Common use of Fixed Charges Clause in Contracts

Fixed Charges. the sum of (a) Net Interest Expense, (b) regularly scheduled principal payments on funded Debt paid or payable currently in cash for such period (other than payments made by the Borrowers and their Restricted Subsidiaries to the Borrowers and their Subsidiaries), and (c) Restricted Payments made under clauses (b), (c), (d), (h)(iv) (only to the extent the Borrowers would have relied on the Payment Conditions to make such Investment) and (j) of the definition of “Permitted Restricted Payments” (but excluding any Restricted Payments that are otherwise consolidated) made in cash during any fiscal period. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Acquisition is consummated, there shall be included in Fixed Charges (without duplication) as if such Permitted Acquisition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Acquired Entity or Business (but not including the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a Pro Forma Basis. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Asset Disposition is consummated, there shall be excluded in Fixed Charges (without duplication) as if such Permitted Asset Disposition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Disposed Entity or Business (but not excluding the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Disposed Entity or Business for such period (including the portion thereof occurring prior to such disposition) determined on a Pro Forma Basis. FLSA: the Fair Labor Standards Act of 1938. Flood Insurance Laws: collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

Fixed Charges. the sum of (a) Net Interest Expense, (b) regularly scheduled principal payments on funded Debt paid or payable currently in cash for such period (other than payments made by the Borrowers and their Restricted Subsidiaries to the Borrowers and their Subsidiaries), and (c) Restricted Payments made under clauses (b), (c), (d), (h)(iv) (only to the extent the Borrowers would have relied on the Payment Conditions to make such Investment) and (j) of the definition of “Permitted Restricted Payments” (but excluding any Restricted Payments that are otherwise consolidated) made in cash during any fiscal period. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Acquisition is consummated, there shall be included in Fixed Charges (without duplication) as if such Permitted Acquisition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Acquired Entity or Business (but not including the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a Pro Forma Basis. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Asset Disposition is consummated, there shall be excluded in Fixed Charges (without duplication) as if such Permitted Asset Disposition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Disposed Entity or Business (but not excluding the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Disposed Entity or Business for such period (including the portion thereof occurring prior to such disposition) determined on a Pro Forma Basis. FLSA: the Fair Labor Standards Act of 1938. Flood Insurance LawsFourth Amendment & Restatement Lead Arranger: collectivelyBank of America, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.N.A.

Fixed Charges. Fixed Charges shall mean, for any period of determination, the sum of (a) Net Interest Expenseeach of the following, (b) regularly scheduled principal payments on funded Debt paid or payable currently in cash for such period (other than payments made by the Borrowers and their Restricted Subsidiaries to the Borrowers and their Subsidiaries), and (c) Restricted Payments made under clauses (b), (c), (d), (h)(iv) (only to the extent the Borrowers would have relied on the Payment Conditions to make such Investment) and (j) of the definition of “Permitted Restricted Payments” (but excluding any Restricted Payments that are otherwise consolidated) made actually paid in cash during any such fiscal period. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Acquisition is consummated, there shall be included in Fixed Charges (without duplication) as if such Permitted Acquisition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Acquired Entity or Business (but not including the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a Pro Forma Basis. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Asset Disposition is consummated, there shall be excluded in Fixed Charges (without duplication) as if such Permitted Asset Disposition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Disposed Entity or Business (but not excluding the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Disposed Entity or Business for such period (including the portion thereof occurring prior to such disposition) determined on a Pro Forma Basis. FLSA: the Fair Labor Standards Act of 1938. Flood Insurance Laws: collectively, (i) National Flood Insurance Reform Act income taxes (excluding taxes related to repatriation of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 foreign cash and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute theretotaxes related to non-ordinary course asset sales), (ii) the Flood Insurance Reform Act of 2004 as now required principal payments on Indebtedness (without giving effect to any voluntary or hereafter in effect or any successor statute thereto and mandatory prepayments), (iii) required capital lease payments, (iv) dividends and redemptions, (v) capital expenditures and (vi) interest paid. Gross Leverage Ratio shall mean, as of the Xxxxxxx-Xxxxxx Flood Insurance Reform Act end of 2012 as now or hereafter any date of determination, the ratio of (i) Consolidated Indebtedness to (ii) Consolidated EBITDA for the four (4) consecutive fiscal quarters then ending. Maturity Date shall mean, with respect to the Term Loans, March 13, 2020. Net Cash Proceeds shall mean (a) in effect connection with any asset sale or any successor statute theretoRecovery Event, the proceeds thereof in the form of cash and cash equivalents (including any such proceeds actually received from deferred payments of principal pursuant to a note, a receivable or otherwise), net of attorneys’ fees, accountants’ fees, investment banking fees, amounts required to be reserved for indemnification, adjustment of purchase price or similar obligations pursuant to the agreements governing such asset sale, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of such asset sale or Recovery Event (other than any Lien pursuant to a Collateral Document) and other customary fees and expenses actually incurred in connection therewith and net of taxes paid (after taking into account any available tax credits or deductions and any tax sharing arrangements) and (b) in connection with any equity issuance or sale or any incurrence of Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith and net of taxes paid (after taking into account any available tax credits or deductions and any tax sharing arrangements).

Fixed Charges. the sum of (1) cash interest paid or scheduled to be paid (other than cash premiums paid in connection with extinguishing the Senior Notes Refinancing Debt to the extent such premiums are substantially contemporaneously funded with the proceeds of new Debt permitted to be incurred hereunder and such premiums constitute interest expense), (2) principal payments made or scheduled to be made on Consolidated Borrowed Money (other than (i) repayments of the Revolver Loans, (ii) voluntary prepayments (which for clarification shall not include any scheduled or mandatory prepayments) made if, as applicable, the Borrowers are permitted to make such prepayments under Section 10.2.8 hereof and the Parent is permitted to make such prepayments under Section 5.2(g) of the Guaranty and Security Agreement, (iii) (a) Net Interest Expense“Excess Cash Flow” (as such term is defined in the Term Loan B Agreement on the Term Loan B Closing Date, which definition shall be satisfactory to the Agent) payments, in an amount not to exceed 50% of “Excess Cash Flow” for any fiscal year and (b) regularly scheduled principal payments mandatory prepayments due on funded Debt paid account of the sale or payable currently other disposition of assets constituting Second Lien Collateral (provided that such sale or disposition of assets is also permitted by this Agreement) or due on account of casualty insurance proceeds received in cash for such period respect of Second Lien Collateral, (other than iv) payments made by to extinguish the Borrowers and their Restricted Subsidiaries Senior Notes Refinancing Debt solely to the Borrowers and their Subsidiaries), extent such Debt is refinanced on a dollar-for-dollar basis with the proceeds of the Term Loan B Debt and (cv) Restricted Payments payments made to extinguish the Term Loan B Debt solely to the extent such Debt is refinanced on a dollar-for-dollar basis with the proceeds of the Convertible Notes or other Debt permitted to be incurred under clauses (bthe Loan Documents and the Term Loan B Documents), (c), (d), (h)(iv3) (only to the extent the Borrowers would have relied on the Payment Conditions to make such Investment) Distributions made and (j4) of earn-out obligations, working capital adjustments, purchase price and similar adjustments and indemnification obligations under any agreements entered into in connection with any Permitted Acquisition. Capitalized terms used in this definition and not otherwise defined in this Agreement shall have the definition of “Permitted Restricted Payments” (but excluding any Restricted Payments that are otherwise consolidated) made meanings provided in cash during any fiscal period. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Acquisition is consummated, there shall be included in Fixed Charges (without duplication) as if such Permitted Acquisition had been consummated as of the first day of such period, the Net Interest Expense Guaranty and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Acquired Entity or Business (but not including the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a Pro Forma Basis. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Asset Disposition is consummated, there shall be excluded in Fixed Charges (without duplication) as if such Permitted Asset Disposition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Disposed Entity or Business (but not excluding the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Disposed Entity or Business for such period (including the portion thereof occurring prior to such disposition) determined on a Pro Forma BasisSecurity Agreement. FLSA: the Fair Labor Standards Act of 1938. Flood Insurance LawsFly Ash Commission Reserve: collectivelyas of any date of determination, an amount equal to (ia) National Flood Insurance Reform Act $2,000,000 plus (b) the amount of 1994 (which comprehensively revised all commissions owing by any Borrower on account of any fly ash products sold by any Borrower that are unpaid for more than 45 days after the National Flood Insurance Act original due date. Foreign Lender: any Lender that is organized under the laws of 1968 and a jurisdiction other than the Flood Disaster Protection Act laws of 1973) as now or hereafter in effect the United States, or any successor statute thereto, state or district thereof. Foreign Plan: any employee benefit plan or arrangement (iia) maintained or contributed to by any Obligor or Subsidiary that is not subject to the Flood Insurance Reform Act laws of 2004 as now the United States; or hereafter in effect (b) mandated by a government other than the United States for employees of any Obligor or any successor statute thereto and (iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute theretoSubsidiary.

Fixed Charges. Interest Expense Rent Expense (Store Locations) Current Maturities of Long Term Debt Current Maturities of Capital Leases Total Fixed Charges $ {00180721.DOC 4} EXHIBIT H [INTENTIONALLY OMITTED] {00180721.DOC 4} EXHIBIT I Form of Borrowing Notice To: U.S. Bank National Association 000 00xx Xxxxxx, 0xx Xxxxx Xxxxxx, XX 00000 Attn: Fax: Reference is hereby made to the sum Amended and Restated Revolving Credit and Security Agreement dated as of September 23, 2005 (athe "Agreement") Net between SSI Venture LLC, a Colorado limited liability company (the "Borrower"), and U.S. Bank National Association ("Lender"). Capitalized terms used but not defined herein shall have the respective meanings therefor set forth in the Agreement. Borrower, through its Authorized Representative, hereby gives notice to the Lender that an Advance of the type and in the amount set forth below be made on the date indicated: Type of Loan Facility Interest ExpensePeriod(1) Aggregate Amount(2) Date of Loan(3) Daily Reset LIBOR One Month, (b) regularly scheduled principal payments on funded Debt paid Rate Advance Reset Daily Base Rate Advance n/a LIBOR Rate Advance For any LIBOR Rate Advance other than a Daily Reset LIBOR Rate Advance, 1, 2, 3, or payable currently in cash for such period 6 months, not to exceed the Revolving Credit Maturity Date. LIBOR Rate Advance (other than payments a Daily Reset LIBOR Rate Advance under the Working Capital Revolving Line of Credit): Must be at least $500,000 and in multiples of $50,000 Any Base Rate Advance or a Daily Reset LIBOR Rate Advance under the Working Capital Revolving Line of Credit: N/A At least three (3) Business Days later than the date of this Notice if a LIBOR Rate Advance (including a Daily Reset LIBOR Rate Advance). Borrower, through its Authorized Representative, hereby gives notice to the Lender that Borrower desires to convert $ of the presently outstanding Base Rate Advances under the Facility (comprised of the Advances distributed or converted on the following dates: ) to LIBOR Rate Advances. The Interest Period for the new {00180721_DOC 41 LIBOR Rate Advance is requested to be 1, 2, 3, or 6 months (not to exceed the Revolving Credit Maturity Date). Borrower, through its Authorized Representative, hereby gives notice to the Lender that Borrower desires to continue as a LIBOR Rate Advance $ of presently outstanding LIBOR Rate Advances under the Facility which have an Interest Period expiration date of . The Interest Period for the new LIBOR Rate Advance is requested to be 1, 2, 3, or 6 months (not to exceed the Revolving Credit Maturity Date). Borrower, through its Authorized Representative, hereby gives notice to the Lender that Borrower desires to convert a presently outstanding LIBOR Rate Advance under the Facility in the amount of $ , upon its maturity on , 20 , to a Base Rate Advance. Complete if applicable: This notice constitutes a written confirmation of a telephonic request made by the Borrowers and their Restricted Subsidiaries to the Borrowers and their Subsidiarieson as required by Section 2.1(c), and (c2.2(c) Restricted Payments made under clauses (b), (c), (d), (h)(iv) (only to the extent the Borrowers would have relied on the Payment Conditions to make such Investment) and (jor 2.3(c) of the definition Agreement, as applicable. The undersigned hereby certifies that: No Default or Event of “Permitted Restricted Payments” Default either exists now or will exist after giving effect to the borrowing described herein; and All the representations and warranties set forth in Article VI of the Agreement and elsewhere in the Transaction Documents (but excluding any Restricted Payments that other than those expressly stated to refer to a particular date) are otherwise consolidated) made true and correct in cash during any fiscal period. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Acquisition is consummated, there shall be included in Fixed Charges (without duplication) as if such Permitted Acquisition had been consummated all respects as of the first day of such period, date hereof. All conditions contained in the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) Agreement to the making of any Acquired Entity Advance requested hereby have been met or Business satisfied in full. SSI VENTURE LLC By: The Gart Companies, Inc., its manager By: Name: Xxxxxx X. Xxxx Title: President DATE: {00180721.DOC 4} EXHIBIT J BORROWING BASE CERTIFICATE As of the Period Ending This Certificate is submitted in connection with the Amended and Restated Revolving Credit and Security Agreement dated as of September 23, 2005, as it may be amended from time to time (but not including the Net Interest Expense or Debt for borrowed money (other than revolving loans"Agreement") of any related Personbetween the Lender and Borrower. The undersigned hereby certifies to Lender that the undersigned is familiar with the following financial information, propertywhich has been taken from Borrower's books and records, business or assets to which are complete and accurate, and the extent not so acquired), based following calculations on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a Pro Forma Basis. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Asset Disposition is consummated, there shall be excluded in Fixed Charges (without duplication) as if such Permitted Asset Disposition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Disposed Entity or Business (but not excluding the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Disposed Entity or Business for such period (including the portion thereof occurring prior to such disposition) determined on a Pro Forma Basis. FLSA: the Fair Labor Standards Act of 1938. Flood Insurance Laws: collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 Borrowing Base and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) remaining amount under the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto Borrowing Base are true and (iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.correct. BORROWING BASE

Fixed Charges. the sum of cash interest paid or scheduled to be paid (other than cash premiums paid in connection with extinguishing (x) the Debt evidenced by the Senior Secured Notes Documents to the extent such premiums constitute interest expense, or (y) the Debt evidenced by the 2.5% Notes or the 2012 Senior Notes Debt to the extent such premiums are substantially contemporaneously funded with the proceeds of new Debt permitted to be incurred hereunder and such premiums constitute interest expense), principal payments made or scheduled to be made on Consolidated Borrowed Money (other than (i) repayments of the Revolver Loans, (ii) payments made to extinguish the Debt evidenced by the Senior Secured Notes Documents solely to the extent such Debt is replaced or refinanced on a dollar-for-dollar basis with Senior Notes Refinancing Debt, (iii) payments made to extinguish the Debt evidenced by the 2.5% Notes solely to the extent such Debt is replaced or refinanced on a dollar-for-dollar basis with the 2012 Convertible Notes or the 2012 Senior Notes Debt, (iv) payments made to extinguish the Debt evidenced by the 2012 Senior Notes Debt solely to the extent such Debt is replaced or refinanced on a dollar-for-dollar basis with Refinancing Debt, (v) payments made to extinguish the Debt evidenced by the Convertible Subordinated Notes in an amount not to exceed the amount of any proceeds received by (a) Net Interest ExpenseEnergy Services or its Subsidiaries (as defined in the Guaranty and Security Agreement) from the Coal Cleaning Disposition or any Partial Coal Cleaning Disposition, and (b) regularly Headwaters Ethanol Holdings LLC, a Utah limited liability company, from a sale of its membership interests in Blue Flint Ethanol LLC, a Delaware limited liability company, in each case, solely to the extent such payments are made within six (6) months after receipt of any such proceeds, and (vi) voluntary prepayments (which for clarification shall not include any scheduled principal payments or mandatory prepayments) made if (a) Excess Availability is greater than an amount equal to 25% of the aggregate Revolver Commitments at all times for the sixty (60) days prior to such prepayment (on funded Debt paid or payable currently in cash for a pro forma basis) and immediately after giving effect to such period prepayment, and (other than payments made by b) the Borrowers and their Restricted Subsidiaries believe in good faith that Excess Availability shall be greater than an amount equal to 25% of the Borrowers and their Subsidiariesaggregate Revolver Commitments on a pro forma basis at all times for the sixty (60) days following such prepayment), and (c) Restricted Payments made under clauses (b), (c), (d), (h)(iv) (only to Distributions made. Capitalized terms used in this definition and not otherwise defined in this Agreement shall have the extent meanings provided in the Borrowers would have relied on the Payment Conditions to make such Investment) Guaranty and (j) of the definition of “Permitted Restricted Payments” (but excluding any Restricted Payments that are otherwise consolidated) made in cash during any fiscal period. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Acquisition is consummated, there shall be included in Fixed Charges (without duplication) as if such Permitted Acquisition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Acquired Entity or Business (but not including the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a Pro Forma Basis. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Asset Disposition is consummated, there shall be excluded in Fixed Charges (without duplication) as if such Permitted Asset Disposition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Disposed Entity or Business (but not excluding the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Disposed Entity or Business for such period (including the portion thereof occurring prior to such disposition) determined on a Pro Forma BasisSecurity Agreement. FLSA: the Fair Labor Standards Act of 1938. Flood Insurance LawsFly Ash Commission Reserve: collectivelyas of any date of determination, an amount equal to (ia) National Flood Insurance Reform Act $2,000,000 plus (b) the amount of 1994 (which comprehensively revised all commissions owing by any Borrower on account of any fly ash products sold by any Borrower that are unpaid for more than 45 days after the National Flood Insurance Act original due date. Foreign Lender: any Lender that is organized under the laws of 1968 and a jurisdiction other than the Flood Disaster Protection Act laws of 1973) as now or hereafter in effect the United States, or any successor statute thereto, state or district thereof. Foreign Plan: any employee benefit plan or arrangement (iia) maintained or contributed to by any Obligor or Subsidiary that is not subject to the Flood Insurance Reform Act laws of 2004 as now the United States; or hereafter in effect (b) mandated by a government other than the United States for employees of any Obligor or any successor statute thereto and (iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute theretoSubsidiary.

Fixed Charges. Fixed Charges — for any period and without duplication, the sum of (a) Net Consolidated Interest ExpenseCharges (other than payment-in-kind interest), plus (b) regularly scheduled the sum, for the Consolidated Parties on a consolidated basis, of principal payments on funded Debt Borrowed Money scheduled to be paid or payable currently in cash for during such period, voluntary prepayments of principal on Borrowed Money (other than Indebtedness under this Agreement) paid during such period and mandatory prepayments of principal paid during such period (other than principal payments made with the proceeds of a substantially contemporaneous Equity Issuance, incurrence of Indebtedness (other than Indebtedness under this Agreement) or Disposition of assets other than Collateral not prohibited by the Borrowers and their Restricted Subsidiaries to the Borrowers and their Subsidiaries), and terms of this Agreement) plus (c) any dividends, distributions or other Restricted Payments made under clauses (bother than Restricted Payments permitted pursuant to Section 10.2.6(b), (cSection 10.2.6(c) and Section 10.2.6(d)(v), (d), (h)(iv) (but only to the extent that such Restricted Payments do not involve a payment in cash) made by the Borrowers would have relied on the Payment Conditions to make such Investment) and (j) MLP Parent or any other Obligor or Subsidiary of the definition of “Permitted Restricted Payments” (but excluding any Restricted Payments that are otherwise consolidated) made in cash during any fiscal period. For purposes of computing MLP Parent to the Fixed Charge Coverage Ratio test for any fiscal period during which holders or a Permitted Acquisition is consummated, there shall be included in Fixed Charges (without duplication) as if such Permitted Acquisition had been consummated as holder of the first day Equity Interests of the MLP Parent during such period, plus (d) the Net Interest Expense sum of all management fees and scheduled principal payments paid consulting fees made by any Consolidated Party to any Existing Partner or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Acquired Entity or Business (but Affiliate which is not including the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a Pro Forma Basis. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period Consolidated Party during which a Permitted Asset Disposition is consummated, there shall be excluded in Fixed Charges (without duplication) as if such Permitted Asset Disposition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans(i) any such payment made for reimbursement of Consolidated Party expenses which is otherwise included in the calculation of Consolidated Net Income, or (ii) other such payments otherwise included in the calculation of Consolidated Net Income, plus (e) the aggregate amount of any Disposed Entity or Business (but not excluding prepayment premiums paid by the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Disposed Entity or Business for Consolidated Parties during such period (including in connection with the portion thereof occurring prior to such disposition) determined on a Pro Forma Basisrepayment of Indebtedness. FLSA: FLSA — the Fair Labor Standards Act of 1938. Flood Insurance Laws: collectivelyForeign Lender — any Lender that is organized under the laws of a jurisdiction other than that in which the Borrowers are resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction. Foreign Subsidiary — a Subsidiary that is organized under the laws of a jurisdiction other than the United States, any State thereof or the District of Columbia. Full Payment — with respect to any Obligations, (a) the full and indefeasible cash payment thereof, including any interest, fees and other charges accruing during any proceeding under any Debtor Relief Law (whether or not allowed in the proceeding); (b) if such Obligations are LC Obligations or inchoate or contingent in nature (other than unasserted contingent indemnification obligations, if any, as to which no claim has been made and as to which Agent, in its good faith, believes that no claim will be made), Cash Collateralization thereof; and (c) a release of any Claims of Obligors against Agent, Lenders and Issuing Bank arising on or before the payment date. No Loans shall be deemed to have been paid in full until all Commitments related to such Loans have expired or been terminated. GAAP — generally accepted accounting principles in effect in the United States from time to time. General Intangibles — as defined in the UCC, including choses in action, causes of action, company or other business records, inventions, blueprints, designs, patents, patent applications, trademarks, trademark applications, trade names, trade secrets, service marks, goodwill, brand names, copyrights, registrations, licenses, franchises, customer lists, permits, tax refund claims, computer programs, operational manuals, internet addresses and domain names, insurance refunds and premium rebates, all rights to indemnification, and all other intangible Property of any kind. General Partner — CLP. General Revolver Loan — a Revolver Loan made pursuant to Section 2.1.2 other than a Distribution Revolver Loan. Governmental Approvals — all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and required reports to, all Governmental Authorities. Governmental Authority — the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank). Guarantee — as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) National Flood Insurance Reform Act of 1994 to purchase or pay (which comprehensively revised or advance or supply funds for the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973purchase or payment of) as now such Indebtedness or hereafter in effect or any successor statute theretoother obligation, (ii) to purchase or lease Property, securities or services for the Flood Insurance Reform Act purpose of 2004 as now assuring the obligee in respect of such Indebtedness or hereafter in effect other obligation of the payment or any successor statute thereto and performance of such Indebtedness or other obligation, (iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect to maintain working capital, equity capital or any successor statute theretoother financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning. Guarantor — each Person who guarantees payment or performance of any Obligations. Guarantor Payment — as defined in Section 5.11.3.

Fixed Charges. the sum of cash interest paid or scheduled to be paid (other than cash premiums paid in connection with extinguishing (x) the Debt evidenced by the Senior Secured Notes Documents to the extent such premiums constitute interest expense, or (y) the Debt evidenced by the 2.5% Notes or the 2012 Senior Notes Debt to the extent such premiums are substantially contemporaneously funded with the proceeds of new Debt permitted to be incurred hereunder and such premiums constitute interest expense), principal payments made or scheduled to be made on Consolidated Borrowed Money (other than (i) repayments of the Revolver Loans, (ii) payments made to extinguish the Debt evidenced by the Senior Secured Notes Documents solely to the extent such Debt is replaced or refinanced on a dollar-for-dollar basis with Senior Notes Refinancing Debt, (iii) payments made to extinguish the Debt evidenced by the 2.5% Notes solely to the extent such Debt is replaced or refinanced on a dollar-for-dollar basis with the 2012 Convertible Notes or the 2012 Senior Notes Debt, (iv) payments made to extinguish the Debt evidenced by the 2012 Senior Notes Debt solely to the extent such Debt is replaced or refinanced on a dollar-for-dollar basis with Refinancing Debt, and (v) payments made to extinguish the Debt evidenced by the Convertible Subordinated Notes in an amount not to exceed the amount of any proceeds received by (a) Net Interest ExpenseEnergy Services or its Subsidiaries (as defined in the Guaranty and Security Agreement) from the Coal Cleaning Disposition or any Partial Coal Cleaning Disposition, and (b) regularly Headwaters Ethanol Holdings LLC, a Utah limited liability company, from a sale of its membership interests in Blue Flint Ethanol LLC, a Delaware limited liability company, in each case, solely to the extent such payments are made within six (6) months after receipt of any such proceeds, and (vi) voluntary prepayments (which for clarification shall not include any scheduled principal payments or mandatory prepayments) made if (a) Excess Availability is greater than an amount equal to 25% of the aggregate Revolver Commitments at all times for the sixty (60) days prior to such prepayment (on funded Debt paid or payable currently in cash for a pro forma basis) and immediately after giving effect to such period prepayment, and (other than payments made by b) the Borrowers and their Restricted Subsidiaries believe in good faith that Excess Availability shall be greater than an amount equal to 25% of the Borrowers and their Subsidiariesaggregate Revolver Commitments on a pro forma basis at all times for the sixty (60) days following such prepayment), and (c) Restricted Payments made under clauses (b), (c), (d), (h)(iv) (only to Distributions made. Capitalized terms used in this definition and not otherwise defined in this Agreement shall have the extent meanings provided in the Borrowers would have relied on the Payment Conditions to make such Investment) Guaranty and (j) of the definition of “Permitted Restricted Payments” (but excluding any Restricted Payments that are otherwise consolidated) made in cash during any fiscal period. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Acquisition is consummated, there shall be included in Fixed Charges (without duplication) as if such Permitted Acquisition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Acquired Entity or Business (but not including the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a Pro Forma Basis. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period during which a Permitted Asset Disposition is consummated, there shall be excluded in Fixed Charges (without duplication) as if such Permitted Asset Disposition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Disposed Entity or Business (but not excluding the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Disposed Entity or Business for such period (including the portion thereof occurring prior to such disposition) determined on a Pro Forma BasisSecurity Agreement. FLSA: the Fair Labor Standards Act of 1938. Flood Insurance LawsFly Ash Commission Reserve: collectivelyas of any date of determination, an amount equal to (ia) National Flood Insurance Reform Act $2,000,000 plus (b) the amount of 1994 (which comprehensively revised all commissions owing by any Borrower on account of any fly ash products sold by any Borrower that are unpaid for more than 45 days after the National Flood Insurance Act original due date. Foreign Lender: any Lender that is organized under the laws of 1968 and a jurisdiction other than the Flood Disaster Protection Act laws of 1973) as now or hereafter in effect the United States, or any successor statute thereto, state or district thereof. Foreign Plan: any employee benefit plan or arrangement (iia) maintained or contributed to by any Obligor or Subsidiary that is not subject to the Flood Insurance Reform Act laws of 2004 as now the United States; or hereafter in effect (b) mandated by a government other than the United States for employees of any Obligor or any successor statute thereto and (iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute theretoSubsidiary.

Fixed Charges. Fixed Charges — for any period and without duplication, the sum of (a) Net Consolidated Interest ExpenseCharges (other than payment-in-kind interest), plus (b) regularly scheduled the sum, for the Consolidated Parties on a consolidated basis, of principal payments on funded Debt Borrowed Money scheduled to be paid or payable currently in cash for during such period, voluntary prepayments of principal on Borrowed Money (other than Indebtedness under this Agreement) paid during such period and mandatory prepayments of principal paid during such period (other than principal payments made with the proceeds of a substantially contemporaneous Equity Issuance, incurrence of Indebtedness (other than Indebtedness under this Agreement) or Disposition of assets other than Collateral not prohibited by the Borrowers and their Restricted Subsidiaries to the Borrowers and their Subsidiaries), and terms of this Agreement) plus (c) any dividends, distributions or other Restricted Payments made under clauses (bother than Restricted Payments permitted pursuant to Section 10.2.6(b), (cSection 10.2.6(c) and Section 10.2.6(d)(v), (d), (h)(iv) (but only to the extent that such Restricted Payments do not involve a payment in cash) made by the Borrowers would have relied on the Payment Conditions to make such Investment) and (j) MLP Parent or any other Obligor or Subsidiary of the definition of “Permitted Restricted Payments” (but excluding any Restricted Payments that are otherwise consolidated) made in cash during any fiscal period. For purposes of computing MLP Parent to the Fixed Charge Coverage Ratio test for any fiscal period during which holders or a Permitted Acquisition is consummated, there shall be included in Fixed Charges (without duplication) as if such Permitted Acquisition had been consummated as holder of the first day Equity Interests of the MLP Parent during such period, plus (d) the Net Interest Expense sum of all management fees and scheduled principal payments paid consulting fees made by any Consolidated Party to any Existing Partner or payable currently in cash on Debt for borrowed money (other than revolving loans) of any Acquired Entity or Business (but Affiliate which is not including the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a Pro Forma Basis. For purposes of computing the Fixed Charge Coverage Ratio test for any fiscal period Consolidated Party during which a Permitted Asset Disposition is consummated, there shall be excluded in Fixed Charges (without duplication) as if such Permitted Asset Disposition had been consummated as of the first day of such period, the Net Interest Expense and scheduled principal payments paid or payable currently in cash on Debt for borrowed money (other than revolving loans(i) any such payment made for reimbursement of Consolidated Party expenses which is otherwise included in the calculation of Consolidated Net Income, or (ii) other such payments otherwise included in the calculation of Consolidated Net Income, plus (e) the aggregate amount of any Disposed Entity or Business (but not excluding prepayment premiums paid by the Net Interest Expense or Debt for borrowed money (other than revolving loans) of any related Person, property, business or assets to the extent not so acquired), based on the Net Interest Expense and Debt for borrowed money (other than revolving loans) of such Disposed Entity or Business for Consolidated Parties during such period (including in connection with the portion thereof occurring prior to such disposition) determined on a Pro Forma Basisrepayment of Indebtedness. FLSA: FLSA — the Fair Labor Standards Act of 1938. Flood Insurance Laws: collectivelyForeign Lender — any Lender that is organized under the laws of a jurisdiction other than that in which the Borrowers are resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction. Foreign Subsidiary — a Subsidiary that is organized under the laws of a jurisdiction other than the United States, any State thereof or the District of Columbia. Full Payment — with respect to any Obligations, (a) the full and indefeasible cash payment thereof, including any interest, fees and other charges accruing during any proceeding under any Debtor Relief Law (whether or not allowed in the proceeding); (b) if such Obligations are LC Obligations or inchoate or contingent in nature (other than unasserted contingent indemnification obligations, if any, as to which no claim has been made and as to which Agent, in its good faith, believes that no claim will be made), Cash Collateralization thereof; and (c) a release of any Claims of Obligors against Agent, Lenders and Issuing Bank arising on or before the payment date. No Loans shall be deemed to have been paid in full until all Commitments related to such Loans have expired or been terminated. GAAP — generally accepted accounting principles in effect in the United States from time to time. General Intangibles — as defined in the UCC, including choses in action, causes of action, company or other business records, inventions, blueprints, designs, patents, patent applications, trademarks, trademark applications, trade names, trade secrets, service marks, goodwill, brand names, copyrights, registrations, licenses, franchises, customer lists, permits, tax refund claims, computer programs, operational manuals, internet addresses and domain names, insurance refunds and premium rebates, all rights to indemnification, and all other intangible Property of any kind. General Partner — CLP. General Revolver Loan — a Revolver Loan made pursuant to Section 2.1.2 other than a Distribution Revolver Loan. Governmental Approvals — all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and required reports to, all Governmental Authorities. Governmental Authority — the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank). Guarantee — as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) National Flood Insurance Reform Act of 1994 to purchase or pay (which comprehensively revised or advance or supply funds for the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973purchase or payment of) as now such Indebtedness or hereafter in effect or any successor statute theretoother obligation, (ii) to purchase or lease Property, securities or services for the Flood Insurance Reform Act purpose of 2004 as now assuring the obligee in respect of such Indebtedness or hereafter in effect other obligation of the payment or any successor statute thereto and (iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act performance of 2012 as now such Indebtedness or hereafter in effect or any successor statute thereto.other obligation,