under this Agreement shall be in writing and shall be deemed given when delivered personally, sent by nationally recognized overnight courier, or sent by email with confirmation of receipt, addressed as follows:
If to Senior Creditor: Tacora Capital, LP,
Tacora Capital, LP
Attn: Keri Findley
2505 Pecos Street
Austin, TX 78703
Email: [email protected]
And
Tacora Capital, LP
Attn: Claire Ellison
2505 Pecos Street
Austin, TX 78703
Email: [email protected]
With a copy (not constituting Notice) to:
Bailey & Glasser LLP
Attn: Luke Thomas
94 Long Street, Suite 200
Westover, WV 26501
Email: [email protected]
If to Subordinated Creditor: Range Cumberland, LLC:
Range Cumberland, LLC
200 Park Avenue, Suite 400
Orange Village, Ohio 44122
Attn: Michael Cavanaugh, CEO
Email: [email protected]
With a copy (not constituting Notice) to:
UB Greensfelder LLP
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113
Attn: Howard Groedel, Esq.
Email: [email protected]
If to Debtor: Cumberland Coal Corporation
Cumberland Coal Corporation
200 Park Avenue, Suite 400
Orange Village, Ohio 44122
Attn: James Davidson, President
Email: [email protected]
With a copy (not constituting Notice) to:
UB Greensfelder LLP
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113
Attn: Howard Groedel, Esq.
Email: [email protected]
or to such other address as a party may designate in writing.
9.6. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Subordinated Creditor shall not assign any of its rights or obligations under this Agreement without the prior written consent of Senior Creditor.
9.7. Severability. If any provision of this Agreement is determined to be illegal, invalid, or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect.
9.8. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. Signatures transmitted in PDF format or similar electronic copy shall be deemed original signatures.
9.9. Headings. The headings in this Agreement are for convenience of reference only and shall not affect the interpretation or construction of this Agreement.
9.10. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[signature page follows]
IN WITNESS WHEREOF, the parties have executed this Subordination Agreement as of the Effective Date.
| SENIOR CREDITOR: | ||
| TACORA CAPITAL, LP | ||
| By: | ||
| Name: | Keri Findley | |
| Title: | Authorized Signatory | |
| SUBORDINATED CREDITOR: | ||
| RANGE CUMBERLAND, LLC | ||
| By: | ||
| Name: | Michael Cavanaugh | |
| Title: | CEO | |
| DEBTOR: | ||
| CUMBERLAND COAL CORPORATION | ||
| By: | ||
| Name: | James Davidson | |
| Title: | President | |
Exhibit 10.4
LETTER AGREEMENT
THIS LETTER AGREEMENT (this “Agreement”) is made and entered into as of May 31, 2026 (“Effective Date”), by and between TACORA CAPITAL, LP, a Delaware limited partnership (“Tacora”), and RANGE BLUEGRASS LAND, LLC, an Ohio limited liability company (“Range Bluegrass”). Tacora and Range Bluegrass may be individually referred to herein as a “Party” or collectively as the “Parties”.
RECITALS
WHEREAS, Tacora and Cumberland Coal Holdings, LLC, an Ohio limited liability company (“CCH”), have entered into a Membership Interest Transfer Agreement (“MITA”), dated as of the date hereof, whereby Tacora sold 100% of its membership interests in Cumberland Coal Investments, LLC, a Delaware limited liability company (“CCI”) and in CCI Series 1, LLC; CCI Series 2, LLC; CCI Series 3, LLC; CCI Series 4, LLC; CCI Series 5, LLC; CCI Series 6, LLC; CCI Series 7, LLC; CCI Series 8, LLC; CCI Series 9, LLC; CCI Series 10, LLC; and CCI Series 11, LLC (collectively the “Series”), to CCH (the “Transaction”).
WHEREAS, the Series owns 100% of the common stock of Cumberland Coal Corporation, a Delaware corporation (“CCC”), a surface and underground mining operator with locations in Kentucky and Virginia.
WHEREAS, Tacora is receiving, as consideration under the Transaction, a “Contingent Performance Note” that entitles Tacora or its designee to receive an amount equal to 100% of the Net Sale Value (as defined therein) realized in connection with a sale of all or substantially all of the assets or equity of CCI or CCC (“Sale Transaction”) up to a value of $25,000,000 (“Contingent Performance Note Value”) as set forth more fully in the MITA. A Sale Transaction includes but is not limited to the filing by the Company, any Series, or CCC of a voluntary petition under any applicable bankruptcy, insolvency, or reorganization law, or the commencement of an involuntary case or proceeding against the Company, any Series, or CCC under any such law by a creditor or other party in interest that is not dismissed within thirty (30) days of filing. If the full amount of the Contingent Performance Note Value has not been paid to Seller (as defined in the Contingent Performance Note) in connection with a Sale Transaction, then any shortfall resulting therefrom shall be treated as a deficiency claim as defined in the Contingent Performance Note (“Contingent Performance Note Deficiency”).
WHEREAS, Range Impact, Inc., a Nevada corporation (“Range Impact”), has entered into a Stock Purchase Agreement, dated as of the date hereof (the “SPA”), pursuant to which Tacora has agreed to purchase $10,000,000 of Range Impact common stock as set forth in more detail in the SPA.
WHEREAS, Range Bluegrass is a wholly owned subsidiary of Range Impact, and Range Bluegrass is receiving significant benefit, both directly and indirectly, from Sale Transaction and SPA;
WHEREAS, Range Cumberland (as defined below) has entered into a Loan and Security Agreement, dated as of the date hereof (the “Loan and Security Agreement”), pursuant to which Range Cumberland, LLC, an Ohio limited liability company and wholly owned subsidiary of Range Impact (“Range Cumberland”), has agreed to lend CCC up to $4,000,000.00, secured by all of the assets of CCC as set forth in more detail in the Loan and Security Agreement.
WHEREAS, Range Bluegrass owns an unpermitted mineral reserve located at the Premier Elkhorn mine complex in Pike, Letcher and Floyd Counties, Kentucky, comprised of an estimated 16.3 million and 51.1 million tons of High-Vol A coal reserves located in the Glamorgan and Lower Banner seams, respectively (the “New Frontier Mineral Reserves”).
WHEREAS, Range Bluegrass is interested in providing Tacora with an opportunity to recover any Contingent Performance Note Deficiency through a structured transaction using its New Frontier Mineral Reserve, and Tacora is interested in participating in a structured transaction with Range Bluegrass related to its New Frontier Mineral Reserves if the Sale Transaction results in a Contingent Performance Note Deficiency.
NOW THEREFORE, for the consideration described herein, the premises and mutual covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows.
AGREEMENT
1. Agreement. If the Sale Transaction results in a Contingent Performance Note Deficiency, then Range Bluegrass and Tacora hereby agree to work in good faith to enter into a joint venture partnership with a transaction structure that maximizes the value of the New Frontier Mineral Reserves for Range Bluegrass and Tacora (“Investment Recovery Opportunity”). All terms and conditions of the transaction structure related to the Investment Recovery Opportunity would be standard and customary for a transaction of this type and would be mutually agreed upon by the Parties. For clarification purposes, only the New Frontier Mineral Reserves would be included in the Investment Recovery Opportunity, with all other real and personal property assets of Range Bluegrass expressly excluded hereunder.
2. No Guarantee of Return. Tacora hereby acknowledges and agrees that the Investment Recovery Opportunity, if entered into because of a Contingent Performance Note Deficiency, involves substantial risks and uncertainties, and therefore, neither Range Impact nor Range Bluegrass are providing any guarantees or assurances, financial or otherwise, that the Investment Recovery Opportunity will generate any investment return or fully compensate Tacora for any Contingent Performance Note Deficiency.
3. Consideration and Enforceability. Range Bluegrass hereby expressly acknowledges and agrees that Range Bluegrass is receiving: (a) good, valuable, and sufficient consideration for this Agreement and for all obligations, covenants, restrictions, and requirements set forth herein via the Sale Transaction and SP; (b) such consideration has been received, is adequate, and fully supports the enforceability of this Agreement; (c) this Agreement and each of its terms, conditions, obligations, and requirements are fair, reasonable, valid, and enforceable in all respects; and (d) neither this Agreement nor any provision hereof is unconscionable, overbroad, inequitable, or otherwise unenforceable. Range Bluegrass further irrevocably waives, releases, and relinquishes any and all claims, defenses, counterclaims, offsets, arguments, or positions, whether known or unknown, that this Agreement lacks consideration or is invalid, void, voidable, unreasonable, unenforceable, or otherwise incapable of enforcement, in whole or in part, for any reason whatsoever.
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4. Assignment. Except as otherwise provided herein, no Party shall be permitted to assign any right or interest under this Agreement without the prior written consent of the other Party hereto, not to be unreasonably withheld, conditioned or delayed. Tacora may assign this Agreement and the rights set forth herein to any entity which is owned in part or whole by Tacora without consent of Range Bluegrass.
4. Invalidity. Each of the provisions contained in this Agreement is distinct and severable and a determination of illegality, invalidity or unenforceability of any such provision or part hereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof, unless because of such determination this Agreement would fail in its essential purposes. Any provision which shall be deemed illegal, invalid or unenforceable shall be deemed modified to the minimum extent necessary to render it enforceable while preserving its intent to the fullest extent permitted by law.
5. Binding Effect. This Agreement shall be binding upon, and shall inure to the benefit of, the Parties hereto and their respective heirs, beneficiaries, personal representatives, successors and permitted assigns.
6. Governing Law. This Agreement shall be governed by the internal laws of the State of Delaware without regard to conflicts of law principles. The Parties hereby irrevocably and unconditionally submit to the jurisdiction of the federal and state courts of Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement.
7. Counterparts. This Agreement may be executed in PDF format (or similar copy) sent by e-mail, and such transmission shall be valid and binding to the same extent as if it were an original. This Agreement may be signed in one or more counterparts, all of which when taken together shall constitute the same documents. For all evidentiary purposes, any one complete counter set of this Agreement shall be considered an original. The exchange of copies of this Agreement and of signature pages in PDF format (or similar copy) sent by e-mail shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted in PDF format (or similar copy) sent by e-mail shall be deemed to be their original signatures for all purposes.
8. Entire Agreement. This Agreement, read in conjunction with the MITA and SPA, sets forth the entire and exclusive understanding and agreement of the Parties concerning the subject matter of this Agreement and supersedes all prior negotiations, agreements or understandings of the Parties, whether oral or written, with respect to the same. The recitals constitute terms and conditions of the Agreement, are included as if fully restated verbatim herein, and the Parties agree to be bound by them.
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9. Amendments. No amendment, modification or waiver of any of the terms or provisions of this Agreement shall be binding or effective unless in writing signed by or on behalf of the Party to be bound thereby.
10. Notices. Any notice, demand, request, consent, approval, or other communication required or permitted under this Agreement (collectively, “Notice”) shall be in writing and shall be deemed given when: (a) personally delivered; (b) sent by nationally recognized overnight courier with tracking confirmation; (c) transmitted by electronic mail with confirmation of transmission and no notice of delivery failure; or (d) three (3) business days after being deposited in the United States mail, certified mail, return receipt requested, postage prepaid. Notices shall be sent to the addresses and email addresses designated by the parties below, or to such other address or email address as either party may designate by Notice in accordance with this Section.
If to Range Bluegrass:
Range Bluegrass Land, LLC
200 Park Avenue, Suite 400
Orange Village, Ohio 44122
Attn: Michael Cavanaugh, CEO
Email: [email protected]
With a copy (not constituting Notice) to:
UB Greensfelder LLP
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113
Attn: Howard Groedel, Esq.
If to Tacora:
Tacora Capital, LP
Attn: Keri Findley
2505 Pecos Street
Austin, TX 78703
Email: [email protected]
And
Tacora Capital, LP
Attn: Claire Ellison
2505 Pecos Street
Austin, TX 78703
Email: [email protected]
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With a copy (not constituting Notice) to:
Bailey & Glasser LLP
Attn: Luke Thomas
94 Long Street, Suite 200
Westover, WV 26501
Email: [email protected]
Each party agrees that electronic signatures and electronic delivery of Notices shall have the same force and effect as original signatures and physical delivery.
11. No Waiver. No waiver of any breach or default shall constitute a waiver of any other or subsequent breach or default.
12. Authority. Each party represents and warrants that it has full power and authority to enter into and perform this Letter Agreement and that the individual signing on its behalf is duly authorized to do so.
13. Further Assurances. Each party agrees to execute and deliver such additional documents and to take such further actions as may be reasonably necessary to carry out the purposes and intent of this Agreement.
14. Interpretation. The parties acknowledge that each party has had the opportunity to consult with counsel of its choosing. Accordingly, this Letter Agreement shall not be construed more strictly against either party as the drafter hereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement as of the Effective Date.
| TACORA: | ||
| TACORA CAPITAL, LP | ||
| By: | ||
| Name: | Keri Findley | |
| Title: | Authorized Signatory | |
| RANGE BLUEGRASS: | ||
| RANGE BLUEGRASS LAND, LLC | ||
| By: | ||
| Name: | Michael Cavanaugh | |
| Title: | Chief Executive Officer | |
| 6 |
Exhibit 10.5
CONTINGENT PERFORMANCE NOTE
Date: May 31, 2026
This Contingent Performance Note, dated as of the date set forth above, is by and among Tacora Capital, LP, a Delaware limited partnership (“Seller”); Cumberland Coal Holdings, LLC, an Ohio limited liability company (“Buyer”); Cumberland Coal Investments, LLC, a Delaware limited liability company (the “Company”); CCI Series 1, LLC; CCI Series 2, LLC; CCI Series 3, LLC; CCI Series 4, LLC; CCI Series 5, LLC; CCI Series 6, LLC; CCI Series 7, LLC; CCI Series 8, LLC; CCI Series 9, LLC; CCI Series 10, LLC; and CCI Series 11, LLC, each a Delaware series limited liability company (collectively, the “Series”), and Cumberland Coal Corporation, a Delaware corporation (“CCC”), and Range Bluegrass Land, LLC, an Ohio limited liability company, for the purpose of acknowledging and agreeing to Section 6.2 of this Contingent Performance Note..
Obligor: Collectively, Buyer, the Company, the Series, and CCC
Holder: Seller
Amount: Twenty-Five Million Dollars ($25,000,000) (the “Contingent Performance Note Value”)
Reference Agreement: That certain Membership Interest Transfer Agreement, dated as of May 31, 2026, by and among the Company, the Series, Seller, Buyer, and, solely for the purposes of Section 2 set forth therein, Range Bluegrass Land, LLC, an Ohio limited liability company (the “Transfer Agreement”)
Recitals
WHEREAS, pursuant to the Transfer Agreement, Seller has transferred, assigned, and delivered to Buyer all of its rights, title, and interests in and to the Membership Interests (as defined therein) of the Company and each of the Series; and
WHEREAS, as consideration for such transfer, Buyer, CCC, the Company, and each of the Series has agreed to deliver to Seller this Contingent Performance Note, entitling Seller to receive payments as set forth herein in the amount of the Contingent Performance Note Value; and
WHEREAS, this Contingent Performance Note is being issued on the Closing Date in accordance with Section 2 of the Transfer Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer, the Company, each of the Series, and CCC, collectively, hereby unconditionally and irrevocably promises to pay to Seller, or Seller’s designee, the amounts set forth herein, subject to and in accordance with the following terms and conditions.
Article 1. Definitions
Unless otherwise defined herein, capitalized terms used in this Contingent Performance Note shall have the meanings ascribed to them in the Transfer Agreement. The following additional terms shall have the meanings set forth below:
“Business Day” means any day other than a Saturday, Sunday, or day on which commercial banks in the State of Delaware are authorized or required to close.
“Contingent Performance Note Deficiency” means any shortfall in the Contingent Performance Note Value remaining unpaid to Seller once the majority of the equity or assets of CCC have been sold, excluding any assets with de minimis value.
“Event of Default” has the meaning set forth in Article 5 of this Contingent Performance Note.
“Maturity Date” means the day following the day in which the full Contingent Performance Note Value has been paid in full to Seller.
“Net Sale Value” means the aggregate cash or other non-cash consideration provided by an arms-length third-party purchaser in one or more Sale Transactions, which amount shall be net of customary transaction costs, any third-party debt repayments, sales taxes, or other fees and expenses directly related to the Sale Transaction (collectively, “Sale Transaction Expenses”), mutually agreed to by Buyer and Seller in good faith.
“Sale Transaction” means (a) a sale of all, substantially all, or any part of the assets or equity of the Company, the Series, or CCC, whether occurring in one or more transactions, or (b) the filing by the Company, any Series, or CCC of a voluntary petition under any applicable bankruptcy, insolvency, or reorganization law, or the commencement of an involuntary case or proceeding against the Company, any Series, or CCC under any such law by a creditor or other party in interest that is not dismissed within thirty (30) days of filing.
“Security Interests” means any security interests, liens, and encumbrances of CCC, or its assets or the equity in CCC.
Article 2. Payment Obligations
Section 2.1. Principal Payment Obligation. Buyer, the Company, Series, and CCC hereby unconditionally promises to pay to Seller an amount equal to one hundred percent (100%) of the Net Sale Value realized in connection with any Sale Transaction, up to the Contingent Performance Note Value of Twenty-Five Million Dollars ($25,000,000).
Section 2.2. Priority of Payment. The Contingent Performance Note shall be kept in a position as if it were in first priority lien position, except for any security interests, liens or rights of the bond insurers (“Bond Insurers”) of Buyer, the Company, the Series and CCC, which have a prior superior priority lien position and prior priority right to payment to this Contingent Performance Note (“Bond Priority Lien Position”). The preceding sentence shall not increase the rights of the Bond Insurers or the Bond Priority Lien Position, it is merely to acknowledge that rights may exist and if those rights or positions have priority those rights are not modified hereby. Buyer, the Company, the Series and CCC shall take all necessary steps to cause the Contingent Performance Note to be the first priority for payment in any Sale Transaction No Security Interest (except for the Bond Insurers’ Bond Priority Lien Position, if those have priority based upon normal priority laws and interpretation thereof) shall be superior to the Contingent Performance Note unless Seller has agreed in writing to such priority. If any Bond Insurer or exiting bond is replaced with a different Bond Insurer or a new bond, then the lien position of the new Bond Insurer and/or new bond shall have no better lien position or collateral than the existing Bond Insurer and/or bond.
Section 2.3. Excess Proceeds. If the full amount of the Contingent Performance Note Value has been paid to Seller in connection with one or more Sale Transactions, then any excess Net Sale Value shall be paid to Buyer or its designee.
Section 2.4. Asset Sales. The sale proceeds of any equipment or other assets of CCC that are not part of a sale of all, or substantially all, of the assets or equity of the Company, the Series, or CCC shall be paid to Seller when sold and will be considered a Sale Transaction, subject only to then-existing Security Interests (which shall include the Bond Insurers’ Bond Priority Lien Position) which have been agreed upon by Seller in writing to be superior to the Contingent Performance Note.
Section 2.5. Reduction of Contingent Performance Note Value. The Contingent Performance Note Value shall only be reduced by the actual amount of money delivered to Seller or its designee, and none of the Sale Transaction Expenses shall reduce or eliminate any of the Contingent Performance Note Value.
Section 2.6. Payment Timing. Payment of the applicable portion of Net Sale Value shall be made to Seller within five (5) Business Days following the closing of any Sale Transaction and receipt of proceeds by Buyer, the Company, CCC, or any of their respective affiliates or designees. All payments shall be made in immediately available funds by wire transfer to an account designated in writing by Seller.
Section 2.7. Late Payment Interest. Any amount payable hereunder that is not paid when due shall bear interest from the date such payment was due until the date paid at a rate equal to the lesser of (a) eighteen percent (18%) per annum, compounded daily, or (b) the maximum rate permitted by applicable law.
Article 3. Affirmative Covenants of Buyer, the Company and CCC
Section 3.1. Notice of Sale Transaction. Buyer, the Company, the Series, and/or CCC shall provide Seller with not less than thirty (30) days’ prior written notice of any proposed or contemplated Sale Transaction, which notice shall include the material terms thereof, including the identity of the proposed purchaser, the proposed purchase price, and the assets or equity to be sold. Seller, in its sole and absolute discretion, may agree to a notice period shorter than thirty (30) days if the contemplated Sale Transaction has a targeted closing date of less than thirty (30) days.
Section 3.2. Consent to Sale Transaction Terms. No Sale Transaction shall be consummated unless (a) the terms thereof are commercially reasonable and reflect fair market value as determined in good faith, and (b) Seller has been afforded a reasonable notice of the Sale Transaction as set forth in Section 3.1. Buyer shall not consummate any Sale Transaction on terms that are materially less favorable to Seller than those previously disclosed to Seller without Seller’s prior written consent.
Section 3.3. Financial Reporting. Beginning on the first calendar quarter following the Closing Date and continuing until the Contingent Performance Note Value has been paid in full, Buyer shall deliver to Seller, within thirty (30) days following the end of each calendar quarter: (a) unaudited financial statements of CCC, the Company, and the Series, including balance sheet, income statement, and cash flow statement; (b) a summary of all asset dispositions during such quarter; (c) a calculation of the remaining Contingent Performance Note Value; and (d) a description of any pending or proposed Sale Transactions.
Section 3.4. Books and Records; Inspection Rights. Buyer shall, and shall cause the Company and CCC to, maintain complete and accurate books and records relating to all Sale Transactions, asset valuations, and proceeds received. Seller shall have the right, upon not less than five (5) Business Days’ prior written notice and during normal business hours, to inspect and audit such books and records, at Seller’s expense, to verify compliance with this Contingent Performance Note.
Section 3.5. Preservation of Assets. Buyer shall, and shall cause the Company and CCC to, use commercially reasonable efforts to preserve, protect, maintain, and operate the assets of CCC, the Company, and the Series in good standing and in compliance with applicable law so as to preserve and maximize the value of such assets for the benefit of Seller’s rights under this Contingent Performance Note. Buyer shall not permit or cause any waste, abandonment, or material diminution in value of the assets of CCC, the Company, or the Series, except in the ordinary course of mining operations.
Section 3.6. No Impairment. Buyer shall not, and shall cause the Company, the Series and/or CCC not to, take any action or fail to take any action that is designed to, or would reasonably be expected to, impair, frustrate, diminish, delay, or defeat Seller’s right to receive the full Contingent Performance Note Value, including without limitation: (a) transferring assets for less than fair market value; (b) encumbering assets with liens or security interests outside of the ordinary course of business unless approved in writing by Seller; (c) distributing or diverting proceeds of any Sale Transaction other than to Seller as required hereunder; or (d) entering into any transaction with affiliates of Buyer on terms less favorable than would be obtained in an arms-length transaction.
Section 3.7. Insurance. Buyer shall cause CCC, the Company, and the Series to maintain insurance coverage (or self-insurance in commercially reasonable amounts) with respect to the material assets of CCC, the Company, and the Series. In the event of a casualty loss resulting in insurance proceeds, such proceeds shall be paid to Seller as a Sale Transaction to the extent of the remaining Contingent Performance Note Value.
Article 4. Negative Covenants of Buyer
Section 4.1. No Subordination. Buyer shall not, and shall cause the Company, the Series, and CCC not to, grant or permit any lien, encumbrance, pledge, or security interest that would be senior to or pari passu with the Contingent Performance Note without the prior written consent of Seller.
Section 4.2. No Transfers Without Consent. Buyer shall not sell, assign, convey, transfer, or otherwise dispose of any of its membership interests in the Company, any Series, or any equity interest in CCC, whether directly or indirectly, without Seller’s prior written consent, unless such transfer is made subject to and conditioned upon the transferee’s written assumption of all of Buyer’s obligations under this Contingent Performance Note, in form and substance satisfactory to Seller.
Section 4.3. Anti-Dilution. Buyer shall not, and shall cause the Company, any Series, and CCC not to, issue any additional equity interests, convertible instruments, or rights to acquire equity interests in the Company, any Series, or CCC if such issuance would dilute or diminish the value of the assets available to satisfy the Contingent Performance Note Value, without the prior written consent of Seller.
Article 5. Events of Default
Section 5.1. Events of Default. Each of the following shall constitute an “Event of Default” under this Contingent Performance Note:
(a) Buyer, the Company, Series or CCC fails to make any payment required hereunder to Seller within ten (10) Business Days after such payment becomes due;
(b) Buyer, the Company, Series or CCC breaches any covenant, obligation, or agreement set forth in this Contingent Performance Note, and such breach continues unremedied for a period of twenty (20) days after written notice thereof from Seller to Buyer;
(c) Buyer, the Company, Series or CCC commences a voluntary case or proceeding under any applicable bankruptcy, insolvency, reorganization, or similar law, or an involuntary case is commenced against any of them and not dismissed within sixty (60) days;
(d) Buyer, the Company, Series or CCC makes a general assignment for the benefit of creditors, admits in writing its inability to pay its debts as they become due, or ceases operations;
(e) Any material representation or statement made by Buyer, the Company, Series or CCC in connection with this Contingent Performance Note or the Transfer Agreement proves to have been false or misleading in any material respect when made;
(f) Buyer, the Company, Series or CCC consummates a Sale Transaction without providing the required notice to Seller, or diverts or fails to remit Sale Transaction proceeds to Seller as required hereunder;
(g) Buyer, the Company, Series or CCC takes any action, or permits any action to be taken, that materially impairs, frustrates, or diminishes Seller’s rights under this Contingent Performance Note or the value of the assets available to satisfy the Contingent Performance Note Value; or
(h) Buyer, the Company, Series or CCC breaches any material obligation under the Transfer Agreement that would adversely affect Seller’s rights under this Contingent Performance Note.
Section 5.2. Remedies Upon Event of Default. Upon the occurrence and during the continuance of an Event of Default:
(a) The entire unpaid Contingent Performance Note Value (less amounts previously paid to Seller hereunder) shall, at Seller’s option, become immediately due and payable without further notice or demand;
(b) Seller shall be entitled to exercise all rights and remedies available at law or in equity, including seeking specific performance, injunctive relief, and monetary damages;
(c) Buyer, the Company, Series and CCC, each having joint and several liability, shall pay all costs and expenses incurred by Seller in connection with the enforcement of this Contingent Performance Note, including reasonable attorneys’ fees; and
(d) Seller shall have the right to appoint a receiver or similar official over the assets of CCC, the Company, and the Series to the fullest extent permitted by law.
Section 5.3. Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law, equity, or under the Transfer Agreement or any related agreement.
Article 6. Contingent Performance Note Deficiency
Section 6.1. Deficiency Determination. If the full amount of the Contingent Performance Note Value has not been paid to Seller in connection with one or more Sale Transactions once the majority of the equity or assets of CCC have been sold (excluding any assets with de minimis value), any shortfall resulting therefrom shall be treated as a Contingent Performance Note Deficiency.
Section 6.2. Recovery of Deficiency. If a Contingent Performance Note Deficiency exists after the aforementioned Sale Transactions have closed and cash proceeds delivered (excluding the sale of any assets with de minimis value), then Seller shall have the opportunity to seek to recover any Contingent Performance Note Deficiency pursuant to the Letter Agreement, dated as of the date hereof, by and among Seller andRange Bluegrass Land, LLC.
Section 6.3. Survival of Deficiency Claim. The right of Seller to pursue recovery of any Contingent Performance Note Deficiency shall survive the Maturity Date and shall continue until such deficiency has been satisfied in full.
Article 7. Representations and Warranties of Buyer
Buyer, the Company, Series and CCC hereby represent and warrant to Seller as follows:
Section 7.1. Each of Buyer, the Company, Series and CCC is a limited liability company or corporation, as the case may be, duly organized, validly existing, and in good standing under the laws of the State of Ohio or the State of Delaware, as applicable, and has the full power and authority to execute, deliver, and perform this Contingent Performance Note.
Section 7.2. The execution, delivery, and performance of this Contingent Performance Note by Buyer, the Company, Series and CCC has been duly authorized by all necessary action on the part of Buyer, the Company, Series and CCC, and each of the aforesaid respective member(s) or authorized representatives.
Section 7.3. This Contingent Performance Note constitutes the legal, valid, and binding obligation of Buyer, the Company, Series and CCC, enforceable against Buyer, the Company, Series and CCC, in accordance with its terms, subject to applicable bankruptcy, insolvency, and similar laws affecting creditors’ rights generally and to general principles of equity.
Section 7.4. The execution and delivery of this Contingent Performance Note does not conflict with or result in a breach of any agreement, instrument, order, judgment, or law to which Buyer is a party or by which Buyer, the Company, Series and CCC, is bound.
Article 8. Miscellaneous
Section 8.1. Assignment by Seller. Seller may freely assign, transfer, pledge, or grant a security interest in this Contingent Performance Note and all rights hereunder to an affiliate of Seller with prior notice to Buyer. Seller may not assign, transfer, pledge, or grant a security interest in this Contingent Performance Note to a non-affiliate third party of Seller, without the written consent of Buyer which may not be unreasonably withheld, delayed, or conditioned.
Section 8.2. No Assignment by Buyer. Buyer, the Company, Series and CCC, may not assign or delegate any of its obligations under this Contingent Performance Note without the prior written consent of Seller.
Section 8.3. Waiver by Buyer. Buyer, the Company, Series and CCC, hereby waives presentment, demand for payment, protest, notice of protest, notice of dishonor, and all other notices and demands in connection with the delivery, acceptance, performance, or enforcement of this Contingent Performance Note, to the fullest extent permitted by law.
Section 8.4. Amendments and Waivers. No amendment, modification, or waiver of any provision of this Contingent Performance Note shall be effective unless in writing signed by Buyer and Seller. No failure or delay on the part of Seller in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right preclude any other or further exercise thereof or the exercise of any other right.
Section 8.5. Governing Law; Jurisdiction. This Contingent Performance Note shall be governed by and construed in accordance with the internal laws of the State of Delaware without regard to conflicts of law principles. The parties hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Delaware and the Delaware Court of Chancery for the purpose of any suit, action, or other proceeding arising out of or based upon this Contingent Performance Note.
Section 8.6. Severability. If any provision of this Contingent Performance Note is determined to be illegal, invalid, or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect.
Section 8.7. Notices. All notices, demands, or other communications under this Contingent Performance Note shall be in writing and shall be deemed given when delivered personally, sent by nationally recognized overnight courier, or sent by email with confirmation of receipt, addressed to the respective parties at their addresses set forth in the Transfer Agreement or such other address as a party may designate in writing.
Section 8.8. Counterparts. This Contingent Performance Note may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. Signatures transmitted in PDF format or similar electronic copy shall be deemed original signatures.
Section 8.9. Entire Agreement; Relationship to Transfer Agreement. This Contingent Performance Note is issued pursuant to and in connection with the Transfer Agreement and shall be construed consistently therewith. In the event of any conflict between the terms of this Contingent Performance Note and the Transfer Agreement with respect to the Contingent Performance Note, the terms of this Contingent Performance Note shall control. Except as expressly set forth herein, this Contingent Performance Note does not amend, modify, or supersede any provision of the Transfer Agreement.
Section 8.10. Survival. The terms of this Contingent Performance Note shall survive the Closing and remain in full force and effect until all obligations of Buyer hereunder have been satisfied in full, including payment of the full Contingent Performance Note Value or satisfaction of any Contingent Performance Note Deficiency.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Buyer has duly executed and delivered this Contingent Performance Note as of the date first written above.
| BUYER: | ||
| CUMBERLAND COAL HOLDINGS, LLC | ||
| By: | ||
| Name: | James Davidson | |
| Title: | Manager | |
| CUMBERLAND COAL INVESTMENTS, LLC | ||
| By: | ||
| Name: | James Davidson | |
| Title: | Manager | |
CCI SERIES 1, LLC; CCI SERIES 2, LLC; CCI SERIES 3, LLC; CCI SERIES 4, LLC; CCI SERIES 5, LLC; CCI SERIES 6, LLC; CCI SERIES 7, LLC; CCI SERIES 8, LLC; CCI SERIES 9, LLC; CCI SERIES 10, LLC; and CCI SERIES 11, LLC, each a Delaware series limited liability company
| By: | ||
| Name: | James Davidson | |
| Title: | Manager of each series |
| CUMBERLAND COAL CORPORATION | ||
| By: | ||
| Name: | James Davidson | |
| Title: | President | |
| ACKNOWLEDGED AND AGREED TO SECTION 6.2 | ||
| RANGE BLUEGRASS LAND, LLC: | ||
| By: | ||
| Name: | Michael Cavanaugh | |
| Title: | Manager | |
| ACKNOWLEDGED AND AGREED: | ||
| SELLER: | ||
| TACORA CAPITAL, LP | ||
| By: | ||
| Name: | Keri Findley | |
| Title: | Authorized Signatory | |
Exhibit 99.1
Range Impact Announces $10 Million Investment from Tacora Capital
CLEVELAND, OHIO – (June 3, 2026) – Range Impact, Inc. (OTC: RNGE) (“Range Impact” or the “Company”), a public company dedicated to acquiring, reclaiming and repurposing distressed coal mine properties throughout Appalachia, today announced a $10 million investment from Tacora Capital LP (“Tacora”) and a $4 million secured loan from its new wholly owned subsidiary, Range Cumberland LLC (“Range Cumberland”) to Cumberland Coal Corporation (“CCC”), a private mining company.
Tacora, a private capital fund located in Austin, Texas, has committed to purchase $10 million of Range Impact’s common stock through monthly financings over the next 12 months, priced at the volume weighted average price for each applicable month. The first common stock issuance closed on May 31, 2026, pursuant to which the Company issued Tacora 6,256,704 shares of the Company’s common stock in exchange for $1,750,000. Each of the eleven subsequent monthly investments will be $750,000.
Concurrently, Range Cumberland has agreed to provide a loan in an amount up to $4 million to CCC. CCC will use the loan proceeds for general working capital purposes.
Michael Cavanaugh, Range Impact’s Chief Executive Officer, stated, “We are excited to welcome Tacora Capital as our newest institutional investor.” Cavanaugh added, “Tacora’s $10 million investment represents a validating endorsement of our unique strategy and the significant opportunities we see ahead in the acquisition, reclamation, and redevelopment of former coal mine land throughout Appalachia. We are privileged to have such a sophisticated and well-respected investor as our partner and look forward to working closely with them to continue to build long-term value for all our shareholders.”
About Range Impact, Inc.
Headquartered in Cleveland, Ohio, Range Impact is a public company (OTC: RNGE) dedicated to improving the health and wellness of people and the planet through an innovative approach to impact investing. Range Impact seeks to develop long-term solutions to environmental, social, and economic challenges, with a particular focus on acquiring, reclaiming and repurposing mine sites and other undervalued land in economically disadvantaged communities throughout Appalachia. Range Impact takes an opportunistic approach to impact investing by leveraging its competitive advantages and looking to solve old problems in new ways. Range Impact seeks to thoughtfully allocate its capital into strategic opportunities that are expected to make a positive impact on the people-planet ecosystem and generate strong investment returns for its shareholders.
Notice Regarding Forward-Looking Statements
This press release contains “forward-looking statements” as that term is defined in Section 27(a) of the Securities Act of 1933, as amended and Section 21(e) of the Securities Exchange Act of 1934, as amended. Statements in this press release which are not purely historical are forward-looking statements and include any statements regarding beliefs, plans, expectations or intentions regarding the future. Although we believe that these statements are based on reasonable assumptions, they are subject to numerous factors that could cause actual outcomes and results to be materially different from those indicated in such statements. Such factors include, among others, the inherent uncertainties associated with new projects and development stage companies, timing of clinical trials and product development, business strategy and new lines of business. These forward-looking statements are made as of the date of this press release, and we assume no obligation to update the forward-looking statements, or to update the reasons why actual results could differ from those projected in the forward-looking statements. Although we believe that any beliefs, plans, expectations and intentions contained in this press release are reasonable, there can be no assurance that any such beliefs, plans, expectations or intentions will prove to be accurate. Investors should consult all of the information set forth herein and should also refer to the risk factors disclosure outlined in our annual report on Form 10-K for the most recent fiscal year, our quarterly reports on Form 10-Q and other periodic reports filed from time-to-time with the Securities and Exchange Commission.
Range Impact, Inc.
Investor Relations
P: +1 (216) 304-6556
W: www.rangeimpact.com