Common use of Establishment of Special Member’s Percentage Interest Clause in Contracts

Establishment of Special Member’s Percentage Interest. (a) The Managing Member previously designated and created a Membership Interest designated as the “Special Member’s Percentage Interest” and held by the Special Member. (i) Upon each Special Member’s Percentage Increase Event, the Special Member’s Percentage Interest shall increase by one percent for each $10 million in Coal Assets sold or otherwise transferred to the MLP or its subsidiaries in connection with such Special Member’s Percentage Increase Event, it being understood and agreed that such increase in the Special Member’s Percentage Interest shall be the sole and exclusive consideration for each $10 million of such Coal Assets except to the extent set forth in the definitive agreements providing for the sale of such Coal Assets. The value of the Coal Assets shall be determined by agreement of the Special Member and the Board and set forth in the definitive agreements providing for the sale of such Coal Assets; provided, however, that nothing herein shall give rise to any obligation whatsoever of any party hereto or any of their Affiliates to negotiate or enter into such definitive agreements or consummate such sale or disposition. The Special Member’s Percentage Interest will be evidenced by certificates issued by the Company. The Company shall increase Special Member’s Percentage Interest by a fraction of one percent to the extent that the agreed value of the Coal Assets exceeds a multiple of $10 million (for the avoidance of doubt, zero shall be deemed to be a multiple of $10 million for purposes of calculating such fraction), and the fraction shall be the excess over such multiple of $10 million (or zero) divided by $10 million. Nothing herein shall prohibit the Company from increasing the Special Member’s Percentage Interest in consideration for a de minimis amount of assets that are not Qualifying Assets purchased in connection with Coal Assets. (ii) It is anticipated that, during the term of the Leases, the Special Member may identify to the MLP opportunities to purchase Coal Assets that are owned by a third party that the MLP is not otherwise considering, and that the Company, in its capacity as the general partner of the MLP, will consider the acquisition of such Coal Assets. To the extent the MLP acquires such Coal Assets, the Company will, to the extent, if any, that the Company and the Special Member so agree, increase the Special Member’s Percentage Interest in consideration of the Special Member identifying such opportunities to the MLP. The determination of whether to acquire such Coal Assets will be made by the Company in the sole discretion of the Board. (c) Notwithstanding anything to the contrary, in no event shall the Special Member’s Percentage Interest exceed 40 percent. (d) The Special Member shall not sell, assign, transfer, convey, pledge, hypothecate, encumber or otherwise dispose of (collectively, a “Transfer”) its Special Member’s Percentage Interest without the prior written consent of the Board; provided, however, that the Special Member shall be entitled, upon prior written notice to the Board, to Transfer some or all of its Special Member’s Percentage Interest to (i) an Affiliate of the Special Member, (ii) to a financial institution in connection with the pledge of such Special Member’s Percentage Interest or (iii) any party in the event that the Company or its Affiliates do not exercise their redemption rights under Section 3.04(h) within 30 days of the happening of an event specified in (i) or (ii) under Section 3.04(h) that gives rise to such redemption right; provided that such transferee agrees to be bound by all of the terms and conditions of this Agreement. (e) Except as provided in Section 9.04, the Special Member’s Percentage Interest shall not entitle the Special Member or any other Person to vote on any matters with respect to the Company or otherwise. (f) The Board shall, from time to time, update Exhibit A hereto to reflect any increase in the Special Member’s Percentage Interest upon a Special Member’s Percentage Increase Event and the applicable IDR Percentage Interest of each Economic Member upon each such increase. The Board shall provide any such updated versions of Exhibit A to the Special Member promptly upon such updates. (g) Upon each Special Member’s Percentage Increase Event, as a condition to each increase in the Special Member’s Percentage Interest in connection therewith, the Special Member shall execute and deliver to the Company and the Board an Acknowledgement Agreement in the form of Exhibit B hereto. (h) The Special Member’s Percentage Interest may be redeemed by the Company or its Affiliates, in whole but not in part, at the option of the Company, at a redemption price equal to the Fair Market Value of the Special Member’s Percentage Interest (the “Redemption Price”) payable in immediately available funds to an account designated by the Special Member, if either: (i) the Special Member or any of its Affiliates delivers an Acceptance Notice to the MLP or otherwise exercises its rights pursuant to Section 9.1 of the Purchase Agreement; or (ii) there is a Change of Control with respect to the Special Member. The Company shall exercise its redemption option by delivering to the Special Member a written notice (the “Redemption Notice”), in the case of (i) within ten Days after the MLP’s receipt of the Acceptance Notice, and, in the case of (ii) within twenty days of the Change of Control of the Special Member, in each case specifying the Company’s election to redeem the Special Member’s Percentage Interest. If the Company exercises its redemption option hereunder, the closing of the transaction shall take place, in the case of (i) contemporaneously with, and shall be conditioned upon, the closing of the transaction contemplated by Section 9.1 of the Purchase Agreement unless extended for the determination of Fair Market Value and in such case, five days after the determination, and, in the case of (ii) within five (5) days after the determination of Fair Market Value unless extended because of the need to obtain necessary consents or approvals which the appropriate party is using commercially reasonable efforts to obtain. If the Company exercises its redemption option hereunder, the Company and the Special Member shall cooperate in good faith and enter into appropriate agreements, make (or cause to be made) appropriate deliveries and obtain (or cause to be obtained) any necessary consents or approvals, in each case to effect the redemption of the Special Member’s Percentage Interest. (i) Notwithstanding anything to the contrary, the provisions of this Article III with respect to the Special Member’s Percentage Interest shall terminate and the Special Member shall cease to have any rights under Article III, in each case automatically and without any action by any of the parties hereto upon the earlier to occur of: (i) the actual purchase of the Special Member’s Percentage Interest by the Company or its Affiliates upon a redemption pursuant to this Section 3.04 and (ii) if at any time subsequent to the term of the Leases, the Special Member’s Percentage Interest is zero or not outstanding. Upon such termination, the Board shall be entitled to amend or restate this Agreement to make such changes as it deems appropriate to reflect such event. (j) Nothing in this Agreement requires the Special Member to make a capital contribution to the Company.

Establishment of Special Member’s Percentage Interest. (a) The Managing Member previously designated hereby designates and created creates a Membership Interest to be designated as the “Special Member’s Percentage Interest” and held by the Special Member. (i) Upon each Special Member’s Percentage Increase Event, the Special Member’s Percentage Interest shall increase by one percent for each $10 million in Coal Assets sold or otherwise transferred to the MLP or its subsidiaries in connection with such Special Member’s Percentage Increase Event, it being understood and agreed that such increase in the Special Member’s Percentage Interest shall be the sole and exclusive consideration for each $10 million of such Coal Assets except to the extent set forth in the definitive agreements providing for the sale of such Coal Assets. The value of the Coal Assets shall be determined by agreement of the Special Member and the Board Managing Member and set forth in the definitive agreements providing for the sale of such Coal Assets; provided, however, that nothing herein shall give rise to any obligation whatsoever of any party hereto or any of their Affiliates to negotiate or enter into such definitive agreements or consummate such sale or disposition. The Special Member’s Percentage Interest will be evidenced by certificates issued by the Company. The Company shall increase Special Member’s Percentage Interest by a fraction of one percent to the extent that the agreed value of the Coal Assets exceeds a multiple of $10 million (for the avoidance of doubt, zero shall be deemed to be a multiple of $10 million for purposes of calculating such fraction), and the fraction shall be the excess over such multiple of $10 million (or zero) divided by $10 million. Nothing herein shall prohibit the Company from increasing the Special Member’s Percentage Interest in consideration for a de minimis amount of assets that are not Qualifying Assets purchased in connection with Coal Assets. (ii) It is anticipated that, during the term of the Leases, the Special Member may identify to the MLP opportunities to purchase Coal Assets that are owned by a third party that the MLP is not otherwise considering, and that the Company, in its capacity as the general partner of the MLP, will consider the acquisition of such Coal Assets. To the extent the MLP acquires such Coal Assets, the Company will, to the extent, if any, that the Company and the Special Member so agree, increase the Special Member’s Percentage Interest in consideration of the Special Member identifying such opportunities to the MLP. The determination of whether to acquire such Coal Assets will be made by the Company in the sole discretion of the Board. (c) Notwithstanding anything to the contrary, in no event shall the Special Member’s Percentage Interest exceed 40 percent. (d) The Special Member shall not sell, assign, transfer, convey, pledge, hypothecate, encumber or otherwise dispose of (collectively, a “Transfer”) its Special Member’s Percentage Interest without the prior written consent of the BoardManaging Member; provided, however, that the Special Member shall be entitled, upon prior written notice to the BoardManaging Member, to Transfer some or all of its Special Member’s Percentage Interest to (i) an Affiliate of the Special Member, (ii) to a financial institution in connection with the pledge of such Special Member’s Percentage Interest or (iii) any party in the event that the Company or its Affiliates do not exercise their redemption rights under Section 3.04(h) within 30 days of the happening of an event specified in (i) or (ii) under Section 3.04(h) that gives rise to such redemption right; provided that such transferee agrees to be bound by all of the terms and conditions of this Agreement. (e) Except as provided in Section 9.04, the Special Member’s Percentage Interest shall not entitle the Special Member or any other Person to vote on any matters with respect to the Company or otherwise. (f) The Board Managing Member shall, from time to time, update Exhibit A hereto to reflect any increase in the Special Member’s Percentage Interest upon a Special Member’s Percentage Increase Event and the applicable IDR Percentage Interest of each Economic Member upon each such increase. The Board Managing Member shall provide any such updated versions of Exhibit A to the Special Member promptly upon such updates. (g) Upon each Special Member’s Percentage Increase Event, as a condition to each increase in the Special Member’s Percentage Interest in connection therewith, the Special Member shall execute and deliver to the Company and the Board Managing Member an Acknowledgement Agreement in the form of Exhibit B hereto. (h) The Special Member’s Percentage Interest may be redeemed by the Company or its Affiliates, in whole but not in part, at the option of the Company, at a redemption price equal to the Fair Market Value of the Special Member’s Percentage Interest (the “Redemption Price”) payable in immediately available funds to an account designated by the Special Member, if either: (i) the Special Member or any of its Affiliates delivers an Acceptance Notice to the MLP or otherwise exercises its rights pursuant to Section 9.1 of the Purchase Agreement; or (ii) there is a Change of Control with respect to the Special Member. The Company shall exercise its redemption option by delivering to the Special Member a written notice (the “Redemption Notice”), in the case of (i) within ten Days after the MLP’s receipt of the Acceptance Notice, and, in the case of (ii) within twenty days of the Change of Control of the Special Member, in each case specifying the Company’s election to redeem the Special Member’s Percentage Interest. If the Company exercises its redemption option hereunder, the closing of the transaction shall take place, in the case of (i) contemporaneously with, and shall be conditioned upon, the closing of the transaction contemplated by Section 9.1 of the Purchase Agreement unless extended for the determination of Fair Market Value and in such case, five days after the determination, and, in the case of (ii) within five (5) days after the determination of Fair Market Value unless extended because of the need to obtain necessary consents or approvals which the appropriate party is using commercially reasonable efforts to obtain. If the Company exercises its redemption option hereunder, the Company and the Special Member shall cooperate in good faith and enter into appropriate agreements, make (or cause to be made) appropriate deliveries and obtain (or cause to be obtained) any necessary consents or approvals, in each case to effect the redemption of the Special Member’s Percentage Interest. (i) Notwithstanding anything to the contrary, the provisions of this Article III with respect to the Special Member’s Percentage Interest shall terminate and the Special Member shall cease to have any rights under Article III, in each case automatically and without any action by any of the parties hereto upon the earlier to occur of: (i) the actual purchase of the Special Member’s Percentage Interest by the Company or its Affiliates upon a redemption pursuant to this Section 3.04 and (ii) if at any time subsequent to the term of the Leases, the Special Member’s Percentage Interest is zero or not outstanding. Upon such termination, the Board Managing Member shall be entitled to amend or restate this Agreement to make such changes as it deems appropriate to reflect such event. (j) Nothing in this Agreement requires the Special Member to make a capital contribution to the Company.

Establishment of Special Member’s Percentage Interest. (a) The Managing Member previously designated and created a A Membership Interest designated as the “Special Member’s Percentage Interest” was previously designated and created and is held by the Special Member. (i) Upon each Special Member’s Percentage Increase Event, the Special Member’s Percentage Interest shall increase by one percent for each $10 million in Coal Assets sold or otherwise transferred to the MLP or its subsidiaries in connection with such Special Member’s Percentage Increase Event, it being understood and agreed that such increase in the Special Member’s Percentage Interest shall be the sole and exclusive consideration for each $10 million of such Coal Assets except to the extent set forth in the definitive agreements providing for the sale of such Coal Assets. The value of the Coal Assets shall be determined by agreement of the Special Member and the Board and set forth in the definitive agreements providing for the sale of such Coal Assets; provided, however, that nothing herein shall give rise to any obligation whatsoever of any party hereto or any of their Affiliates to negotiate or enter into such definitive agreements or consummate such sale or disposition. The Special Member’s Percentage Interest will be evidenced by certificates issued by the Company. The Company shall increase Special Member’s Percentage Interest by a fraction of one percent to the extent that the agreed value of the Coal Assets exceeds a multiple of $10 million (for the avoidance of doubt, zero shall be deemed to be a multiple of $10 million for purposes of calculating such fraction), and the fraction shall be the excess over such multiple of $10 million (or zero) divided by $10 million. Nothing herein shall prohibit the Company from increasing the Special Member’s Percentage Interest in consideration for a de minimis amount of assets that are not Qualifying Assets purchased in connection with Coal Assets. (ii) It is anticipated that, during the term of the Leases, the Special Member may identify to the MLP opportunities to purchase Coal Assets that are owned by a third party that the MLP is not otherwise considering, and that the Company, in its capacity as the general partner of the MLP, will consider the acquisition of such Coal Assets. To the extent the MLP acquires such Coal Assets, the Company will, to the extent, if any, that the Company and the Special Member so agree, increase the Special Member’s Percentage Interest in consideration of the Special Member identifying such opportunities to the MLP. The determination of whether to acquire such Coal Assets will be made by the Company in the sole discretion of the Board. (c) Notwithstanding anything to the contrary, in no event shall the Special Member’s Percentage Interest exceed 40 percent. (d) The Special Member shall not sell, assign, transfer, convey, pledge, hypothecate, encumber or otherwise dispose of (collectively, a “Transfer”) its Special Member’s Percentage Interest without the prior written consent of the Board; provided, however, that the Special Member shall be entitled, upon prior written notice to the Board, to Transfer some or all of its Special Member’s Percentage Interest to (i) an Affiliate of the Special Member, (ii) to a financial institution in connection with the pledge of such Special Member’s Percentage Interest or (iii) any party in the event that the Company or its Affiliates do not exercise their redemption rights under Section 3.04(h) within 30 days of the happening of an event specified in (i) or (ii) under Section 3.04(h) that gives rise to such redemption right; provided that such transferee agrees to be bound by all of the terms and conditions of this Agreement. (e) Except as provided in Section 9.04, the Special Member’s Percentage Interest shall not entitle the Special Member or any other Person to vote on any matters with respect to the Company or otherwise. (f) The Board shall, from time to time, update Exhibit A hereto to reflect any increase in the Special Member’s Percentage Interest upon a Special Member’s Percentage Increase Event and the applicable IDR Percentage Interest of each Economic the PVR Member upon each such increase. The Board shall provide any such updated versions of Exhibit A to the Special Member promptly upon such updates. (g) Upon each Special Member’s Percentage Increase Event, as a condition to each increase in the Special Member’s Percentage Interest in connection therewith, the Special Member shall execute and deliver to the Company and the Board an Acknowledgement Agreement in the form of Exhibit B hereto. (h) The Special Member’s Percentage Interest may be redeemed by the Company or its Affiliates, in whole but not in part, at the option of the Company, at a redemption price equal to the Fair Market Value of the Special Member’s Percentage Interest (the “Redemption Price”) payable in immediately available funds to an account designated by the Special Member, if either: (i) the Special Member or any of its Affiliates delivers an Acceptance Notice to the MLP or otherwise exercises its rights pursuant to Section 9.1 of the Purchase Agreement; or (ii) there is a Change of Control with respect to the Special Member. The Company shall exercise its redemption option by delivering to the Special Member a written notice (the “Redemption Notice”), in the case of (i) within ten Days after the MLP’s receipt of the Acceptance Notice, and, in the case of (ii) within twenty days of the Change of Control of the Special Member, in each case specifying the Company’s election to redeem the Special Member’s Percentage Interest. If the Company exercises its redemption option hereunder, the closing of the transaction shall take place, in the case of (i) contemporaneously with, and shall be conditioned upon, the closing of the transaction contemplated by Section 9.1 of the Purchase Agreement unless extended for the determination of Fair Market Value and in such case, five days after the determination, and, in the case of (ii) within five (5) days after the determination of Fair Market Value unless extended because of the need to obtain necessary consents or approvals which the appropriate party is using commercially reasonable efforts to obtain. If the Company exercises its redemption option hereunder, the Company and the Special Member shall cooperate in good faith and enter into appropriate agreements, make (or cause to be made) appropriate deliveries and obtain (or cause to be obtained) any necessary consents or approvals, in each case to effect the redemption of the Special Member’s Percentage Interest. (i) Notwithstanding anything to the contrary, the provisions of this Article ARTICLE III with respect to the Special Member’s Percentage Interest shall terminate and the Special Member shall cease to have any rights under Article ARTICLE III, in each case automatically and without any action by any of the parties hereto upon the earlier to occur of: (i) the actual purchase of the Special Member’s Percentage Interest by the Company or its Affiliates upon a redemption pursuant to this Section 3.04 and (ii) if at any time subsequent to the term of the Leases, the Special Member’s Percentage Interest is zero or not outstanding. Upon such termination, the Board shall be entitled to amend or restate this Agreement to make such changes as it deems appropriate to reflect such event. (j) Nothing in this Agreement requires the Special Member to make a capital contribution to the Company.

Establishment of Special Member’s Percentage Interest. (a) The Managing Member previously designated and created a Membership Interest designated as the “Special Member’s Percentage Interest” and held by the Special Member. (i) Upon each Special Member’s Percentage Increase Event, the Special Member’s Percentage Interest shall increase by one percent for each $10 million in Coal Assets sold or otherwise transferred to the MLP or its subsidiaries in connection with such Special Member’s Percentage Increase Event, it being understood and agreed that such increase in the Special Member’s Percentage Interest shall be the sole and exclusive consideration for each $10 million of such Coal Assets except to the extent set forth in the definitive agreements providing for the sale of such Coal Assets. The value of the Coal Assets shall be determined by agreement of the Special Member and the Board and set forth in the definitive agreements providing for the sale of such Coal Assets; provided, however, that nothing herein shall give rise to any obligation whatsoever of any party hereto or any of their Affiliates to negotiate or enter into such definitive agreements or consummate such sale or disposition. The Special Member’s Percentage Interest will be evidenced by certificates issued by the Company. The Company shall increase Special Member’s Percentage Interest by a fraction of one percent to the extent that the agreed value of the Coal Assets exceeds a multiple of $10 million (for the avoidance of doubt, zero shall be deemed to be a multiple of $10 million for purposes of calculating such fraction), and the fraction shall be the excess over such multiple of $10 million (or zero) divided by $10 million. Nothing herein shall prohibit the Company from increasing the Special Member’s Percentage Interest in consideration for a de minimis amount of assets that are not Qualifying Assets purchased in connection with Coal Assets. (ii) It is anticipated that, during the term of the Leases, the Special Member may identify to the MLP opportunities to purchase Coal Assets that are owned by a third party that the MLP is not otherwise considering, and that the Company, in its capacity as the general partner of the MLP, will consider the acquisition of such Coal Assets. To the extent the MLP acquires such Coal Assets, the Company will, to the extent, if any, that the Company and the Special Member so agree, increase the Special Member’s Percentage Interest in consideration of the Special Member identifying such opportunities to the MLP. The determination of whether to acquire such Coal Assets will be made by the Company in the sole discretion of the Board. (c) Notwithstanding anything to the contrary, in no event shall the Special Member’s Percentage Interest exceed 40 percent. (d) The Special Member shall not sell, assign, transfer, convey, pledge, hypothecate, encumber or otherwise dispose of (collectively, a “Transfer”) its Special Member’s Percentage Interest without the prior written consent of the Board; provided, however, that the Special Member shall be entitled, upon prior written notice to the Board, to Transfer some or all of its Special Member’s Percentage Interest to (i2) an Affiliate of the Special Member, (ii3) to a financial institution in connection with the pledge of such Special Member’s Percentage Interest or (iii4) any party in the event that the Company or its Affiliates do not exercise their redemption rights under Section 3.04(h) within 30 days of the happening of an event specified in (i) or (ii) under Section 3.04(h) that gives rise to such redemption right; provided that such transferee agrees to be bound by all of the terms and conditions of this Agreement. (e) Except as provided in Section 9.04, the Special Member’s Percentage Interest shall not entitle the Special Member or any other Person to vote on any matters with respect to the Company or otherwise. (f) The Board shall, from time to time, update Exhibit A hereto to reflect any increase in the Special Member’s Percentage Interest upon a Special Member’s Percentage Increase Event and the applicable IDR Percentage Interest of each Economic Member upon each such increase. The Board shall provide any such updated versions of Exhibit A to the Special Member promptly upon such updates. (g) Upon each Special Member’s Percentage Increase Event, as a condition to each increase in the Special Member’s Percentage Interest in connection therewith, the Special Member shall execute and deliver to the Company and the Board an Acknowledgement Agreement in the form of Exhibit B hereto. (h) The Special Member’s Percentage Interest may be redeemed by the Company or its Affiliates, in whole but not in part, at the option of the Company, at a redemption price equal to the Fair Market Value of the Special Member’s Percentage Interest (the “Redemption Price”) payable in immediately available funds to an account designated by the Special Member, if either: (i5) the Special Member or any of its Affiliates delivers an Acceptance Notice to the MLP or otherwise exercises its rights pursuant to Section 9.1 of the Purchase Agreement; or (ii6) there is a Change of Control with respect to the Special Member. The Company shall exercise its redemption option by delivering to the Special Member a written notice (the “Redemption Notice”), in the case of (i) within ten Days after the MLP’s receipt of the Acceptance Notice, and, in the case of (ii) within twenty days of the Change of Control of the Special Member, in each case specifying the Company’s election to redeem the Special Member’s Percentage Interest. If the Company exercises its redemption option hereunder, the closing of the transaction shall take place, in the case of (i) contemporaneously with, and shall be conditioned upon, the closing of the transaction contemplated by Section 9.1 of the Purchase Agreement unless extended for the determination of Fair Market Value and in such case, five days after the determination, and, in the case of (ii) within five (5) days after the determination of Fair Market Value unless extended because of the need to obtain necessary consents or approvals which the appropriate party is using commercially reasonable efforts to obtain. If the Company exercises its redemption option hereunder, the Company and the Special Member shall cooperate in good faith and enter into appropriate agreements, make (or cause to be made) appropriate deliveries and obtain (or cause to be obtained) any necessary consents or approvals, in each case to effect the redemption of the Special Member’s Percentage Interest. (i) Notwithstanding anything to the contrary, the provisions of this Article III with respect to the Special Member’s Percentage Interest shall terminate and the Special Member shall cease to have any rights under Article III, in each case automatically and without any action by any of the parties hereto upon the earlier to occur of: (i7) the actual purchase of the Special Member’s Percentage Interest by the Company or its Affiliates upon a redemption pursuant to this Section 3.04 and (ii) 8) if at any time subsequent to the term of the Leases, the Special Member’s Percentage Interest is zero or not outstanding. Upon such termination, the Board shall be entitled to amend or restate this Agreement to make such changes as it deems appropriate to reflect such event. (j) Nothing in this Agreement requires the Special Member to make a capital contribution to the Company.

Establishment of Special Member’s Percentage Interest. (a) The Managing Member previously designated and created a A Membership Interest designated as the “Special Member’s Percentage Interest” was previously designated and created and is held by the Special Member. (i) Upon each Special Member’s Percentage Increase Event, the Special Member’s Percentage Interest shall increase by one percent for each $10 million in Coal Assets sold or otherwise transferred to the MLP or its subsidiaries in connection with such Special Member’s Percentage Increase Event, it being understood and agreed that such increase in the Special Member’s Percentage Interest shall be the sole and exclusive consideration for each $10 million of such Coal Assets except to the extent set forth in the definitive agreements providing for the sale of such Coal Assets. The value of the Coal Assets shall be determined by agreement of the Special Member and the Board and set forth in the definitive agreements providing for the sale of such Coal Assets; provided, however, that nothing herein shall give rise to any obligation whatsoever of any party hereto or any of their Affiliates to negotiate or enter into such definitive agreements or consummate such sale or disposition. The Special Member’s Percentage Interest will be evidenced by certificates issued by the Company. The Company shall increase Special Member’s Percentage Interest by a fraction of one percent to the extent that the agreed value of the Coal Assets exceeds a multiple of $10 million (for the avoidance of doubt, zero shall be deemed to be a multiple of $10 million for purposes of calculating such fraction), and the fraction shall be the excess over such multiple of $10 million (or zero) divided by $10 million. Nothing herein shall prohibit the Company from increasing the Special Member’s Percentage Interest in consideration for a de minimis amount of assets that are not Qualifying Assets purchased in connection with Coal Assets. (ii) It is anticipated that, during the term of the Leases, the Special Member may identify to the MLP opportunities to purchase Coal Assets that are owned by a third party that the MLP is not otherwise considering, and that the Company, in its capacity as the general partner of the MLP, will consider the acquisition of such Coal Assets. To the extent the MLP acquires such Coal Assets, the Company will, to the extent, if any, that the Company and the Special Member so agree, increase the Special Member’s Percentage Interest in consideration of the Special Member identifying such opportunities to the MLP. The determination of whether to acquire such Coal Assets will be made by the Company in the sole discretion of the Board. (c) Notwithstanding anything to the contrary, in no event shall the Special Member’s Percentage Interest exceed 40 percent. (d) The Special Member shall not sell, assign, transfer, convey, pledge, hypothecate, encumber or otherwise dispose of (collectively, a “Transfer”) its Special Member’s Percentage Interest without the prior written consent of the Board; provided, however, that the Special Member shall be entitled, upon prior written notice to the Board, to Transfer some or all of its Special Member’s Percentage Interest to (i) an Affiliate of the Special Member, (ii) to a financial institution in connection with the pledge of such Special Member’s Percentage Interest or (iii) any party in the event that the Company or its Affiliates do not exercise their redemption rights under Section 3.04(h) within 30 days of the happening of an event specified in (i) or (ii) under Section 3.04(h) that gives rise to such redemption right; provided that such transferee agrees to be bound by all of the terms and conditions of this Agreement. (e) Except as provided in Section 9.04, the Special Member’s Percentage Interest shall not entitle the Special Member or any other Person to vote on any matters with respect to the Company or otherwise. (f) The Board shall, from time to time, update Exhibit A hereto to reflect any increase in the Special Member’s Percentage Interest upon a Special Member’s Percentage Increase Event and the applicable IDR Percentage Interest of each Economic the PVR Member upon each such increase. The Board shall provide any such updated versions of Exhibit A to the Special Member promptly upon such updates. (g) Upon each Special Member’s Percentage Increase Event, as a condition to each increase in the Special Member’s Percentage Interest in connection therewith, the Special Member shall execute and deliver to the Company and the Board an Acknowledgement Agreement in the form of Exhibit B hereto. (h) The Special Member’s Percentage Interest may be redeemed by the Company or its Affiliates, in whole but not in part, at the option of the Company, at a redemption price equal to the Fair Market Value of the Special Member’s Percentage Interest (the “Redemption Price”) payable in immediately available funds to an account designated by the Special Member, if either: (i) the Special Member or any of its Affiliates delivers an Acceptance Notice to the MLP or otherwise exercises its rights pursuant to Section 9.1 of the Purchase Agreement; or (ii) there is a Change of Control with respect to the Special Member. The Company shall exercise its redemption option by delivering to the Special Member a written notice (the “Redemption Notice”), in the case of (i) within ten Days after the MLP’s receipt of the Acceptance Notice, and, in the case of (ii) within twenty days of the Change of Control of the Special Member, in each case specifying the Company’s election to redeem the Special Member’s Percentage Interest. If the Company exercises its redemption option hereunder, the closing of the transaction shall take place, in the case of (i) contemporaneously with, and shall be conditioned upon, the closing of the transaction contemplated by Section 9.1 of the Purchase Agreement unless extended for the determination of Fair Market Value and in such case, five days after the determination, and, in the case of (ii) within five (5) days after the determination of Fair Market Value unless extended because of the need to obtain necessary consents or approvals which the appropriate party is using commercially reasonable efforts to obtain. If the Company exercises its redemption option hereunder, the Company and the Special Member shall cooperate in good faith and enter into appropriate agreements, make (or cause to be made) appropriate deliveries and obtain (or cause to be obtained) any necessary consents or approvals, in each case to effect the redemption of the Special Member’s Percentage Interest. (i) Notwithstanding anything to the contrary, the provisions of this Article III with respect to the Special Member’s Percentage Interest shall terminate and the Special Member shall cease to have any rights under Article III, in each case automatically and without any action by any of the parties hereto upon the earlier to occur of: (i) the actual purchase of the Special Member’s Percentage Interest by the Company or its Affiliates upon a redemption pursuant to this Section 3.04 and (ii) if at any time subsequent to the term of the Leases, the Special Member’s Percentage Interest is zero or not outstanding. Upon such termination, the Board shall be entitled to amend or restate this Agreement to make such changes as it deems appropriate to reflect such event. (j) Nothing in this Agreement requires the Special Member to make a capital contribution to the Company.conditioned