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Section 1: 8-K (8-K)

0001086600falseALLIANCE RESOURCE PARTNERS LP00010866002020-03-092020-03-09

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 8-K

CURRENT REPORT PURSUANT TO

SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of report (Date of earliest event reported): March 9, 2020

ALLIANCE RESOURCE PARTNERS, L.P.

(Exact name of registrant as specified in its charter)

Delaware

73-1564280

(State or other jurisdiction of
incorporation or organization)

Commission
File No.: 0-26823

(IRS Employer
Identification No.)

1717 South Boulder Avenue, Suite 400, Tulsa, Oklahoma 74119

(Address of principal executive offices and zip code)

(918) 295-7600

(Registrant’s telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:

    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class

Trading Symbol(s)

Name of each exchange on which registered

Common Units

ARLP

The NASDAQ Stock Market LLC

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

ITEM 1.01Entry into a Material Definitive Agreement

Credit Agreement

On March 9, 2020, Alliance Resource Partners, L.P. (the "Partnership") and its wholly-owned subsidiary Alliance Resource Operating Partners, L.P. (the "Intermediate Partnership") entered into a Fifth Amended and Restated Credit Agreement (the "Credit Agreement") with various financial institutions, including JPMorgan Chase Bank, N.A. as administrative agent (the "Administrative Agent").  The Credit Agreement provides for a $537.75 million revolving credit facility, reducing to $459.5 million on May 23, 2021, including a sublimit of $125 million for the issuance of letters of credit and a sublimit of $15.0 million for swingline borrowings (the "Revolving Credit Facility"), with a termination date of March 9, 2024, at which time the aggregate outstanding principal amount of all Revolving Credit Facility advances are required to be repaid in full.  The Credit Facility replaces the $494.75 million revolving credit facility  extended to the Intermediate Partnership under its Fourth Amended and Restated Credit Agreement, dated as of January 27, 2017, by various banks and other lenders, including JPMorgan Chase Bank, N.A. as administrative agent, that would have expired on May 23, 2021.    

The Credit Agreement is guaranteed by the Partnership and certain of the Intermediate Partnership's material direct and indirect subsidiaries (the "Subsidiary Guarantors") and is secured by substantially all of the assets of the Subsidiary Guarantors, with some exceptions.  The Credit Agreement is not secured by the assets of the Partnership's or the Intermediate Partnership's oil & gas subsidiaries, Alliance Minerals, LLC and Alliance Royalty, LLC, or their direct and indirect subsidiaries, collectively the "Unrestricted Subsidiaries".  Borrowings under the Revolving Credit Facility bear interest, at our option, at either (i) the Base Rate at the greater of three benchmarks or (ii) a Eurodollar Rate, plus margins for (i) or (ii), as applicable, that fluctuate depending upon the ratio of Consolidated Debt to Consolidated Cash Flow (each as defined in the Credit Agreement).  

The applicable margin for Revolving Credit Facility Advances is determined by reference to the Consolidated Debt to Consolidated Cash Flow Ratio (as such term is defined in the Credit Agreement) of the Intermediate Partnership as set forth below:

Consolidated Debt to Consolidated Cash Flow Ratio

Base Rate Advances

Eurodollar Rate Advances

Level I

1.50:1.0 or greater

1.850%

2.850%

Level II

1.00:1.0 or greater,

but less than 1.50:1.0

1.600%

2.600%

Level III

0.50:1.0 or greater,

but less than 1.00:1.0

1.350%

2.350%

Level IV

less than 0.50:1.0

1.000%

2.000%

The Credit Agreement also provides for other fees, including an annual commitment fee of 0.35% on the undrawn portion of the Revolving Credit Facility and a fee with respect to the available amount under outstanding letters of credit.

The Credit Agreement contains various restrictions affecting the Intermediate Partnership and its material subsidiaries that are not Unrestricted Subsidiaries (the “Restricted Subsidiaries”), including, among other things, restrictions on incurrence of additional indebtedness and liens, sale of assets, investments, mergers and consolidations and transactions with affiliates including value transfers to Unrestricted Subsidiaries.  In each case, these restrictions are subject to various exceptions. In addition, the restrictions apply to the payment of cash distributions if such payment would result in a certain fixed charge coverage ratio (as defined in the Credit Agreement).  The Credit Agreement requires us to maintain (a) a debt to cash flow ratio of not more than 2.5 to 1.0, (b) a cash flow to interest expense ratio of not less than 3.0 to 1.0 and (c) a first lien debt to cash flow ratio of not more than 1.5 to 1.0, in each case, during the four most recently ended fiscal quarters.

 

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The Credit Agreement contains customary provisions regarding events of default which, if not cured within any applicable grace periods, would permit the lenders to declare all outstanding advances immediately due and payable, including but not limited to failure to make timely payments of principal of or interest on the outstanding advances, the failure to comply with covenants or representations in the Credit Agreement, cross-defaults with certain other indebtedness, upon a "Change of Control" (as defined in the Credit Agreement), certain bankruptcy and insolvency related events, certain monetary judgment defaults, and certain claims arising under environmental laws that if, adversely determined, would be material.

Subject to certain exceptions, each of the Restricted Subsidiaries and Alliance Minerals, LLC is a guarantor of the obligations created under the Credit Agreement pursuant to a Subsidiary Guaranty, dated as of March 9, 2020 (the "Subsidiary Guaranty").  Under the Subsidiary Guaranty, each such subsidiary a party thereto has unconditionally guaranteed payments due under the Credit Agreement, including certain other additional expenses that may be incurred.  Subject to certain exceptions, new domestic subsidiaries of the Intermediate Partnership that are subsequently formed or acquired by the Intermediate Partnership are required to become a party to the Subsidiary Guaranty within a certain period of time.

The foregoing description of the Credit Agreement is a summary only and is qualified in its entirety by reference to the complete text of the Credit Agreement, a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

Item 2.03

Creation of a Direct Financial Obligation

The information included in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03 of this Current Report on Form 8-K.

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ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.

(d) Exhibits

Exhibit
Number

 

Description

10.1

Fifth Amended and Restated Credit Agreement, dated as of March 9, 2020, by and among Alliance Resource Operating Partners, L.P., as borrower, the initial lenders, initial issuing banks and swingline bank named therein, JPMorgan Chase Bank, N.A., as administrative agent, JPMorgan Chase Bank, N.A., Citigroup Global Markets Inc., PNC Bank, National Association, BOKF, NA DBA Bank of Oklahoma and Suntrust Robinson Humphrey, Inc. as joint lead arrangers, JPMorgan Chase Bank, N.A., Citigroup Global Markets Inc., PNC Bank, National Association, BOKF, NA DBA Bank of Oklahoma and Suntrust Robinson Humphrey, Inc. as joint bookrunners, and the other institutions named therein as documentation agents.

104

Cover Page Interactive Data File (formatted as inline XBRL).

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Alliance Resource Partners, L.P.

By:

Alliance Resource Management GP, LLC,

its general partner

By:

/s/ Joseph W. Craft III

Joseph W. Craft III

President, Chief Executive Officer

and Chairman

Date: March 13, 2020

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Section 2: EX-10.1 (EX-10.1)

arlp_Ex10_1

 

Exhibit 10.1

 

EXECUTIVE VERSION

 

FIFTH AMENDED AND RESTATED
CREDIT AGREEMENT

Dated as of March 9, 2020

Among

ALLIANCE RESOURCE OPERATING PARTNERS, L.P.

as Borrower

and

ALLIANCE RESOURCE PARTNERS, L.P.

as Parent

and

THE INITIAL LENDERS, INITIAL ISSUING BANKS AND

SWING LINE BANK NAMED HEREIN

as Initial Lenders,  Initial Issuing Banks and Swing Line Bank

and

JPMORGAN CHASE BANK, N.A.

as Administrative Agent and Collateral Agent

and

JPMORGAN CHASE BANK, N.A.

CITIGROUP GLOBAL MARKETS INC.

PNC BANK, NATIONAL ASSOCIATION

BOKF, NA DBA BANK OF OKLAHOMA

SUNTRUST ROBINSON HUMPHREY, INC.

as Joint Lead Arrangers

and

JPMORGAN CHASE BANK, N.A.

CITIGROUP GLOBAL MARKETS INC.

PNC BANK, NATIONAL ASSOCIATION

BOKF, NA DBA BANK OF OKLAHOMA

SUNTRUST ROBINSON HUMPHREY, INC.

as Joint Bookrunners

and

 

 

 

 

FIFTH THIRD BANK, NATIONAL ASSOCIATION

SUMITOMO MITSUI BANKING CORPORATION

PLANTERS BANK

GOLDMAN SACHS BANK USA

STIFEL BANK & TRUST

CENTRAL BANK

CHANG HWA COMMERCIAL BANK, LTD., LA BRANCH

COMMERCE BANK

MABREY BANK

WELLS FARGO BANK, NATIONAL ASSOCIATION

ARVEST BANK

 

as Documentation Agents

 

 

 

 

 

 

 

Alliance Resource

 

 

Fifth Amended and Restated Credit Agreement

 

 

Table of Contents

 

 

 

 

 

 

Page

ARTICLE I

 

DEFINITIONS AND ACCOUNTING TERMS

 

 

 

 

SECTION 1.01

Certain Defined Terms

5

SECTION 1.02

Computation of Time Periods; Rules of Interpretation; Other Definitional Provisions

52

SECTION 1.03

Accounting Terms; Pro Forma Basis

53

SECTION 1.04

Interest Rates; LIBOR Notification

53

SECTION 1.05

Divisions

54

 

 

 

ARTICLE II

 

AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT

 

 

 

 

SECTION 2.01

The Advances and the Letters of Credit

54

SECTION 2.02

Making the Advances

56

SECTION 2.03

Issuance of and Drawings and Reimbursement Under Letters of Credit

58

SECTION 2.04

Repayment of Advances

60

SECTION 2.05

Termination or Reduction of the Revolving Credit Commitments

62

SECTION 2.06

Prepayments

62

SECTION 2.07

Interest

63

SECTION 2.08

Fees

66

SECTION 2.09

Conversion of Advances

67

SECTION 2.10

Increased Costs, Etc.

68

SECTION 2.11

Payments and Computations

70

SECTION 2.12

Taxes

71

SECTION 2.13

Sharing of Payments, Etc.

74

SECTION 2.14

Use of Proceeds

75

SECTION 2.15

Defaulting Lenders

75

SECTION 2.16

Evidence of Debt

77

SECTION 2.17

Mitigation; Replacement of Lenders

78

 

 

 

ARTICLE III

 

CONDITIONS OF LENDING

 

 

 

 

SECTION 3.01

Conditions Precedent to Amendment and Restatement

79

SECTION 3.02

Conditions Precedent to Each Borrowing and Issuance and Renewal

84

SECTION 3.03

Determinations Under Section 3.01

84

 

 

 

ARTICLE IV

 

REPRESENTATIONS AND WARRANTIES

 

 

 

 

SECTION 4.01

Representations and Warranties

84

 

 

 

 

 

 

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ARTICLE V

 

COVENANTS OF THE BORROWER

 

 

 

SECTION 5.01

Affirmative Covenants

94

SECTION 5.02

Negative Covenants

110

SECTION 5.03

Reporting Requirements

124

SECTION 5.04

Financial Covenants

128

 

 

 

ARTICLE VI

 

EVENTS OF DEFAULT

 

 

 

SECTION 6.01

Events of Default

128

SECTION 6.02

Actions in Respect of the Letters of Credit upon Default

131

SECTION 6.03

Application of Funds

132

 

 

 

ARTICLE VII

 

THE ADMINISTRATIVE AGENT AND COLLATERAL AGENT

 

 

 

SECTION 7.01

Agency Provisions

133

SECTION 7.02

Indemnification

137

SECTION 7.03

Collateral and Guaranty Matters

138

SECTION 7.04

Secured Cash Management Agreements and Secured Hedge Agreements

140

SECTION 7.05

Intercreditor Agreements

140

SECTION 7.06

Credit Bidding

140

SECTION 7.07

Certain ERISA Matters

141

 

 

 

ARTICLE VIII

 

MISCELLANEOUS

 

 

 

SECTION 8.01

Amendments, Etc.

143

SECTION 8.02

Notices, Etc.

143

SECTION 8.03

No Waiver; Remedies

145

SECTION 8.04

Costs and Expenses

145

SECTION 8.05

Right of Set-off

147

SECTION 8.06

Binding Effect

147

SECTION 8.07

Assignments and Participations

147

SECTION 8.08

Execution in Counterparts

151

SECTION 8.09

No Liability of the Issuing Banks

151

SECTION 8.10

Confidentiality

151

SECTION 8.11

Jurisdiction, Etc.

152

SECTION 8.12

Governing Law

153

SECTION 8.13

Non-Recourse to the General Partner and Associated Persons

153

SECTION 8.14

Patriot Act Notice

153

SECTION 8.15

Entire Agreement

153

SECTION 8.16

Waiver of Conflicts; No Fiduciary Duty

154

SECTION 8.17

Acknowledgment and Consent to Bail-In of EEA Financial Institutions

154

SECTION 8.18

Acknowledgement Regarding Any Supported QFCs

155

 

 

 

 

 

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SECTION 8.19

WAIVER OF JURY TRIAL

155

 

 

ARTICLE IX

 

PARENT GUARANTY

 

 

 

SECTION 9.01

Parent Guaranty; Limitation of Liability

156

SECTION 9.02

Guaranty Absolute

157

SECTION 9.03

Waivers and Acknowledgments

158

SECTION 9.04

Subrogation

159

SECTION 9.05

Payments Free and Clear of Taxes, Etc

160

SECTION 9.06

Right of Set-off

161

SECTION 9.07

Indemnification

161

SECTION 9.08

Subordination

162

SECTION 9.09

Continuing Guaranty; Assignments

163

 

 

 

 

 

 

 

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SCHEDULES

Schedule I

-

Commitments

Schedule II

-

Subsidiary Guarantors

Schedule III

-

Existing Letters of Credit

Schedule 1.01(a)

-

Excluded Property

Schedule 1.01(b)

-

Mines and Mining Facilities

Schedule 1.01(c)

-

Mortgaged Property

Schedule 4.01(a)

-

Capital Stock

Schedule 4.01(b)

-

Subsidiaries

Schedule 4.01(d)

-

Authorizations, Approvals, Actions, Notices and Filings

Schedule 4.01(f)

-

Disclosed Litigation

Schedule 4.01(n)

-

Plans and Multiemployer Plans

Schedule 4.01(o)

-

Environmental Disclosure

Schedule 4.01(p)

-

Open Years

Schedule 4.01(r)

-

Existing Debt

Schedule 4.01(s)

-

Surviving Debt

Schedule 4.01(t)

-

Liens

Schedule 4.01(u)

-

Investments

Schedule 5.01(q)

-

Initial Unrestricted Subsidiaries

Schedule 5.02(a)

-

Existing Liens

Schedule 5.02(b)

-

Permitted Surviving Debt

Schedule 5.02(q)

-

Transactions with Affiliates

 

 

 

 

EXHIBITS

 

Exhibit A-1

-

[Reserved]

Exhibit A-2

-

Form of Revolving Credit Note

Exhibit B

-

Form of Notice of Borrowing

Exhibit C

-

Form of Assignment and Assumption

Exhibit D

-

Form of Subsidiary Guaranty

Exhibit E

-

Form of Security Agreement

Exhibit F-1

-

Form of Perfection Certificate

Exhibit F-2

-

Form of Perfection Certificate Supplement

Exhibit G

-

Form of Solvency Certificate

Exhibit H

-

Form of Mortgage

 

 

 

 

 

 

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FIFTH AMENDED AND RESTATED CREDIT AGREEMENT

FIFTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 9, 2020 (this “Agreement”) among (a) ALLIANCE RESOURCE OPERATING PARTNERS, L.P., a Delaware limited partnership (the “Borrower”), ALLIANCE RESOURCE PARTNERS, L.P., a Delaware limited partnership (the “Parent” or “MLP”), (c) the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the Initial Lenders (the “Initial Lenders”), (d) the banks listed on the signature pages hereof as the Initial Issuing Banks (the “Initial Issuing Banks”), (e) the Swing Line Bank, (f) JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as administrative agent (together with any successor administrative agent appointed pursuant to Article VII, the “Administrative Agent”) for the Lenders (as hereinafter defined), (g) JPMORGAN, CITIGROUP GLOBAL MARKETS INC., PNC BANK, NATIONAL ASSOCIATION, BOKF, NA DBA BANK OF OKLAHOMA and SUNTRUST ROBINSON HUMPHREY, INC. as joint lead arrangers (collectively, the “Joint Lead Arrangers”), (h) JPMORGAN, CITIGROUP GLOBAL MARKETS INC., PNC BANK, NATIONAL ASSOCIATION, BOKF, NA DBA BANK OF OKLAHOMA and SUNTRUST ROBINSON HUMPHREY, INC., as joint bookrunners, and (i) FIFTH THIRD BANK, NATIONAL ASSOCIATION, SUMITOMO MITSUI BANKING CORPORATION, PLANTERS BANK, GOLDMAN SACHS BANK USA, STIFEL BANK & TRUST, CENTRAL BANK, CHANG HWA COMMERCIAL BANK, LTD., LA BRANCH, COMMERCE BANK, MABREY BANK, WELLS FARGO BANK, NATIONAL ASSOCIATION and ARVEST BANK, as documentation agents.

PRELIMINARY STATEMENT:

1.         The Borrower, the banks, financial institutions and other institutional lenders party thereto, JPMorgan, as administrative agent, are parties to the Fourth Amended and Restated Credit Agreement, dated as of January 27, 2017 (as amended to the date hereof, the “Existing Credit Agreement”).

2.         The Borrower has requested that, upon the Effective Date (as hereinafter defined), the Lenders amend and restate in its entirety the Existing Credit Agreement on the terms and conditions hereinafter set forth.  The Required Lenders have indicated their willingness to so agree on the terms and conditions of this Agreement.

NOW,  THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree to amend and restate the Existing Credit Agreement in full as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.01        Certain Defined Terms.    As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

Acceptable Bank” means (a) any bank or trust company (i) which is organized under the laws of the United States of America or any State thereof, (ii) which has capital,

 

 

 

 

 

surplus and undivided profits aggregating at least $500,000,000, and (iii)(A) whose long-term unsecured debt obligations (or the long-term unsecured debt obligations of the holding company owning all of the capital stock of such bank or trust company) shall have been given a rating of “AA-” or better by S&P, “Aa3” or better by Moody’s or an equivalent rating by any other credit rating agency of recognized national standing or (B) the commercial paper or other short-term unsecured debt obligations of which (or the short‑term unsecured debt obligations of the holding company owning all of the capital stock of such bank or trust company) shall have been given a rating of “Al” or better by S&P or “Prime 1” or better by Moody’s or an equivalent rating by any other credit rating agency of recognized national standing or (b) any Lender.

Acceptable Broker-Dealer” means any Person other than a natural person (a) which is registered as a broker or dealer pursuant to the Exchange Act and (b) whose long-term unsecured debt obligations shall have been given a rating of “AA-” or better by S&P, “Aa3” or better by Moody’s or an equivalent rating by any other credit rating agency of recognized national standing.

Acquired Consolidated Cash Flow” means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary (any of the foregoing, a “Pro Forma Entity”) for any period, the amount for such period of Consolidated Cash Flow of such Pro Forma Entity (determined using such definitions as if references to the Borrower and its Restricted Subsidiaries therein were to such Pro Forma Entity and (x) in the case of any Acquired Entity or Business, its Subsidiaries and (y) in the case of any Converted Restricted Subsidiary, its Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity.

Acquired Entity or Business” shall have the meaning provided in the definition of the term “Consolidated Cash Flow.”

Additional Real Property” has the meaning specified in Section 5.01(i)(F).

Administrative Agent” has the meaning specified in the Preamble.

Administrative Agent’s Account” means the account of the Administrative Agent maintained by the Administrative Agent with JPMorgan at its office at 500 Stanton Christiana Road, NCC2, Floor 03, Newark, DE, 19713-2107, United States, Account No. 9008113381H0456, or such other account as the Administrative Agent shall specify in writing to the Lenders.

Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

Advance” means a Revolving Credit Advance, a Swing Line Advance or a Letter of Credit Advance.

Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person.  For purposes of this definition, the term “control” (including the

 

 

 

 

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terms “controlling”, “controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to vote 10% or more of the Voting Stock of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise.  Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an Affiliate of the Borrower; provided,  however, the Borrower shall not be an Affiliate of any Subsidiary and no Subsidiary shall be an Affiliate of the Borrower or any Subsidiary.

Agreement” has the meaning specified in the Preamble.

Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption.

Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar Lending Office in the case of a Eurodollar Rate Advance.

Applicable Margin” means with respect to the Revolving Credit Advances, a percentage per annum determined by reference to the Consolidated Debt to Consolidated Cash Flow Ratio as set forth below:

 

Consolidated Debt to
Consolidated Cash Flow Ratio

Base Rate
Advances

Eurodollar
Rate Advances

Level I

1.50:1.0 or greater

1.850%

2.850%

Level II

1.00:1.0 or greater, but less than 1.50:1.0

1.600%

2.600%

Level III

0.50:1.0 or greater, but less than 1.00:1.0

1.350%

2.350%

Level IV

less than 0.50:1.0

1.000%

2.000%

 

The Applicable Margin for each Advance shall be determined by reference to the Consolidated Debt to Consolidated Cash Flow Ratio in effect from time to time, which ratio shall be determined by reference to the financial statements most recently delivered in accordance with Section 5.03(b) or (c), as the case may be; provided,  however, that the Applicable Margin shall be at Level I for so long as the Borrower has not submitted to the Administrative Agent the financial statements as and when required under Section 5.03(b)

 

 

 

 

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or (c), as the case may be.  Each change in the Applicable Margin shall become effective as of the first Business Day following the receipt by the Administrative Agent of the financial statements delivered in accordance with Section 5.03(b) or (c), as the case may be, or the failure to timely deliver the financial statements in accordance with Section 5.03(b) or (c), as the case may be.  As of the Effective Date (until required delivery of Financial Statements in accordance with Section 5.03(b) or (c), as contemplated above), the Applicable Margin shall be at Level II.

Applicable Percentage” means a percentage per annum determined by reference to the Consolidated Debt to Consolidated Cash Flow Ratio as set forth below:

 

 

 

Consolidated Debt to
Consolidated Cash Flow Ratio

Applicable Percentage

Level I

1.50:1.0 or greater

0.350%

Level II

1.00:1.0 or greater, but less than 1.50:1.0

0.350%

Level III

0.50:1.0 or greater, but less than 1.00:1.0

0.350%

Level IV

less than 0.50:1.0

0.350%

 

The Applicable Percentage shall be determined by reference to the Consolidated Debt to Consolidated Cash Flow Ratio, in effect from time to time, which ratio shall be determined by reference to the financial statements most recently delivered in accordance with Section 5.03(b) or (c), as the case may be; provided,  however, that the Applicable Percentage shall be at Level I for so long as the Borrower has not submitted to the Administrative Agent the financial statements as and when required under Section 5.03(b) or (c), as the case may be.  Each change in the Applicable Percentage shall become effective as of the first Business Day following the receipt by the Administrative Agent of the financial statements delivered in accordance with Section 5.03(b) or (c), as the case may be, or the failure to timely deliver the financial statements in accordance with Section 5.03(b) or (c), as the case may be.

Appropriate Lender” means, at any time, with respect to (a) the Revolving Credit Facility, a Revolving Credit Lender, (b) the Letter of Credit Facility, (i) any Issuing Bank and (ii) to the extent the other Revolving Credit Lenders have made Letter of Credit Advances pursuant to Section 2.03(c) that are outstanding at such time, each such other Revolving Credit Lender, and (c) the Swing Line Facility, (i) the Swing Line Bank and (ii) to the extent the other Revolving Credit Lenders have made Swing Line Advances

 

 

 

 

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pursuant to Section 2.02(b) that are outstanding at such time, each such other Revolving Credit Lender.

Asset Acquisition” means (a) an Investment by the Borrower or any Restricted Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary or shall be merged with or into the Borrower or any Restricted Subsidiary, (b) the acquisition by the Borrower or any Restricted Subsidiary of the assets of any Person (other than a Restricted Subsidiary) which constitute all or substantially all of the assets of such Person or (c) the acquisition by the Borrower or any Restricted Subsidiary of any division or line of business of any Person (other than a Restricted Subsidiary).

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in accordance with Section 8.07 and in substantially the form of Exhibit C hereto.

Available Amount” of any Letter of Credit means, at any time, the maximum amount available to be drawn under such Letter of Credit at such time (assuming compliance at such time with all conditions to drawing).

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business (including the Federal Deposit Insurance Corporation or any other bank regulatory authority) appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment; provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof; provided,  further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

Bankruptcy Law” means any proceeding of the type referred to in Section 6.01(f) or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.

Base Rate” means, for any day, a rate per annum equal to the greatest of:

 

 

 

 

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(a)        the Prime Rate in effect on such day;

(b)        the NYFRB Rate in effect on such day plus ½ of 1%; and

(c)        the Eurodollar Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%;

provided that, for the avoidance of doubt, the Eurodollar Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day.  Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Eurodollar Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Eurodollar Rate, respectively.  If, at any time, the Base Rate is being used as an alternate rate of interest pursuant to Section 2.07(d), then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.

 “Base Rate Advance” means an Advance that bears interest as provided in Section 2.07(a)(i).

Benchmark Replacement” means the sum of:  (a) the alternate benchmark rate (which may be a SOFR-Based Rate) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to the LIBO Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement; provided further that any such Benchmark Replacement shall be administratively feasible as determined by the Administrative Agent in its sole discretion.

Benchmark Replacement Adjustment” means the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBO Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBO Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time (for the avoidance of doubt, such Benchmark Replacement Adjustment shall not be in the form of a reduction to the Applicable Margin).

Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including

 

 

 

 

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changes to the definition of “Base Rate,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent decides in its reasonable discretion may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).

Benchmark Replacement Date” means the earlier to occur of the following events with respect to the LIBO Rate:  (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the LIBO Screen Rate permanently or indefinitely ceases to provide the LIBO Screen Rate; or (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the LIBO Rate:  (1) a public statement or publication of information by or on behalf of the administrator of the LIBO Screen Rate announcing that such administrator has ceased or will cease to provide the LIBO Screen Rate, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBO Screen Rate; (2) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Screen Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the LIBO Screen Rate, a resolution authority with jurisdiction over the administrator for the LIBO Screen Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the LIBO Screen Rate, in each case which states that the administrator of the LIBO Screen Rate has ceased or will cease to provide the LIBO Screen Rate permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBO Screen Rate; and/or (3) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Screen Rate announcing that the LIBO Screen Rate is no longer representative.

Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrower,

 

 

 

 

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the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.

Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the LIBO Rate and solely to the extent that the LIBO Rate has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the LIBO Rate for all purposes hereunder in accordance with Section 2.07(d) and (y) ending at the time that a Benchmark Replacement has replaced the LIBO Rate for all purposes hereunder pursuant to Section 2.07(d).

Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

BHC Act Affiliate” of a party means an “affiliate’ (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

Borrower” has the meaning specified in the Preamble.

Borrower’s Account” means the account of the Borrower maintained by the Borrower with Fifth Third Bank, National Association at its office at Cincinnati, Ohio, ABA No. 042000314, Account No. 7021290650, or such other account as the Borrower shall specify in writing to the Administrative Agent.

Borrowing” means a Revolving Credit Borrowing, or a Swing Line Borrowing.

Business Day” means a day of the year on which banks are not required or authorized by law to close in New York City and, if the applicable Business Day relates to any Eurodollar Rate Advances, on which dealings are carried on in the London interbank market.

Business Plan” means a rolling five year business plan for the Borrower and its Restricted Subsidiaries which shall include, without limitation, forecasts prepared by management of the Borrower, in form satisfactory to the Administrative Agent, of balance sheets, income statements and cash flow statements on an annual basis for each of the next five Fiscal Years and which shall set forth (without limitation) mine development plans, an analysis of business outlook for the term of the Facilities in form and scope reasonably satisfactory to the Administrative Agent, capital expenditures, coal reserve profiles, property acquisitions, production levels and other similar items, which Business Plan may

 

 

 

 

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be revised by the Borrower from time to time to reflect changes in operating and market conditions.

 “Capital Stock”  shall mean, with respect to any Person, any and all shares, units representing interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock, including, (a) with respect to partnerships, partnership interests (whether general or limited) and any other interest or participation that confers upon a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership, (b) with respect to limited liability companies, member interests, and (c) with respect to any Person, any rights (other than debt securities convertible into capital stock), warrants or options exchangeable for or convertible into such capital stock.

Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the Issuing Banks or Lenders, as collateral for L/C Exposure or obligations of Lenders to fund participations in respect of L/C Exposure, cash or deposit account balances or, if the Administrative Agent and each applicable Issuing Bank shall agree in its sole discretion, other credit support, in each case in an amount equal to 103% of such L/C Exposure or obligations and pursuant to documentation in form and substance satisfactory to the Administrative Agent and each applicable Issuing Bank.  “Cash Collateral” shall have a meaning analogous to the foregoing and shall include the proceeds of such cash collateral and other credit support.

Cash Equivalents” means any of the following, to the extent owned by the Borrower or any of its Restricted Subsidiaries free and clear of all Liens and, unless otherwise specified below, having a maturity of not greater than two years from the date of acquisition thereof:

(a)        United States Governmental Securities maturing within one year from the date of acquisition;

(b)        certificates of deposit, banker’s acceptances or other bank instruments maturing within one year from the date of acquisition thereof, issued by Acceptable Banks;

(c)        Repurchase Agreements;

(d)        obligations of any state of the United States of America, or any municipality of any such state, in each case rated “AA” or better by S&P, “Aa2” or better by Moody’s or an equivalent rating by any other credit rating agency of recognized national standing; provided that such obligations mature within one year from the date of acquisition thereof; and

(e)        commercial paper maturing in 270 days or less from the date of issuance which, at the time of acquisition by the Borrower or any Restricted Subsidiary, is rated A-l or better by S&P or P-1 or better by Moody’s or an equivalent rating by any other credit rating agency of recognized national standing.

 

 

 

 

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Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to a Cash Management Agreement.

 “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time.

CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.

Change of Control” means the occurrence of any of the following: (a) C-Holdings, LLC, a Delaware limited liability company, (“C-Holdings”) at any time for any reason, ceasing to (i) possess the right, directly or indirectly, to elect or appoint the majority of the board of directors of the general partner of the MLP and the managing general partner of the Borrower or (ii) control, directly or indirectly, the general partner of the MLP and the managing general partner of the Borrower, (b) there at any time being a general partner of the MLP that is not controlled, directly or indirectly, by C-Holdings, (c) there at any time being a managing general partner of the Borrower that is not controlled, directly or indirectly, by C-Holdings or (d) the Permitted Holders shall cease, at any time for any reason, to directly or indirect beneficially and of record cease to own the Capital Stock of C-Holdings representing more than 50% of the aggregate ordinary voting power and economic interests represented by the issued and outstanding common Capital Stock of C-Holdings.

Code” means the Internal Revenue Code of 1986 as amended from time to time, and the regulations promulgated and rulings issued thereunder.

Collateral” means all of the “Collateral” and “Mortgaged Property” or “Trust Property” or other similar term referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties; provided that in no event shall any Excluded Asset or Excluded Property constitute Collateral.

Collateral Agent” means JPMorgan, in its capacity as “Collateral Agent” under the Security Agreement and the other Collateral Documents, and any successor thereto in such capacity.

Collateral Documents” means, collectively, the Security Agreement, the Mortgages, each Intercreditor Agreement, each of the other mortgages, collateral assignments, security agreements, pledge agreements, control agreements, collateral agency agreements, or other similar agreements delivered to the Administrative Agent or the Collateral Agent, as applicable, pursuant to the other Collateral Documents or Section 5.01(i), to grant a valid, perfected security interest in any property as collateral for

 

 

 

 

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the Obligations, and each of the other agreements, instruments or documents that creates or purports to create a security interest or Lien in favor of the Collateral Agent for the benefit of the Secured Parties.

Commitment” means a Revolving Credit Commitment, a Swing Line Commitment or a Letter of Credit Commitment.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

Compounded SOFR” means the compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate (which may include compounding in arrears with a lookback and/or suspension period as a mechanism to determine the interest amount payable prior to the end of each Interest Period) being established by the Administrative Agent in accordance with:  (1) the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded SOFR; provided that:  (2) if, and to the extent that, the Administrative Agent determines that Compounded SOFR cannot be determined in accordance with clause (1) above, then the rate, or methodology for this rate, and conventions for this rate that the Administrative Agent determines in its reasonable discretion are substantially consistent with any evolving or then-prevailing market convention for determining compounded SOFR for U.S. dollar-denominated syndicated credit facilities at such time; provided, further, that if the Administrative Agent decides that any such rate, methodology or convention determined in accordance with clause (1) or clause (2) is not administratively feasible for the Administrative Agent, then Compounded SOFR will be deemed unable to be determined for purposes of the definition of “Benchmark Replacement.”

Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

Consolidated” refers to the consolidation of accounts in accordance with GAAP.

Consolidated Cash Flow” means, as of any date of determination for any applicable period, the excess, if any, of (a) the sum of, without duplication, the amounts for such period, taken as a single accounting period, of (i) Consolidated Net Income for such period, plus (ii) to the extent deducted in the determination of Consolidated Net Income for such period, without duplication, (A) Consolidated Non-Cash Charges, (B) Consolidated Interest Expense and (C) Consolidated Income Tax Expense, over (b) the sum of, without duplication, the amounts for such period, taken as a single accounting period, of (i) any non-cash items increasing Consolidated Net Income for such period (x) to the extent that such items constitute reversals of Consolidated Non-Cash Charges for a previous period and which were included in the computation of Consolidated Cash Flow for such previous period pursuant to the provisions of the preceding clause (a) or (y) for unrealized gains under derivative instruments, and (ii) any cash charges for such period to the extent that such charges constituted non-cash items for a previous period and to the

 

 

 

 

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extent such charges are not otherwise included in the determination of Consolidated Net Income; provided that Consolidated Cash Flow shall be increased or decreased by (without duplication):

(x) there shall be included in determining Consolidated Cash Flow for any period, without duplication, the Acquired Consolidated Cash Flow of any Person or business, or attributable to any property or asset acquired by the Borrower or any Restricted Subsidiary during such period (but not the Acquired Consolidated Cash Flow of any related Person or business or any Acquired Consolidated Cash Flow attributable to any assets or property, in each case to the extent not so acquired) to the extent not subsequently sold, transferred, abandoned or otherwise disposed by the Borrower or such Restricted Subsidiary (each such Person, business, property or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”) and the Acquired Consolidated Cash Flow of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), based on the actual Acquired Consolidated Cash Flow of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such acquisition or conversion); and

(y) to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated Cash Flow for any period the Disposed Cash Flow of any Person, property, business or asset sold, transferred, abandoned or otherwise disposed of, closed or classified as discontinued operations by the Borrower or any Restricted Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”), and the Disposed Cash Flow of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”) based on the actual Disposed Cash Flow of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer or disposition or conversion).

Notwithstanding clause (y) above, the distributions of any Converted Unrestricted Subsidiary that were made to the Borrower and other Restricted Subsidiaries during such period shall be included (without duplication) in Consolidated Cash Flow to the extent such distributions would have been considered Eligible CNI Distributions had such Converted Unrestricted Subsidiary been an Unrestricted Subsidiary during such period (net of cash contributions during the relevant calculation period from the Borrower and the other Restricted Subsidiaries into such Converted Unrestricted Subsidiaries).

Consolidated Debt” means, as of any date of determination, the aggregate outstanding principal amount of all Debt of the Borrower and its Restricted Subsidiaries outstanding on such date, after eliminating all offsetting debits and credits between the Borrower and its Restricted Subsidiaries and all other items required to be eliminated in the course of the preparation of consolidated financial statements of the Borrower and its Restricted Subsidiaries in accordance with GAAP.

 

 

 

 

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Consolidated Debt to Consolidated Cash Flow Ratio” means, at any date of determination, the ratio of Consolidated Debt of the Borrower and its Restricted Subsidiaries as at the end of the most recently ended fiscal quarter of the Borrower for which financial statements are required to be delivered to the Lenders pursuant to Section 5.03(b) or (c), as the case may be, to Consolidated Cash Flow of the Borrower and its Restricted Subsidiaries for such fiscal quarter and the immediately preceding three fiscal quarters.

Consolidated First Lien Debt” means Consolidated Debt other than any Consolidated Debt that is (i) unsecured or (ii) secured by a Lien on the Collateral that is contractually junior to the Lien securing the Obligations. “Consolidated First Lien Debt” shall include any Debt described in Section 5.02(b)(iii)(H) and Finance Lease Obligations.  For purposes of clarification, a guaranty of Debt by a Person shall not cause such Debt to be considered “secured” for purposes of clause (i) of this definition.

Consolidated First Lien Debt to Consolidated Cash Flow Ratio” means, at any date of determination, the ratio of Consolidated First Lien Debt of the Borrower and its Restricted Subsidiaries as at the end of the most recently ended fiscal quarter of the Borrower for which financial statements are required to be delivered to the Lenders pursuant to Section 5.03(b) or (c), as the case may be, to Consolidated Cash Flow of the Borrower and its Restricted Subsidiaries for such fiscal quarter and the immediately preceding three fiscal quarters.

Consolidated Fixed Charges” means, with respect to the Borrower and its Restricted Subsidiaries for any period, the sum of Consolidated Interest Expense plus cash distributions for such period, in each case, determined on a consolidated basis in accordance with GAAP.

Consolidated Income Tax Expense” means, with respect to any period, all provisions for Federal, state, local and foreign income taxes of the Borrower and its Restricted Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP.

Consolidated Interest Expense” means, as of any date of determination for any applicable period, the sum (without duplication) of the following (in each case, eliminating all offsetting debits and credits between the Borrower and its Restricted Subsidiaries and all other items required to be eliminated in the course of the preparation of consolidated financial statements of the Borrower and its Restricted Subsidiaries in accordance with GAAP):  (a) all interest in respect of Debt of the Borrower and its Restricted Subsidiaries whether paid or accrued (including non-cash interest payments and imputed interest on Finance Lease Obligations) deducted in determining Consolidated Net Income for such period, and (b) all debt discount (but not expense) amortized or required to be amortized in the determination of Consolidated Net Income for such period.

Consolidated Net Income” means, with reference to any period, (i) the net income (or loss) of the Borrower and its Restricted Subsidiaries (other than any Joint Ventures) for such period (taken as a cumulative whole), as determined in accordance with GAAP, plus

 

 

 

 

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(ii) without duplication, any Eligible CNI Distributions actually received in cash by the Borrower or a Restricted Subsidiary (other than any Joint Venture) from any Unrestricted Subsidiary and/or Joint Venture during such period to the extent not already included therein; provided that there shall be excluded from clause (i):

(a)        the income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary or is merged into or consolidated with the Borrower or a Restricted Subsidiary, and the income (or loss) of any Person, substantially all of the assets of which have been acquired in any manner, realized by such other Person prior to the date of acquisition,

(b)        any aggregate net gain or loss during such period arising from the sale, conversion, exchange or other disposition of capital assets (such term to include, without limitation, (i) all non-current assets, and, without duplication, (ii) the following, whether or not current:  all fixed assets, whether tangible or intangible, all inventory sold in conjunction with the disposition of fixed assets, and all Securities);

(c)        debt extinguishment costs and expenses in an amount not to exceed $25,000,000 until the latest Termination Date under the Revolving Credit Facility;

(d)        transaction costs, fees and expenses in connection with any acquisition or issuance of Debt or equity (whether or not successful) by the Borrower or any of its Restricted Subsidiaries; and

(e)        the amount of any non-cash unusual or non-recurring restructuring or similar charges; provided that any determination of whether a charge is unusual or non-recurring shall be made by the Borrower’s chief financial officer (or person acting in a similar capacity) pursuant to such officer’s good faith judgment;

 “Consolidated Non-Cash Charges” means, with respect to the Borrower and its Restricted Subsidiaries for any period, the aggregate depreciation, depletion and amortization (other than amortization of debt discount and expense), the non-cash portion of advance royalties, any non-cash employee compensation expenses for such period, impairment charges, unrealized losses and gains under derivative instruments and non-cash charges due to cumulative effects of changes in accounting principles, in each case, reducing Consolidated Net Income of the Borrower and its Restricted Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP.

Constitutive Documents” means, with respect to any Person, the certificate of incorporation or registration or formation (including, if applicable, certificate of change of name), articles of incorporation or association, memorandum of association, charter, bylaws, partnership agreement, trust agreement, joint venture agreement, limited liability company operating or members agreement, joint venture agreement or one or more similar agreements, instruments or documents constituting the organization or formation of such Person.

 

 

 

 

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Conversion”, “Convert” and “Converted” each refer to a conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.07(d),  2.09 or 2.10.

Converted Restricted Subsidiary” has the meaning provided in the definition of the term “Consolidated Cash Flow.”

Converted Unrestricted Subsidiary” has the meaning provided in the definition of the term “Consolidated Cash Flow.”

Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the applicable Interest Period with respect to the LIBO Rate.

Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

Debt” means, with respect to any Person, without duplication,

(a)        its liabilities for borrowed money;

(b)        its liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable arising in the ordinary course of business but including, without limitation, all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such property);

(c)        its Finance Lease Obligations;

(d)        all liabilities secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or otherwise become liable for such liabilities); provided,  however, that for purposes of determining the amount of liabilities included in this clause (d), such liabilities shall be limited to the fair market value of the property of such Person subject to such Lien unless such Person shall have otherwise become liable for or assumed such liabilities (in which case the total amount of such liabilities shall be included in this clause (d));

(e)        all its liabilities in respect of letters of credit or instruments serving a similar function or surety bonds issued or accepted for its account by banks or other financial institutions (whether or not representing obligations for borrowed money), other than any such liabilities that are incurred in the ordinary course of business of such Person and:

(i)         that consist of liabilities in respect of surety bonds (other than liabilities in respect of letters of credit issued to any insurance company or other issuer of a surety bond as credit support for such Person’s reimbursement obligations to such insurance company or other institution acting as issuer of such

 

 

 

 

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surety bond) where such surety bonds are issued to support such Person’s obligations in respect of workmen’s compensation, unemployment insurance, reclamation laws or mining activities or activities incidental, supplemental or related to mining activities, the payment of retirement benefits or performance guarantees relating to coal deliveries or insurance deductibles, or

(ii)        that consist of liabilities in respect of letters of credit or instruments serving a similar function which are issued to support such Person’s obligations (including surety bond obligations) in respect of workmen’s compensation, unemployment insurance, reclamation laws or mining activities or activities incidental, supplemental or related to mining activities, the payment of retirement benefits or performance guarantees relating to coal deliveries or insurance deductibles and aggregating no more than $40,000,000 at any time outstanding for all of the liabilities contemplated by this clause (ii); or

(iii)      which are issued in respect of current trade payables of such Person;

(f)         Swaps of such Person, to the extent required to be reflected on a balance sheet of such Person prepared as of any date of determination in accordance with GAAP;

(g)        Preferred Stock of Subsidiaries owned by Persons other than the Borrower, a Subsidiary Guarantor or a Wholly Owned Subsidiary; and

(h)        any Guaranty of such Person with respect to liabilities of a type described in any of clauses (a) through (g) hereof.

The amount of any indebtedness of a Joint Venture secured by a Lien on property owned or being purchased by the Borrower or its Restricted Subsidiaries as of any date shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the indebtedness that is secured by such Lien and (b) the maximum amount for which the Borrower or its Restricted Subsidiaries may be liable (which may be determined with reference to the fair market value of the property securing such indebtedness as reasonably determined by the Borrower in good faith) pursuant to the terms of such indebtedness.  Except as set forth in the sentence immediately above, the amount of indebtedness of any Joint Venture, which is attributable to the Borrower or any Restricted Subsidiary shall be deemed to equal the amount of indebtedness that would be attributable to the Borrower or any Restricted Subsidiary in accordance with GAAP.

Default” means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.

Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

Defaulting Lender” means any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Advances, (ii) fund any portion of its participations in Letters of Credit or Swing Line Advances or (iii) pay over to any Loan Party any other amount required to be paid by it hereunder,

 

 

 

 

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unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Administrative Agent, the Borrower or any Loan Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding an Advance under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Administrative Agent or a Loan Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Advances and participations in then outstanding Letters of Credit and Swing Line Advances under this Agreement; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the Administrative Agent’s or such Loan Party’s, as the case may be, receipt of such certification in form and substance satisfactory to the Administrative Agent and, if applicable, such Loan Party, (d) has become the subject of a Bankruptcy Event or (e) has, or has a direct or indirect parent company that has become the subject of a Bail-In Action.

Disclosed Litigation” has the meaning specified in Section 3.01(d).

Disposed Cash Flow” means, with respect to any Sold Entity or Business or any Converted Unrestricted Subsidiary for any period, the amount for such period of Consolidated Cash Flow of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to the Borrower and the Restricted Subsidiaries in the definition of Consolidated Cash Flow were references to such Sold Entity or Business or Converted Unrestricted Subsidiary and its respective Subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business or Converted Unrestricted Subsidiary, as the case may be.

Domestic Lending Office” means, with respect to any Initial Lender, the office of such Lender specified as its “Domestic Lending Office” in its Administrative Questionnaire delivered to the Administrative Agent, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Administrative Agent.

Domestic Subsidiary” means any Subsidiary other than a Foreign Subsidiary.

Dotiki Mine” means the mine commonly known as the Dotiki Mine located at (i) 1758 State Route 874, Clay, KY 42404, (ii) 4611 State Route 270 West, Clay, KY 42404, (iii) 2668 State Route 120 East, Providence, KY 42450, and (iv) 1586 Balls Hill Road, Nebo, KY 42441 (collectively, the “Dotiki Mine”), and covered by that certain (i) Fee and Leasehold Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing (Kentucky), dated as of July 17, 2017, by Alliance Resource Properties, LLC (“Alliance Resource Properties”), Alliance Land, LLC, Alliance Properties, LLC, Webster

 

 

 

 

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County Coal, LLC and Hopkins County Coal, LLC to Collateral Agent, as recorded in the land records of Hopkins County, Kentucky and Webster County, Kentucky, (ii) Fee and Leasehold Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing (Kentucky), dated as of March 8, 2018, by Alliance Resource Properties to Collateral Agent, and (iii) Fee and Leasehold Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing (Kentucky), dated as of March 12, 2019, by Alliance Resource Properties to Collateral Agent.

Early Opt-in Election” means the occurrence of:  (1)(i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section 2.07(d) are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the LIBO Rate, and (2)(i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Effective Date” means the first date on which the conditions set forth in Article III shall have been satisfied.

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 8.07(b) (subject to such consents, if any, as may be required under Section 8.07(b)(i);  provided that, for the avoidance of doubt, no Ineligible Assignee shall be an Eligible Assignee.

Eligible CNI Distributions” means, with reference to any period, with respect to any Unrestricted Subsidiary or any Joint Venture, the net income (or loss) of any Unrestricted Subsidiary (and its consolidated Subsidiaries) or any  Joint Venture (and its

 

 

 

 

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consolidated Subsidiaries), as applicable, for such period (taken as a cumulative whole), as determined in accordance with GAAP (as calculated on a consolidated stand-alone basis), (A) adding back, to the extent deducted in such net income, and without duplication, the aggregate depreciation, depletion and amortization (other than amortization of debt discount and expense), the non-cash portion of advance royalties, any non-cash employee compensation expenses, impairment charges, unrealized losses and gains under derivative instruments and non-cash charges due to cumulative effects of changes in accounting principles, in each case, of the applicable Unrestricted Subsidiary (and its consolidated Subsidiaries) or Joint Venture (and its consolidated Subsidiaries)  as determined in accordance with GAAP (as calculated on a consolidated stand-alone basis) and (B) excluding (x) any extraordinary, special, one-time or unusual income (or loss), (y) any income (or loss) resulting from any condemnation or casualty events (other than any such income arising directly from net cash proceeds of any sale of assets by the applicable Unrestricted Subsidiary or Joint Venture; provided that any Eligible CNI Distributions arising from this parenthetical shall not exceed $5,000,000 in the aggregate in any twelve-month period).  For the avoidance of doubt, if a net loss of any Unrestricted Subsidiary (and its consolidated Subsidiaries) or any Joint Venture (and its consolidated Subsidiaries), as applicable, for such period, is calculated in accordance with this definition, then no Eligible CNI Distributions shall arise with respect to such Unrestricted Subsidiary (and its consolidated Subsidiaries) or such Joint Venture (and its consolidated Subsidiaries), as the case may be, for such period.  For purposes of this definition, “net income” shall be determined for each Unrestricted Subsidiary (and its consolidated Subsidiaries) and each Joint Venture (and its consolidated Subsidiaries) in the same manner as Consolidated Net Income is determined for the Borrower and its Restricted Subsidiaries, including applying the exclusions contemplated in clauses (a) – (e) of the definition of “Consolidated Net Income”, with such changes applied to the definition of (I) “Consolidated Net Income” as is necessary to reflect net income is being determined for Unrestricted Subsidiaries and Joint Ventures and their respective consolidated Subsidiaries and (II) “Eligible CNI Distributions” as is necessary to reflect in “net income” of the Unrestricted Subsidiaries and the Joint Ventures and their respective consolidated Subsidiaries distributions received from Investments they have in Persons that are not consolidated Subsidiaries.

Environmental Action” means any action, suit, demand, demand letter, claim, notice of non‑compliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, any Environmental Permit or Hazardous Material or arising from alleged injury or threat to health, safety or the environment, including, without limitation, (a) by any Governmental Authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any Governmental Authority or third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.

Environmental Law” means any Federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, writ, judgment, injunction, decree or judicial or agency interpretation, policy or guidance relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.

 

 

 

 

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Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member of the controlled group of any Loan Party, or under common control with any Loan Party, within the meaning of Section 414 of the Code.

ERISA Event” means (a)(i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement with respect to such event has been waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan; (g) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA; (h) the determination that any Plan is in “at risk” status (within the meaning of Section 303 of ERISA); or (i) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan.

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

Eurodollar Lending Office” means, with respect to any Initial Lender, the office of such Lender specified as its “Eurodollar Lending Office” in its Administrative Questionnaire delivered to the Administrative Agent, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Administrative Agent.

Eurodollar Rate” means, with respect to any Eurodollar Rate Advance comprising part of the same Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Eurodollar Rate Reserve Percentage.

 

 

 

 

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Eurodollar Rate Advance” means an Advance that bears interest as provided in Section 2.07(a)(ii).

Eurodollar Rate Reserve Percentage” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board of Governors of the Federal Reserve System to which the Administrative Agent is subject with respect to the Eurodollar Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board of Governors of the Federal Reserve System).  Such reserve percentage shall include those reserve percentages imposed pursuant to such Regulation D.  Eurodollar Rate Advances shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation.  The Eurodollar Rate Reserve Percentage shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

Events of Default” has the meaning specified in Section 6.01.

Exchange Act” means the Securities Exchange Act of 1934, as amended.

Excluded Assets” has the meaning assigned to such term in the Security Agreement.

Excluded Property” means the inactive and closed mining facilities and other assets identified on Schedule 1.01(a) and all real property, including leasehold interests, not included and not otherwise required to be included in the Mortgaged Property (without giving effect to the proviso in such definition), provided that in the event any inactive and closed mining facility becomes a Reactivated Mining Facility, such Reactivated Mining Facility shall be automatically removed from the definition of Excluded Property.

Excluded Swap Guarantor” means any Transaction Party (other than the Borrower) all or a portion of whose Guaranty of, or grant of a security interest to secure, any Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof).

Excluded Swap Obligations” means, with respect to any Transaction Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Transaction Party of, or the grant by such Transaction Party of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Transaction Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 17 of the Subsidiary Guaranty and any other “keepwell, support or other

 

 

 

 

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agreement” for the benefit of such Transaction Party and any and all guarantees of such Transaction Party’s Swap Obligations by other Transaction Parties) at the time the Guaranty of such Transaction Party, or a grant by such Transaction Party of a security interest, becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.

Excluded Taxes” means any of the following Taxes imposed on or with respect to a Lender or the Administrative Agent or required to be withheld or deducted from a payment to a Lender or the Administrative Agent, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Lender or the Administrative Agent being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in an Advance or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Advance or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.17) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.12 amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Lender or the Administrative Agent’s failure to comply with Section 2.12(e) and (d) any withholding Taxes imposed under FATCA.

Existing Credit Agreement” has the meaning specified in the Recitals.

Existing Debt” means Debt of each Loan Party and its Restricted Subsidiaries outstanding immediately before the occurrence of the Effective Date.

Existing Mortgages” means each Mortgage made in favor of the Collateral Agent in connection with the Existing Credit Agreement.

Extending Lender”  means each Lender listed as an “Extending Lender” on Schedule I hereto, and any other Lender that elects to become an Extending Lender by notice to the Borrower and the Administrative Agent, subject to the Borrower’s prior consent.

Facility” means the Revolving Credit Facility, the Swing Line Facility or the Letter of Credit Facility.

FATCA” means Sections 1471 through 1474 of the Code, or any amended or successor version to the extent substantively comparable and not materially more onerous to comply with, any current or future regulations or official interpretations thereof, any

 

 

 

 

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agreements entered into pursuant to Section 1471(b)(1) of the Code, any published intergovernmental agreement entered into in connection with the implementation of such sections of the Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to any such published intergovernmental agreement.

Federal Funds Rate”  means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate, provided that if the Federal Funds Rate shall be less than zero, such rate shall be deemed to zero for the purposes of this Agreement.

Fee Letters” mean, collectively, (a) the Fee Letter, dated January 7, 2020, between the Borrower and JPMorgan, (b) the Fee Letter, dated January 7, 2020, between the Borrower and  Citigroup Global Markets, Inc., (c) the Fee Letter, dated January 7, 2020, between the Borrower and PNC Capital Markets LLC, (d) the Fee Letter, dated February 6, 2020, between the Borrower and BOKF, NA dba Bank of Oklahoma and (e) the Fee Letter, dated February 21, 2020, by and between the Borrower and Suntrust Robinson Humphrey, Inc., in each case, as any such Fee Letter may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms.

Finance Lease means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP or a lease that is otherwise required by GAAP to be classified as a finance lease. “Finance Lease” includes equipment lease financings whether the liability thereunder is required by GAAP to be recorded as debt or a finance lease, and includes leases that were entered on or prior to December 31, 2018 that were classified as “capital leases” when entered.  “Finance Lease” does not include operating leases.

Finance Lease Obligation” means, with respect to any Person and a Finance Lease, the amount of the obligation of such Person as the lessee under such Finance Lease which would, in accordance with GAAP, appear as a liability on a balance sheet of such Person.

Fiscal Year” means a fiscal year of the Borrower and its Consolidated Subsidiaries ending on December 31 in any calendar year.

Fixed Charge Ratio” means the ratio of (a) Consolidated Cash Flow minus (i) Consolidated Income Tax Expense, minus (ii) Maintenance Cap Ex to (b) Consolidated Fixed Charges of the Borrower and its Restricted Subsidiaries for each rolling four-quarter period (any such period, a “FCC Test Period”); provided that in the event that the Borrower or any Restricted Subsidiary incurs, assumes, repays, guarantees or redeems any Debt or issues or redeems Preferred Stock subsequent to the commencement of the FCC Test Period but prior to or simultaneously with the date of determination, then the Fixed Charge Ratio shall be calculated giving Pro Forma Effect to such incurrence, assumption, repayment, guarantee or redemption of Debt, or such issuance or redemption of Preferred

 

 

 

 

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Stock (in each case, including a pro forma application of the net proceeds therefrom), as if the same had occurred at the beginning of the FCC Test Period.

For purposes of calculating the Fixed Charge Ratio, Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (as determined in accordance with GAAP) that have been made by the Borrower or any Restricted Subsidiary during the FCC Test Period or subsequent to such FCC Test Period and on or prior to or simultaneously with the date of determination shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (and the change in any associated fixed charge obligations and the change in Consolidated Cash Flow resulting therefrom) had occurred on the first day of the FCC Test Period.  If since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Borrower or any Restricted Subsidiary since the beginning of such period) shall have made any Investment, acquisition, disposition, merger, consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Fixed Charge Ratio shall be calculated giving Pro Forma Effect thereto for such FCC Test Period as if such Investment, acquisition, disposition, merger, consolidation or disposed operation had occurred at the beginning of the FCC Test Period.

For purposes of this definition, whenever Pro Forma Effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower.  If any Debt bears a floating rate of interest and is being given Pro Forma Effect, the interest on such Debt shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any hedging obligations applicable to such Debt).  Interest on a Finance Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Finance Lease Obligation in accordance with GAAP.  For purposes of making the computation referred to above, interest on any Debt under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Debt during the applicable period.  Interest on Debt that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower may designate.

Flood Hazard Property” has the meaning specified in Section 5.01(i)(iv)(G).

Foreign Subsidiary” means a Subsidiary organized under the laws of a jurisdiction other than the United States or any State thereof or the District of Columbia.

GAAP” has the meaning specified in Section 1.03.

General Partner” means MGP II, LLC, a Delaware limited liability company, together with its successors and permitted assigns as the “managing general partner” of the Borrower.

 

 

 

 

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Governmental Authority” means any nation or government, any state, province, city, municipal entity or other political subdivision thereof, any governmental, executive, legislative, judicial, administrative or regulatory agency, department, authority, instrumentality, commission, board, bureau or similar body, whether federal, state, provincial, territorial, local or foreign, 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) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including, without limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).

Governmental Authorization means any authorization, approval, consent, franchise, license, covenant, order, ruling, permit, certification, exemption, notice, declaration or similar right, undertaking or other action of, to or by, or any filing, qualification or registration with, any Governmental Authority.

Greenfield Project” means any mine development project involving the expenditure of greater than $5,000,000 for the development of mine infrastructure to access unmined reserves.

Guarantors” means MLP and the Subsidiary Guarantors, collectively, and “Guarantor” means any of MLP or the Subsidiary Guarantors, as applicable.

Guaranty” means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any Debt of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person:

(a)        to purchase such Debt or any property constituting security therefor;

(b)        to advance or supply funds (i) for the purchase or payment of such Debt, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such Debt;

(c)        to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such Debt of the ability of any other Person to make payment of the Debt; or

(d)        otherwise to assure the owner of such Debt against loss in respect thereof.

In any computation of the Debt of the obligor under any Guaranty, the Debt that is the subject of such Guaranty shall be assumed to be a direct obligation of such obligor.  The

 

 

 

 

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amount of any Guaranty shall be equal to the outstanding amount of the Debt guaranteed, or such lesser amount to which the maximum exposure of such Person shall have been specifically limited.

Hazardous Materials” means (a) petroleum or petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and radon gas and (b) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.

Hedge Bank” means any Person that, at the time it enters into an interest rate Swap Contract permitted under Section 5.02, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Swap Contract.

Indemnified Costs” has the meaning specified in Section 7.02(a).

Indemnified Party” has the meaning specified in Section 8.04(b).

Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

Indenture” means the Indenture, dated April 24, 2017, among the Borrower and Alliance Resource Finance Corporation, as issuers, MLP, the guarantors party thereto and Wells Fargo Bank, National Association, as trustee.

Indenture Guaranty” has the meaning specified in Section 5.01(r).

Ineligible Assignee” means (a) the Borrower or any of its Affiliates or Subsidiaries, (b) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (b), (c) any Person that is engaged directly in the business of (i) the mining, production, washing, refinement, preparation, sale, marketing or transportation of coal or (ii) leasing coal reserves or other interests in minerals or mineral rights to entities engaged in the mining, production, sale or marketing of coal, and any subsidiary of such Person, (d) a natural person or (e) a company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof; provided that, such company, investment vehicle or trust shall not constitute an Ineligible Assignee if it (i) has not been established for the primary purpose of acquiring any Advances or Commitments, (ii) is managed by a professional advisor, who is not such natural person or a relative thereof, having significant experience in the business of making or purchasing commercial loans and (iii) has assets greater than $100,000,000 and a significant part of its activities consist of making or purchasing commercial loans and similar extensions of credit in the ordinary course of its business.

Initial Issuing Banks” has the meaning specified in the Preamble.

Initial Lenders” has the meaning specified in the Preamble.

 

 

 

 

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Insurance Subsidiary” means Wildcat Insurance, LLC, a Delaware limited liability company.

Intellectual Property Security Agreements” has the meaning assigned to such term in the Security Agreement.

Intercreditor Agreement” means each Second Lien Intercreditor Agreement and any other intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent, the Required Lenders, and the Borrower, as applicable.

Interest Coverage Ratio” means, at any date of determination, the ratio of Consolidated Cash Flow of the Borrower and its Restricted Subsidiaries as at the end of the most recently ended fiscal quarter of the Borrower for which financial statements are required to be delivered to the Lenders pursuant to Section 5.03(b) or (c), as the case may be, to Consolidated Interest Expense of the Borrower and its Restricted Subsidiaries for such fiscal quarter and the immediately preceding three fiscal quarters (any such period, the “ICR Test Period”); provided that in the event that the Borrower or any Restricted Subsidiary incurs, assumes, guarantees or redeems any Debt or issues or redeems Preferred Stock subsequent to the commencement of the ICR Test Period but prior to or simultaneously with the date of determination, then the Interest Coverage Ratio shall be calculated giving Pro Forma Effect to such incurrence, assumption, guarantee or redemption of Debt, or such issuance or redemption of Preferred Stock (in each case, including a pro forma application of the net proceeds therefrom), as if the same had occurred at the beginning of the ICR Test Period.

For purposes of calculating the Interest Coverage Ratio, Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (as determined in accordance with GAAP) that have been made by the Borrower or any Restricted Subsidiary during the ICR Test Period or subsequent to such ICR Test Period and on or prior to or simultaneously with the date of determination shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (and the change in any associated fixed charge obligations and the change in Consolidated Cash Flow resulting therefrom) had occurred on the first day of the ICR Test Period.  If since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Borrower or any Restricted Subsidiary since the beginning of such period) shall have made any Investment, acquisition, disposition, merger, consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Interest Coverage Ratio shall be calculated giving Pro Forma Effect thereto for such ICR Test Period as if such Investment, acquisition, disposition, merger, consolidation or disposed operation had occurred at the beginning of the ICR Test Period.

For purposes of this definition, whenever Pro Forma Effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower.  If any Debt bears a floating rate of interest and is being given Pro Forma Effect, the interest on such Debt shall be calculated as if the

 

 

 

 

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rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any hedging obligations applicable to such Debt).  Interest on a Finance Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Finance Lease Obligation in accordance with GAAP.  For purposes of making the computation referred to above, interest on any Debt under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Debt during the applicable period.  Interest on Debt that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower may designate.

Interest Period” means, for each Eurodollar Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance, and ending on the last day of the period selected by the Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions below.  The duration of each such Interest Period shall be one, two, three or six or, if available to each Appropriate Lender, nine or twelve months, as the Borrower may, upon notice received by the Administrative Agent not later than 12:00 noon (New York City time) on the third Business Day prior to the first day of such Interest Period, select; provided,  however, that:

(a)        the Borrower may not select any Interest Period with respect to any Eurodollar Rate Advance under a Facility that ends after the latest Termination Date for such Facility;

(b)        Interest Periods commencing on the same date for Eurodollar Rate Advances comprising part of the same Borrowing shall be of the same duration;

(c)        whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day; provided,  however, that, if such extension would cause the last day of such Interest Period to occur in the next succeeding calendar month, the last day of such Interest Period shall occur on the immediately preceding Business Day;

(d)        whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month; and

(e)        on the Effective Date, the existing “Interest Period” (under and as defined in the Existing Credit Agreement) immediately prior to the Effective Date

 

 

 

 

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for any outstanding “Advances” (under and as defined in the Existing Credit Agreement) shall continue hereunder until such Interest Period expires by its terms.

Interpolated Rate” has the meaning assigned to such term in the definition of “LIBO Rate.”

Inventory” means inventory held for sale or lease in the ordinary course of business.

Investment” means any investment, made in cash or by delivery of property, by the Borrower or any of its Restricted Subsidiaries (a) in any Person, whether by acquisition of stock, debt or other obligations or Security, or by loan, guaranty of any debt, advance, capital contribution or otherwise or (b) in any property.  For purposes of covenant compliance, the amount of any Investment shall be (i) the amount actually invested, as determined immediately prior to the time of each such Investment (provided, that such amount shall be deemed to be, in the case of any asset other than cash or Cash Equivalent, its fair market value as reasonably determined by (x) the Borrower if such fair market value is less than $10,000,000, (y) the board of directors of the general partner of MLP if such fair market value is at least $10,000,000 but less than $50,000,000, and (z) both the Borrower and the Administrative Agent (or at the election of any of them, by a third party appraiser designated by such party and approved by the other) if such fair market value is at least $50,000,000), without adjustment for subsequent increases or decreases in the value of such Investment minus (ii) the amount of dividends or distributions received in connection with such Investment and any return of capital and any payment of principal received in respect of such Investment that in each case is received in cash or Cash Equivalents.

IRS” means the United States Internal Revenue Service.

Issuing Banks” means each Initial Issuing Bank, any other Lender approved as an Issuing Bank by the Administrative Agent and any Eligible Assignee to which a portion of the Letter of Credit Commitment hereunder has been assigned pursuant to Section 8.07 so long as each such Lender or each such Eligible Assignee expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as an Issuing Bank and notifies the Administrative Agent of its Applicable Lending Office and the amount of its Letter of Credit Commitment (which information shall be recorded by the Administrative Agent in the Register) pursuant to, in the case of a Lender, an agreement in form and substance satisfactory to the Administrative Agent and, in the case of an Eligible Assignee, an Assignment and Assumption substantially in the form of Exhibit C hereto, for so long as such Initial Issuing Bank, Lender or Eligible Assignee, as the case may be, shall have a Letter of Credit Commitment; provided,  however, that in all cases, no Lender (other than the Initial Issuing Banks) or Eligible Assignee shall qualify as or constitute an Issuing Bank hereunder unless it is a commercial bank organized under the laws of the United States or any state thereof, has capital and surplus of not less than $500,000,000 and is, so long as no Event of Default has occurred and is continuing, reasonably acceptable to the Borrower.  The Borrower shall have the right to request from time to time that any Lender or Eligible Assignee become

 

 

 

 

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an Issuing Bank hereunder, in which case the Administrative Agent and the Issuing Banks shall cooperate with the reasonable requests of the Borrower and assign a portion of their respective Unused Letter of Credit Commitments to such Lender or Eligible Assignee (in accordance with the provisions of this definition of Issuing Banks); provided that there shall be no more than five Issuing Banks at any time.  For purposes of this definition, “Unused Letter of Credit Commitment” means, with respect to any Issuing Bank, the obligations of such Issuing Bank to issue Letters of Credit to the Borrower in an amount equal to the excess of (a) the amount of its Letter of Credit Commitment over (b) the aggregate Available Amount of all Letters of Credit issued by such Issuing Bank.

Joint Lead Arrangers” has the meaning specified in the Preamble.

Joint Venture” means any Person (a) other than a Subsidiary of the Borrower in which the Borrower or its Restricted Subsidiaries (but not any Unrestricted Subsidiary) hold an ownership interest, (b) which is an unincorporated joint venture of the Borrower or any Restricted Subsidiary (but not any Unrestricted Subsidiary) or (c) any Subsidiary (but not any Unrestricted Subsidiary) of the Borrower which is not Wholly-Owned by the Borrower or any other Wholly-Owned Subsidiary of the Borrower.

JPMorgan” has the meaning specified in the Preamble.

L/C Cash Deposit Account” means an interest bearing cash deposit account to be established and maintained by each Issuing Bank, over which such Issuing Bank shall have sole dominion and control, upon terms as may be satisfactory to such Issuing Bank.

L/C Disbursement” means a payment or disbursement made by any Issuing Bank pursuant to a Letter of Credit.

L/C Exposure” means at any time the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time and (b) the aggregate amount of all L/C Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time.  The L/C Exposure of any Lender at any time shall equal its Pro Rata Share of the aggregate L/C Exposure at such time.

L/C Related Documents” has the meaning specified in Section 2.04(d)(ii)(A).

Lenders” means the Initial Lenders, each Eligible Assignee that shall become a Lender hereunder pursuant to Section 8.07, each Issuing Bank and the Swing Line Bank for so long as such Initial Lender or Person, as the case may be, shall be a party to this Agreement.

Letter of Credit Advance” means an advance made by any Issuing Bank or any Revolving Credit Lender pursuant to Section 2.03(c).

Letter of Credit Agreement” has the meaning specified in Section 2.03(a).

Letter of Credit Commitment” means, with respect to any Issuing Bank at any time, the amount set forth opposite such Issuing Bank’s name on Schedule I hereto under

 

 

 

 

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the caption “Letter of Credit Commitment” or, if such Issuing Bank has entered into an Assignment and Assumption, set forth for such Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 8.07(b)(iv) as such Issuing Bank’s “Letter of Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05.

Letter of Credit Facility” means, at any time, an amount equal to the least of (a) the aggregate amount of the Issuing Banks’ Letter of Credit Commitments at such time, (b) $125,000,000 and (c) the aggregate amount of the Revolving Credit Commitments, as such amount may be reduced at or prior to such time pursuant to Section 2.05.

Letters of Credit” has the meaning specified in Section 2.01(d).

LIBO Rate” means, with respect to any Eurodollar Rate Advance comprising part of the same Borrowing for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for U.S. Dollars for a period equal in length to such Interest Period as displayed on page LIBOR01 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period or, if for any reason such rate is not available for the applicable Interest Period but is available for periods that are shorter than and longer than such Interest Period, the rate per annum that results from interpolating on a linear basis between the rate for the longest available period that is shorter than such Interest Period and the shortest available period that is longer than such Interest Period, then the LIBO Rate shall be such interpolated screen rate (such rate, the “Interpolated Rate”); provided that if the LIBO Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

LIBO Screen Rate”  means, for any day and time, with respect to any Eurodollar Rate Advance for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for U.S. Dollars for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion), provided that if the LIBO Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security interest, production payment or other encumbrance, or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement or Finance Lease, upon or with respect to any property or

 

 

 

 

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asset of such Person (including in the case of stock, stockholder agreements, voting trust agreements and all similar arrangements); provided,  however,  “Lien” shall not include any negative pledge nor any royalty interest or overriding royalty interest under any lease, sublease or other similar agreement entered into in the ordinary course of business.

Liquidity” means, at any time, the amount equal to (a) unrestricted cash and Cash Equivalents held by the Loan Parties in which the Collateral Agent has a first priority perfected security interest, plus (b) the aggregate Unused Revolving Credit Commitments of all Revolving Credit Lenders (to the extent then available), plus (c) the aggregate amount available to be drawn by any Loan Party or a Receivables Financing Subsidiary under any permitted receivables securitization facility of any Loan Party (to the extent then available) minus (d) (x) if at such time no unpaid future distribution by the MLP has been yet publicly declared, the amount of the immediately prior cash distribution actually made by the MLP to its public unitholders multiplied by the Pro Ration Factor (as defined  below), (y) if any future distribution by the MLP has been publicly declared at such time but remains unpaid, the amount of the cash distribution so announced multiplied by the Pro Ration Factor, and (z) if it has been publicly announced that no distribution will be paid for at least 90 days or the distribution is being publicly suspended, zero (i.e., the amount of Liquidity will not be reduced by this clause (d)).   “Pro Ration Factor” means a fraction, the numerator of which is the number of days since the payment of the last cash distribution by the MLP and the denominator of which is (x) if at such time no unpaid future distribution by the MLP has been yet publicly declared, the number of days between the date of the last cash distribution of the MLP and date of the second to last cash distribution of the MLP and (y) any future distribution by the MLP has been publicly declared at such time but remains unpaid, the number of days between the date of the last cash distribution of the MLP and the date of payment of such future distribution.  In no event will the Pro Ration Factor exceed 100% .

Loan Documents” means (a) this Agreement and any amendment, waiver or consent under this Agreement in accordance with Section 8.01, (b) the Notes, (c) the Subsidiary Guaranty, (d) for all purposes of this Agreement other than Section 8.01, the Collateral Documents, (e) each Fee Letter, (f) each Letter of Credit Agreement and (g) all other agreements and instruments which, by their express terms, provide that such agreements or instruments constitute a “Loan Document” hereunder.

Loan Parties” means the Borrower and the Subsidiary Guarantors.

Maintenance Cap Ex” means Borrower’s and its Restricted Subsidiaries’ annual (or quarterly, if applicable) average estimated capital expenditures required to maintain, over the long-term, the operating capacity of their capital assets based on estimates developed by management upon a five-year planning horizon and publicly communicated by management from time to time.

Margin Stock” has the meaning specified in Regulation U.

Material Acquired Real Properties” means a real property or group of related real properties, acquired or leased, by the Borrower or its Restricted Subsidiaries after the Effective Date in a single transaction or a series of related transactions involving a single

 

 

 

 

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seller, or affiliates of such seller, that individually or in the aggregate have a fair market value reasonably estimated by the Borrower to be equal to, or in excess of, $5,000,000 as of the date of acquisition or lease.

Material Adverse Change” means any material adverse change in the business, operations, affairs, financial condition, assets or properties of the Borrower and its Restricted Subsidiaries, taken as a whole.

Material Adverse Effect” means a material adverse effect on (a) the business, operations, affairs, financial condition, assets or properties of the Borrower and its Restricted Subsidiaries taken as a whole, (b) the ability of the Borrower to perform its payment obligations, its obligations under Article V or any other material obligations under any Loan Document to which it is a party, (c) the ability of any Subsidiary Guarantor or MLP to perform its payment obligations or other material obligations under the Subsidiary Guaranty or this Agreement, as applicable, or (d) the validity or enforceability of any Loan Document.

Minerals Subsidiary” means any (a) Subsidiary of the Borrower whose business activities exclusively (except as set forth in the proviso immediately below) relate to the mining, exploration, production, transportation, sale or marketing of oil and gas minerals or mineral rights and/or the leasing or licensing of oil and gas minerals or mineral rights to Persons engaged in the mining, exploration, production, transportation, sale or marketing of oil and gas and/or investing in Persons engaged in any of the foregoing activities; provided, that the Subsidiaries of the Borrower otherwise qualifying as Minerals Subsidiaries may own assets or conduct other business activities only to the extent such other assets and business activities in the aggregate do not at any time exceed 5% of any of (i) the total assets, (ii) the EBITDA or (iii) the net income of such Subsidiaries (each calculated on a consolidated stand alone basis of such Subsidiary and its Subsidiaries), individually for each Subsidiary and, in addition, in the aggregate for all such Subsidiaries, or (b) Subsidiary of the Borrower that is a holding company to one or more direct or indirect Subsidiaries described in immediately preceding clause (a), has no direct or indirect ownership interest in any Capital Stock of any Person (other than (i) a direct or indirect ownership interest in the Capital Stock of one or more Subsidiaries described in immediately preceding clause (a) or (ii) a direct or indirect ownership interest in the Capital Stock of any other Person whose business activities exclusively (except as set forth in the proviso immediately below) relate to the mining, exploration, production, transportation, sale or marketing of oil and gas minerals or mineral rights and/or the leasing or licensing of oil and gas minerals or mineral rights to Persons engaged in the mining, exploration, production, transportation, sale or marketing of oil and gas) and has no other material assets, business activities or liabilities of any kind whatsoever; provided, that the Subsidiaries of the Borrower otherwise qualifying as Minerals Subsidiaries may own assets or conduct other business activities only to the extent such other assets and business activities in the aggregate do not at any time exceed 5% of any of (i) the total assets, (ii) the EBITDA or (iii) the net income of such Subsidiaries (each calculated on a consolidated stand alone basis of such Subsidiary and its Subsidiaries), individually for each Subsidiary and, in addition, in the aggregate for all such Subsidiaries.

 

 

 

 

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Mines” means the mining complexes described on Schedule 1.01(b) hereto that are owned, leased or operated by the Borrower or any of its Restricted Subsidiaries, any Reactivated Mining Facility, and all additional parcels and tracts of real property acquired by any Loan Party, that are either associated with the active mining complexes described on Schedule 1.01(b) or associated with new mining complexes acquired by Borrower, pursuant to an acquisition permitted under the terms hereof after the Effective Date.

Mining Facilities” means the Mines and the related facilities and assets.

Mining Leases” means each contract, agreement or lease to which any Loan Party is a party granting such Loan Party an interest in coal from the property that is the subject of such contract, lease or agreement.

MLP” has the meaning specified in the Preamble.

MLP Agreement” means the Fourth Amended and Restated Agreement of Limited Partnership of the MLP, dated and effective as of July 28, 2017, as amended by Amendment No. 1 dated February 22, 2018, Amendment No. 2 dated May 31, 2018 and Amendment No. 3, dated June 1, 2018, as the same may be further amended after the date hereof, to the extent permitted under the Loan Documents.

Moody’s” means Moody’s Investors Service, Inc.

Mortgage Amendment” has the meaning Specified in Section 5.01(p).

Mortgage Policies”  has the meaning specified in Section 5.01(i)(iv)(B).

Mortgaged Property” means the right, title and interest of the Borrower and its Restricted Subsidiaries as of the date hereof in (a) the real property, including leasehold interests, described in the Existing Mortgages, and (b) each other real property, if any, which shall be subject to a mortgage delivered after the Effective Date pursuant to Section 5.01(i), as applicable; provided that in no event shall any Excluded Asset or Excluded Property constitute Mortgaged Property.

Mortgages” has the meaning specified in Section 5.01(i)(iv).

Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

Multiple Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

 

 

 

 

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New Material Subsidiary” means any Domestic Subsidiary (other than (A) any Unrestricted Subsidiary, (B) any Receivables Financing Subsidiary and (C) any other Subsidiary that is formed solely for the purpose of acting as a captive insurance company, including the Insurance Subsidiary) that is newly-formed or newly-acquired, directly or indirectly, by the Borrower having total assets, either (x) as reflected on its balance sheet as of any date of determination or (y) with reference to its fair market value as reasonably determined by the Borrower in good faith, equal to or in excess of $37,500,000 as of such date of determination, as determined in accordance with GAAP.

Non-Consenting Lender” means any Lender that does not approve any (i) consent, waiver or amendment that (x) requires the approval of all or all affected Lenders in accordance with the terms of Section 8.01 and (y) has been approved by the Required Lenders or (ii) request by the Borrower for an extension of the Termination Date.

Non-Extending Lender”  means each Lender listed as a “Non-Extending Lender” on Schedule I hereto, unless and until such Lender has elected to become an Extending Lender, by notice to the Borrower and the Administrative Agent, subject to the Borrower’s prior consent.

Note” means a Revolving Credit Note.

Notice of Borrowing” has the meaning specified in Section 2.02(a).

Notice of Issuance” has the meaning specified in Section 2.03(a).

Notice of Renewal” has the meaning specified in Section 2.01(d).

Notice of Swing Line Borrowing” has the meaning specified in Section 2.02(b).

Notice of Termination” has the meaning specified in Section 2.01(d).

NPL” means the National Priorities List under CERCLA.

NYFRB” means the Federal Reserve Bank of New York.

NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a Federal funds broker of recognized standing selected by it; provided,  further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Obligation” means, with respect to any Transaction Party, any payment, performance or other obligation of such Transaction Party or any of the Borrower’s Restricted Subsidiaries of any kind arising under the Loan Documents or otherwise with respect to any Letter of Credit, Secured Cash Management Agreement or Secured Hedge

 

 

 

 

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Agreement, including, without limitation, any liability of such Transaction Party on any claim, whether or not the right of any creditor to payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, absolute or contingent, direct or indirect, matured, disputed, undisputed, legal, equitable, secured or unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 6.01(f), including without limitation, (a) the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, attorneys’ fees and disbursements, indemnities and other amounts payable by such Transaction Party under any Loan Document and (b) the obligation of such Transaction Party to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Transaction Party.  Notwithstanding the foregoing, in the case of any Excluded Swap Guarantor, “Obligations” shall not include Excluded Swap Obligations of such Excluded Swap Guarantor.

Open Year” has the meaning specified in Section 4.01(p)(ii).

Other Connection Taxes” means, with respect to a Lender or the Administrative Agent, Taxes imposed as a result of a present or former connection between such Lender or the Administrative Agent and the jurisdiction imposing such Tax (other than connections arising from such Lender or the Administrative Agent having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

Other Facilities” has the meaning specified in Section 4.01(z).

Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.17).

Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar Rate borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).

Parent” has the meaning specified in the Preamble.

Parent Company” means, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.

Parent Guaranteed Obligations” has the meaning specified in Section 9.01(a).

 

 

 

 

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Parent Guaranty” has the meaning specified in Section 9.01(b).

Pari Passu Liens” has the meaning specified in Section 5.02(a)(xviii).

Participant” has the meaning specified in Section 8.07(c).

Participant Register” has the meaning specified in Section 8.07(c).

Partnership Agreement” means the Amended and Restated Agreement of Limited Partnership, dated as of August 20, 1999, of the Borrower, as amended by Amendment No. 1 dated May 31, 2019.

PBGC” means the Pension Benefit Guaranty Corporation (or any successor).

Perfection Certificate” means a certificate substantially in the form of Exhibit F-1 hereto or any other form approved by the Administrative Agent or the Collateral Agent, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.

Perfection Certificate Supplement” means a certificate supplement substantially in the form of Exhibit F-2 hereto or any other form approved by the Administrative Agent or the Collateral Agent.

Permitted Encumbrance” has the meaning given to such term (or any substantially similar term) in the Mortgages.

Permitted Holders” means (i) Joseph W. Craft III, his estate, spouse, heirs, lineal descendants, legatees, legal representatives (in their capacities as such) or the trustee (in its capacity as such) of a bona fide trust of which one or more of the foregoing are the exclusive beneficiaries thereof and (ii) any entity controlled, directly or indirectly, by any Persons referred to in the preceding clause (i), whether through the ownership of voting securities, by contract or otherwise.

Permitted Junior Refinancing Debt” means any secured or unsecured Debt of the Loan Parties issued, incurred or otherwise obtained (including by means of the extension or renewal of Existing Debt) in exchange for, or to extend, renew, replace, repurchase, retire, defease or otherwise refinance, in whole or part, the Senior Notes or any then existing Permitted Junior Refinancing Debt; provided that (a) such Debt shall not have a greater principal amount than the principal amount (or accreted value, if applicable) of the Senior Notes or other Debt so refinanced plus accrued interest, fees, premiums (if any) and penalties thereon and fees and expenses associated with such refinancing, (b) such Debt is (i) if secured, secured by Liens on (x) the Collateral that are junior to the Liens on the Collateral securing the Obligations and/or (y) property of Persons other than the Borrower or any Loan Party, (ii) not secured by any property or assets of any Loan Party other than the Collateral and (iii) not guaranteed by Subsidiaries of the Borrower other than the Subsidiary Guarantors, (c) such Debt does not mature or have scheduled amortization or scheduled payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (other than customary offers to repurchase upon a

 

 

 

 

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change of control, asset sale or casualty event and customary acceleration rights after an event of default), prior to the date that is the later of (x) July 9, 2024 and (y) 90 days after the latest Termination Date applicable to the Facilities at the time such Debt is incurred, (d) the security agreements (if such debt is secured by the Collateral) and guarantees (if such Debt is guaranteed by one or more Restricted Subsidiaries of the Borrower) of the Borrower and its Restricted Subsidiaries relating to such Debt have terms not more favorable to the respective creditors than the terms of the Collateral Documents and the Subsidiary Guaranty (with such differences as are appropriate to reflect the nature of such Permitted Junior Refinancing Debt and any other differences reasonably satisfactory to the Administrative Agent or the Collateral Agent) and (e) if such Debt is secured by the Collateral, a Representative acting on behalf of the holders of such Debt shall have become party to, or otherwise be subject to the provisions of, the Second Lien Intercreditor Agreement.

Permitted Liens” means each of the following:

(a)        Liens for property taxes, assessments or other governmental charges which are not yet due and payable and delinquent or the validity of which is being contested in good faith in compliance with Section 5.01(b);

(b)        statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the amount, applicability or validity thereof is being contested by the Borrower or such Restricted Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Borrower or a Restricted Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of the Borrower or such Restricted Subsidiary;

(c)        Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers’ compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Finance Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;

(d)        any attachment or judgment Lien for the payment of money in an aggregate amount not to exceed $10,000,000; provided that the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are contested by the Borrower or such Restricted Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Borrower or a Restricted Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of the Borrower or such Restricted Subsidiary; and

(e)        leases, subleases, licenses and rights of use granted to others in the ordinary course of business, zoning restrictions, easements, reservations, provisions, covenants,

 

 

 

 

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conditions, waivers, restrictions on the use of property or irregularities of title that were not incurred in connection with and do not secure Debt (and with respect to leasehold interests, mortgages, obligations, liens and other encumbrances incurred, created, assumed or permitted to exist and arising by, through or under a landlord or owner of the leased property, with or without consent of the lessee), and not interfering with the ordinary conduct of the business of the Borrower or any of its Restricted Subsidiaries; provided that such Liens do not, in the aggregate, materially detract from the value of such property or adversely affect the use of such property for its intended purpose.

Person” means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.

Plan” means a Single Employer Plan or a Multiple Employer Plan.

Preferred Stock” of any Person means any class of Capital Stock of such Person that is preferred over any other class of Capital Stock of such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such Person.

Prime Rate” means the rate of interest per annum publicly announced from time to time by JPMorgan as its prime rate in effect at its office located at 270 Park Avenue, New York, New York; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” means, with respect to compliance with any test or covenant hereunder, that all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test or covenant:  (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (i) in the case of a sale, transfer or other disposition of all or substantially all Capital Stock in any Subsidiary of the Borrower or any division, product line, or facility used for operations of the Borrower or any of its Subsidiaries, shall be excluded, and (ii) in the case of an acquisition permitted hereunder or Investment described in the definition of “Specified Transaction,” shall be included, (b) any retirement, cancellation or repayment of Debt and (c) any incurrence, prepayment or redemption of Debt by the Borrower or any of the Restricted Subsidiaries in connection therewith (it being agreed  that if such Debt has a floating or formula rate, such Debt shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Debt as at the relevant date of determination).

Pro Forma Entity” has the meaning provided in the definition of the term “Acquired Consolidated Cash Flow.”

Pro Rata Share” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Lender’s Commitments under the applicable Facility or Facilities at such time  and the

 

 

 

 

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denominator of which is the amount of the aggregate Commitments under the applicable Facility or Facilities at such time; provided that if such Commitments have been terminated, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.

Prudent Operating Practice” means the mining practices, methods and acts that would be employed by a reasonable and prudent mining operator having assets and operations similar in size and scope to the Borrower and its Restricted Subsidiaries, using mining equipment and techniques in the conduct of diligent and safe mining operations with due regard for all applicable requirements of laws.

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

Reactivated Mining Facility” means any inactive or closed mining facility identified on Schedule 1.01(a) hereof which is reopened or reactivated for use by the Borrower or any Restricted Subsidiary after the Effective Date and all additional parcels and tracts of real property that are associated with such reopened or reactivated facility.

Receivables Financing Subsidiary” means any Subsidiary of the Borrower that is formed solely for the purpose of engaging in, and engages in, one or more receivables financing transaction permitted by Section 5.02(b)(iii)(H).

Register” has the meaning specified in Section 8.07(b)(iv).

Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.

Related Documents” means the Partnership Agreement and the MLP Agreement.

Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.

Representative” means with respect to any series of Permitted Junior Refinancing Debt or Debt permitted under Section 5.02(b)(i)(D)(ii) or Debt permitted under Section 5.02(b)(i)(E), the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Debt is issued, incurred or otherwise obtained, as the case may be, and each of their permitted successors in such capacities.

 

 

 

 

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Repurchase Agreement” means any written agreement:

(a)        that provides for (i) the transfer of one or more United States Governmental Securities in an aggregate principal amount at least equal to the amount of the Transfer Price (defined below) to the Borrower or any of its Restricted Subsidiaries from an Acceptable Bank or an Acceptable Broker-Dealer against a transfer of funds (the “Transfer Price”) by the Borrower or such Restricted Subsidiary to such Acceptable Bank or Acceptable Broker-Dealer, and (ii) a simultaneous agreement by the Borrower or such Restricted Subsidiary, in connection with such transfer of funds, to transfer to such Acceptable Bank or Acceptable Broker-Dealer the same or substantially similar United States Governmental Securities for a price not less than the Transfer Price plus a reasonable return thereon at a date certain not later than 365 days after such transfer of funds,

(b)        in respect of which the Borrower or such Restricted Subsidiary shall have the right, whether by contract or pursuant to applicable law, to liquidate such agreement upon the occurrence of any default thereunder, and

(c)        in connection with which the Borrower or such Restricted Subsidiary, or an agent thereof, shall have taken all action required by applicable law or regulations to perfect a Lien in such United States Governmental Securities.

Required Lenders” means, at any time, Lenders owed or holding at least a majority in interest of the sum of (a) the aggregate principal amount of the Advances outstanding at such time, (b) the aggregate Available Amount of all Letters of Credit outstanding at such time and (c) the aggregate Unused Revolving Credit Commitments at such time; provided,  however, that if any Lender shall be a Defaulting Lender at such time, there shall be excluded from the determination of Required Lenders at such time (i) the aggregate principal amount of the Advances owing to such Lender (in its capacity as a Lender) and outstanding at such time, (ii) such Lender’s Pro Rata Share of the aggregate Available Amount of all Letters of Credit outstanding at such time and (iii) the Unused Revolving Credit Commitment of such Lender at such time.  For purposes of this definition, the aggregate principal amount of Swing Line Advances owing to the Swing Line Bank and of Letter of Credit Advances owing to any Issuing Bank and the Available Amount of each Letter of Credit shall be considered to be owed to the Revolving Credit Lenders ratably in accordance with their respective Revolving Credit Commitments.

Responsible Officer” means any officer of any Loan Party or any of its Restricted Subsidiaries.

Restricted Payment” has the meaning set forth in Section 5.02(g).

Restricted Subsidiary” means any Subsidiary of the Borrower that has not been designated by the Borrower as an Unrestricted Subsidiary pursuant to and in compliance with the covenant described under Section 5.01(q) or is not, as of the Effective Date, already designated as an Unrestricted Subsidiary.  Any such designation may be revoked by the Borrower subject to the provisions of Section 5.01(q).

Revolving Credit Advance” has the meaning specified in Section 2.01(b).

 

 

 

 

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Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Advances of the same Type made by the Revolving Credit Lenders.

Revolving Credit Commitment” means, with respect to any Revolving Credit Lender (a) the amount set forth opposite such Revolving Credit Lender’s name on Schedule I hereto under the caption “Revolving Credit Commitment” or (b) if such Revolving Credit Lender has entered into one or more Assignment and Assumptions, the amount set forth for such Revolving Credit Lender in the Register maintained by the Administrative Agent pursuant to Section 8.07(b)(iv) as such Revolving Credit Lender’s “Revolving Credit Commitment”, in each case, as such amount may be reduced or terminated, as the case may be, at or prior to such time pursuant to Section 2.05.

Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time, as such amount may be reduced or terminated, as the case may be, at or prior to such time pursuant to Section 2.05.

Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit Commitment at such time, and if the Revolving Credit Commitments have been terminated or expired, then any Lender that is owed or then holds any outstanding Revolving Credit Advance or participations in or funding obligations in respect of any Letter of Credit.

Revolving Credit Note” means a promissory note of the Borrower payable to the order of any Revolving Credit Lender, issued upon request by such Revolving Credit Lender pursuant to Section 2.16(a), in substantially the form of Exhibit A-2, evidencing the aggregate indebtedness of the Borrower to such Revolving Credit Lender resulting from the Revolving Credit Advances, Letter of Credit Advances and Swing Line Advances made by such Revolving Credit Lender.

S&P” means S&P Global Ratings.

Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (on the Effective Date, Crimea, Cuba, Iran, North Korea, Sudan and Syria).

Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b) or (d) any Person otherwise the subject of any Sanctions.

Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the

 

 

 

 

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Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom.

Second Lien Intercreditor Agreement” means a “junior lien” intercreditor agreement among the Collateral Agent and one or more Representatives for holders of Permitted Junior Refinancing Debt or Debt permitted under Section 5.02(b)(i)(D)(ii), as applicable, in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Required Lenders (it being understood and agreed that the majority of the holders of outstanding Debt under the Facilities shall direct the “controlling representative” for purposes of exercising remedies in respect of the Collateral).

Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between the Borrower or any of its Restricted Subsidiaries and any Cash Management Bank.

Secured Hedge Agreement” means any interest rate Swap Contract permitted under Section 5.02 that is entered into by and between the Borrower or any of its Restricted Subsidiaries and any Hedge Bank.

Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent or the Collateral Agent from time to time pursuant to Section 7.01, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.

Securities Act” means the Securities Act of 1933, as amended from time to time.

Security” has the meaning set forth in Section 2(a)(1) of the Securities Act.

Security Agreement” has the meaning set forth in Section 3.01(a)(iv).

Security Agreement Supplement” has the meaning specified in the Security Agreement.

Senior Notes” means the 7.5% Senior Notes due May 1, 2025 issued by the Borrower pursuant to the Indenture in the original principal amount of $400,000,000, and shall include any senior note issued after the original issuance date in substitution for or replacement of, in whole or in part, any originally issued senior note.

 “Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

 

 

 

 

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SOFR” with respect to any day means the secured overnight financing rate published for such day by the NYFRB, as the administrator of the benchmark (or a successor administrator), on the Federal Reserve Bank of New York’s Website.

SOFR-Based Rate” means SOFR, Compounded SOFR or Term SOFR.

Sold Entity or Business” has the meaning provided in the definition of the term “Consolidated Cash Flow”.

Solvency Certificate” has the meaning set forth in Section 3.01(a)(xiv).

Solvent” and “Solvency” mean, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

Special General Partner” means Alliance Resource Partners, L.P., a  Delaware limited partnership, together with its successors and permitted assigns as the “special general partner” of the Borrower.

Special Letters of Credit” has the meaning specified in Section 2.01(d).

Specified Transaction” means, with respect to any period, any Investment, any disposition of assets, incurrence, prepayment, redemption, retirement, cancellation or repayment of Debt, Restricted Payments, Subsidiary designation (whether as a Restricted Subsidiary or an Unrestricted Subsidiary), or other event that by the terms of this Agreement requires “Pro Forma Compliance” with a test or covenant hereunder or requires such test or covenant to be calculated on a “Pro Forma Basis.”

Standby Letter of Credit” means any Letter of Credit issued under the Letter of Credit Facility, other than a Trade Letter of Credit.

Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, joint venture, association, trust or other entity of which (or in which) more than 50% of (a) the issued and outstanding Capital Stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time Capital Stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interests in the capital or profits of such partnership, limited liability company, joint venture or association

 

 

 

 

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with ordinary voting power to elect a majority of the board of directors (or persons performing similar functions) of such partnership, limited liability company, joint venture or association, or (c) the beneficial interests in such trust or other entity with ordinary voting power to elect a majority of the board of trustees (or persons performing similar functions) of such trust or other entity, is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its Subsidiaries, or by one or more of such Person’s other Subsidiaries.

Subsidiary Guarantors” means the Subsidiaries of the Borrower listed on Schedule II hereto and each other Subsidiary of the Borrower that shall be required to execute and deliver a guaranty pursuant to Section 5.01(i) or Section 5.01(r).

Subsidiary Guaranty” has the meaning specified in Section 3.01(a)(iii).

Surviving Debt” means Debt of each Loan Party and its Restricted Subsidiaries outstanding immediately before and after giving effect to the initial Borrowing.

Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

Swap Obligations” means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

Swaps” means, with respect to any Person, payment obligations with respect to interest rate swaps, currency or commodity swaps and hedging obligations obligating such Person to make payments, whether periodically or upon the happening of a contingency.  For the purposes of this Agreement, the amount of the obligation under any Swap shall be the amount determined in respect thereof as of the end of the then most recently ended fiscal quarter of such Person, based on the assumption that such Swap had terminated at the end of such fiscal quarter, and in making such determination, if any agreement relating to such Swap provides for the netting of amounts payable by and to such Person thereunder or if any such agreement provides for the simultaneous payment of amounts by and to such

 

 

 

 

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Person, then in each such case, the amount of such obligation shall be the net amount so determined.

Swing Line Advance” means an advance made by (a) the Swing Line Bank pursuant to Section 2.01(c) or (b) any Revolving Credit Lender pursuant to Section 2.02(b).

Swing Line Bank” means JPMorgan.

Swing Line Borrowing” means a borrowing consisting of a Swing Line Advance made by the Swing Line Bank pursuant to Section 2.01(c) or the Revolving Credit Lenders pursuant to Section 2.02(b).

Swing Line Commitment” means, with respect to the Swing Line Bank, the amount of the Swing Line Facility set forth in Section 2.01(c), as such amount may be reduced or terminated at or prior to such time pursuant to Section 2.05.

Swing Line Facility” has the meaning specified in Section 2.01(c).

Tax Affiliate” means, with respect to any Loan Party or any of its Subsidiaries, an Affiliate that is a member of a consolidated, combined, unitary or similar Tax group which includes any such Person.

Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

Termination Date” means with respect to the Revolving Credit Commitments, the Letter of Credit Commitment, the Swing Line Commitment and the Revolving Credit Facility, the earlier of (i) (x) for each Non-Extending Lender, May 23, 2021, and (y) for each Extending Lender, March 9, 2024 and (ii) the date of termination in whole of the Revolving Credit Commitments, the Letter of Credit Commitment and the Swing Line Commitment pursuant to Section 2.05 or 6.01.

Trade Letter of Credit” means any Letter of Credit that is issued under the Letter of Credit Facility for the benefit of a supplier of Inventory or raw materials or supplies (including, without limitation, fuel, spare parts or other materials used in connection with the operation of the business of the Borrower and its Restricted Subsidiaries) to the Borrower or any of its Restricted Subsidiaries to effect payment for such Inventory or raw materials or supplies.

Transaction” means, collectively, (a) the entering into by the Transaction Parties of the Loan Documents on the Effective Date, (b) the creation or reaffirmation of Liens pursuant to the Collateral Documents on the Effective Date, (c) the making of the Advances

 

 

 

 

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and the issuance of the Letters of Credit under this Agreement, and (d) the payment of the fees and expenses incurred in connection with the consummation of the foregoing.

Transaction Documents” means, collectively, the Loan Documents and the Related Documents.

Transaction Parties” means, collectively, the Loan Parties and MLP.

Transfer” means, with respect to any Person, any transaction in which such Person sells, conveys, abandons, transfers, leases (as lessor), or otherwise disposes of any of its assets; provided,  however,  that “Transfer” shall not include (a) the granting of any Liens permitted to be granted pursuant to this Agreement, (b) any transfer of assets permitted pursuant to Section 5.02(d), (c) the making of any Restricted Payment permitted pursuant to Section 5.02(g) or (d) the making of any Investments permitted pursuant to Section 5.02(f).

Type” refers to the distinction between Advances bearing interest at the Base Rate and Advances bearing interest at the Eurodollar Rate.

UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York, provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment; provided that, if the Unadjusted Benchmark Replacement as so determined would be less than zero, the Unadjusted Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.

United States Governmental Security” means any direct obligation of, or obligation guaranteed by, the United States of America, or any agency controlled or supervised by or acting as an instrumentality of the United States of America pursuant to authority granted by the Congress of the United States of America, so long as such obligation or guarantee shall have the benefit of the full faith and credit of the United States of America which shall have been pledged pursuant to authority granted by the Congress of the United States of America.

U.S. Tax Compliance Certificate” has the meaning specified in Section 2.12(e)(ii)(B)(3).

Unrestricted Subsidiary” means any Subsidiary of the Borrower listed on Schedule 5.01(q) and any Subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary pursuant to Section 5.01(q) subsequent to the Effective Date and any Subsidiary of an Unrestricted Subsidiary, in each case until such Unrestricted Subsidiary becomes a Restricted Subsidiary pursuant to Section 5.01(q).

 

 

 

 

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Unused Revolving Credit Commitment” means, with respect to any Revolving Credit Lender at any time (a) such Revolving Credit Lender’s Revolving Credit Commitment at such time minus (b) the sum of (i) the aggregate principal amount of all Revolving Credit Advances, Swing Line Advances and Letter of Credit Advances made by such Revolving Credit Lender (in its capacity as a Revolving Credit Lender and not as the Swing Line Bank or an Issuing Bank) and outstanding at such time plus (ii) such Revolving Credit Lender’s Pro Rata Share of (A) the aggregate Available Amount of all Letters of Credit outstanding at such time, (B) the aggregate principal amount of all Letters of Credit Advances made by the Issuing Banks pursuant to Section 2.03(c) and outstanding at such time and (C) the aggregate principal amount of all Swing Line Advances made by the Swing Line Bank pursuant to Section 2.01(d) and outstanding at such time.

Voting Stock” means, (a) Securities of any class or classes, the holders of which are ordinarily, in the absence of contingencies, entitled to elect a majority of the directors (or persons performing similar functions) or (b) in the case of a partnership, limited liability company or joint venture, interests in the profits or capital thereof entitling the holders of such interests to approve major business actions.

Wholly Owned” means, at any time, with respect to any Subsidiary of any Person, a Subsidiary of which at least ninety-eight percent (98%) of all of the equity interests (except directors’ qualifying shares) and Voting Stock are owned by any one or more of such Person and such Person’s other Wholly Owned Subsidiaries at such time.

Withdrawal Liability” has the meaning specified in Part I of Subtitle E of Title IV of ERISA.

Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

SECTION 1.02        Computation of Time Periods; Rules of Interpretation; Other Definitional Provisions.    In this Agreement and the other Loan Documents in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.  The terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.”  The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular provision of this Agreement or such other Loan Document, as the case may be.  References in the Loan Documents to any agreement, document or contract, unless otherwise specified, shall mean and be a reference to such agreement or contract as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms and, if applicable, the Loan Documents.  References in the Loan Documents to any Person shall mean and be a reference to such Person and its permitted successors and assigns.

 

 

 

 

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SECTION 1.03        Accounting Terms; Pro Forma Basis.    (a)  All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles in effect from time to time (“GAAP”).    Notwithstanding anything to the contrary contained in this Section 1.03 or in the definition of “Finance Lease Obligations,” in accounting for any lease (or similar arrangement conveying the right to use) pursuant to Financial Accounting Standards Board Accounting Standards, Leases (“ASC 842”) that would require treating any such lease (or similar arrangement) as a finance lease right to use asset and corresponding finance lease obligation where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2018, such lease shall not be considered a Finance Lease, and all calculations and deliverables under Section 5.04 shall be made or delivered, as applicable, in accordance therewith.  Notwithstanding any other provision contained herein, the definitions set forth in this Agreement and any financial calculations required by the Loan Documents shall be computed to exclude all liabilities related to operating leases as defined by ASC 842 (or any successor provision), which shall be excluded from the definition of “Debt” and payments related to operating leases shall not be included in interest expenses in part or in whole.  When used herein “term of the Facilities” or similar words refers to the period from the Effective Date to the latest Termination Date.

(b)        Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this Agreement with respect to any period during which any Specified Transaction occurs, the Consolidated Debt to Consolidated Cash Flow Ratio, the Interest Coverage Ratio and the Consolidated First Lien Debt to Consolidated Cash Flow Ratio shall each be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis.

SECTION 1.04        Interest Rates; LIBOR Notification.    The interest rate on Eurodollar Rate Advances is determined by reference to the LIBO Rate, which is derived from the London interbank offered rate.  The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market.  In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate.  As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurodollar Rate Advances.  In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate.  Upon the occurrence of a Benchmark Transition Event or an Early Opt-In Election, Section 2.07(d)(ii) provides a mechanism for determining an alternative rate of interest.  The Administrative Agent will promptly notify the Borrower, pursuant to Section 2.07(d)(iv), of any change to the reference rate upon which the interest rate on Eurodollar Rate Advances is based.  However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any such alternative, successor or

 

 

 

 

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replacement rate implemented pursuant to Section 2.07(d)(ii), whether upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to Section 2.07(d)(iii)), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.

SECTION 1.05        Divisions.  For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws):  (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Capital Stock at such time.

ARTICLE II

AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT

SECTION 2.01        The Advances and the Letters of Credit.

(a)           [Intentionally Omitted].

(b)           The Revolving Credit Advances.  Each Revolving Credit Lender severally agrees, on the terms and conditions hereinafter set forth, to make advances (each, a “Revolving Credit Advance”) to the Borrower from time to time on any Business Day during the period from the Effective Date until the Termination Date for the Revolving Credit Facility applicable to such Lender in an amount for each such Advance not to exceed such Revolving Credit Lender’s Unused Revolving Credit Commitment at such time.  All “Revolving Credit Advances” outstanding under and as defined in, the Existing Credit Agreement on the Effective Date are deemed to be Revolving Credit Advances made and outstanding under this Agreement.  Each Revolving Credit Borrowing shall be in an aggregate amount of $1,000,000 or an integral multiple of $100,000 in excess thereof in the case of Base Rate Advances and in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof in the case of Eurodollar Rate Advances (other than, in the case of Base Rate Advances, a Revolving Credit Borrowing the proceeds of which shall be used solely to repay or prepay in full outstanding Swing Line Advances or outstanding Letter of Credit Advances, in which case such Base Rate Advances may be in an aggregate amount necessary to repay or prepay in full such Swing Line Advances or Letter of Credit Advances) and shall consist of Revolving Credit Advances made simultaneously by the Revolving Credit Lenders ratably according to their Revolving Credit Commitments.  Within the limits of each Revolving Credit Lender’s Unused Revolving Credit Commitment in effect from time to time, the Borrower may borrow under this Section 2.01(b), prepay pursuant to 2.06(a) and reborrow under this Section 2.01(b).

(c)        The Swing Line Advances.  The Borrower may request the Swing Line Bank to make, and the Swing Line Bank agrees to make, on the terms and conditions hereinafter set forth, Swing Line Advances to the Borrower from time to time on any Business Day during the

 

 

 

 

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period from the Effective Date until the Termination Date for the Revolving Credit Facility applicable to the Swing Line Bank (i) in an aggregate outstanding amount not to exceed at any time $15,000,000 (the “Swing Line Facility”) and (ii) in an amount for each such Swing Line Borrowing not to exceed the aggregate of the Unused Revolving Credit Commitments of the Revolving Credit Lenders at such time.  No Swing Line Advance shall be used for the purpose of funding the payment of principal of any other Swing Line Advance.  Each Swing Line Borrowing shall be in an amount of $500,000 or an integral multiple of $100,000 in excess thereof and shall be made as a Base Rate Advance.  Within the limits of the Swing Line Facility and within the limits referred to in clause (ii) above the Borrower may borrow under this Section 2.01(c), repay pursuant to Section 2.04(c) or prepay pursuant to 2.06(a) or Section 2.06(b) and reborrow under this Section 2.01(c).

(d)           The Letters of Credit.  Each Issuing Bank severally agrees, on the terms and conditions hereinafter set forth, to issue (or cause its Affiliate that is a commercial bank to issue on its behalf) letters of credit (together with the Existing Letters of Credit referred to in Section 2.03(f), the “Letters of Credit”) in U.S. dollars for the account of the Borrower (but in connection with the business of the Borrower or any of its Restricted Subsidiaries) from time to time on any Business Day during the period from the Effective Date until 30 days before the latest Termination Date for the Revolving Credit Facility in an aggregate Available Amount (i) for all Letters of Credit not to exceed at any time the Letter of Credit Facility at such time, (ii) for all Letters of Credit issued by such Issuing Bank not to exceed at any time such Issuing Bank’s Letter of Credit Commitment at such time and (iii) for each such Letter of Credit not to exceed the Unused Revolving Credit Commitments of the Revolving Credit Lenders at such time.  Notwithstanding the foregoing, if any L/C Exposure of any Non-Extending Lender exists on the Termination Date applicable to the Revolving Credit Commitments of such Non-Extending Lender then:  (i) the L/C Exposure of such Non-Extending Lender will, upon at least two (2) Business Days prior notice to the Borrower and the other Lenders by the Administrative Agent, and subject in any event to the limitation in the first proviso below, automatically be reallocated (effective on the day specified in such notice) among the Extending Lenders pro rata in accordance with their respective Revolving Credit Commitments; provided that (A) the Advances of each such Lender may not in any event exceed the Revolving Credit Commitment of such Lender as in effect at the time of such reallocation and (B) at the time of such reallocation, no Event of Default has occurred and is continuing; and (ii) to the extent that any portion (the “Unreallocated Portion”) of the Non-Extending Lender’s L/C Exposure cannot be so reallocated, whether by reason of the first proviso in clause (i) above or otherwise, the Borrower will, not later than three (3) Business Days after demand by the Administrative Agent, (A) Cash Collateralize the obligations of the Borrower to the Issuing Banks in respect of such L/C Exposure in an amount at least equal to the aggregate amount of the Unreallocated Portion of such L/C Exposure or (B) make other arrangements reasonably satisfactory to the Administrative Agent and the Issuing Banks to protect them against nonpayment by such Non-Extending Lender.  No Letter of Credit shall have an expiration date (including all rights of the Borrower or the beneficiary to require renewal) later than the earlier of (A) 30 days before the Termination Date for the Revolving Credit Facility for the Extending Lenders and (B)(I) in the case of a Standby Letter of Credit, one year after the date of issuance thereof, but may by its terms be renewable annually upon notice (a “Notice of Renewal”) given to the Issuing Bank that issued such Standby Letter of Credit and the Administrative Agent on or prior to any date for notice of renewal set forth in such Letter of Credit but in any event at least three Business Days prior to the date of the proposed renewal of such Standby Letter of Credit and

 

 

 

 

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upon fulfillment of the applicable conditions set forth in Article III unless such Issuing Bank has notified the Borrower (with a copy to the Administrative Agent) on or prior to the date for notice of termination set forth in such Letter of Credit but in any event at least 45 Business Days prior to the date of automatic renewal of its election not to renew such Standby Letter of Credit (a “Notice of Termination”) and (II) in the case of a Trade Letter of Credit, 30 days after the date of issuance thereof; provided that the terms of each Standby Letter of Credit that is automatically renewable annually shall (x) require the Issuing Bank that issued such Standby Letter of Credit to give the beneficiary named in such Standby Letter of Credit notice of any Notice of Termination, (y) permit such beneficiary, upon receipt of such notice, to draw under such Standby Letter of Credit prior to the date such Standby Letter of Credit otherwise would have been automatically renewed and (z) not permit the expiration date or the Available Amount (after giving effect to any renewal) of such Standby Letter of Credit in any event to be extended to a date later than 30 days before the Termination Date for the Revolving Credit Facility applicable to the Extending Lenders or in an Available Amount in excess of the Revolving Credit Commitments of the Extending Lenders.  Notwithstanding anything to the contrary in the immediately preceding sentence, Letters of Credit issued by any Issuing Bank may have expiration dates as mutually agreed upon by the Borrower and such Issuing Bank, but in any event no later than the sixth anniversary of the Effective Date (any such Letters of Credit with expiration dates after 30 days prior to the Termination Date for the Revolving Credit Facility, “Special Letters of Credit”).  If either a Notice of Renewal is not given by the Borrower or a Notice of Termination is given by the relevant Issuing Bank pursuant to the second immediately preceding sentence, such Standby Letter of Credit shall expire on the date on which it otherwise would have been automatically renewed; provided,  however, that even in the absence of receipt of a Notice of Renewal the relevant Issuing Bank may in its discretion, unless instructed to the contrary by the Administrative Agent or the Borrower, deem that a Notice of Renewal had been timely delivered and in such case, a Notice of Renewal shall be deemed to have been so delivered for all purposes under this Agreement.  Within the limits of the Letter of Credit Facility, and subject to the limits referred to above, the Borrower may request the issuance of Letters of Credit under this Section 2.01(d), repay any Letter of Credit Advances resulting from drawings thereunder pursuant to Section 2.03(c) and request the issuance of additional Letters of Credit under this Section 2.01(d).

SECTION 2.02        Making the Advances.       (a) Except as otherwise provided in 0 or Section 2.03, each Borrowing shall be made on notice, given not later than 12:00 noon (New York City time) on the third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate Advances, or the first Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the Borrower to the Administrative Agent, which shall give to each Appropriate Lender prompt notice thereof by telecopier.  Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed immediately in writing, or by telecopier, in substantially the form of Exhibit B hereto, specifying therein (i) the requested date of such Borrowing, (ii) the requested Type of Advances comprising such Borrowing, (iii) the requested aggregate amount of such Borrowing and (iv) in the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for each such Advance.  Each Appropriate Lender shall, before 12:00 noon (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing in accordance with the respective Commitments under the applicable Facility of such Lender and the other Appropriate Lenders. 

 

 

 

 

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After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower by crediting the Borrower’s Account; provided,  however, that, in the case of any Revolving Credit Borrowing, the Administrative Agent shall first make a portion of such funds equal to the aggregate principal amount of any Swing Line Advances and Letter of Credit Advances made by the Swing Line Bank or any Issuing Bank, as the case may be, and by any other Revolving Credit Lender and outstanding on the date of such Revolving Credit Borrowing, plus interest accrued and unpaid thereon to and as of such date, available to the Swing Line Bank or such Issuing Bank, as the case may be, and such other Revolving Credit Lenders for repayment of such Swing Line Advances and Letter of Credit Advances.

(b)     Each Swing Line Borrowing shall be made on notice, given not later than 12:00 noon (New York City time) on the date of the proposed Swing Line Borrowing, by the Borrower to the Swing Line Bank and the Administrative Agent.  Each such notice of a Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing, or by telecopier, specifying therein the requested (i) date of such Borrowing, (ii) amount of such Borrowing and (iii) maturity of such Borrowing (which maturity shall be no later than the thirtieth day after the requested date of such Borrowing).  The Swing Line Bank will make the amount of the requested Swing Line Advances available to the Administrative Agent at the Administrative Agent’s Account, in same day funds.  After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower by crediting the Borrower’s Account.  Upon written demand by the Swing Line Bank, with a copy of such demand to the Administrative Agent, each other Revolving Credit Lender shall purchase from the Swing Line Bank, and the Swing Line Bank shall sell and assign to each such other Revolving Credit Lender, such other Revolving Credit Lender’s Pro Rata Share of such outstanding Swing Line Advance as of the date of such demand, by making available for the account of its Applicable Lending Office to the Administrative Agent for the account of the Swing Line Bank, by deposit to the Administrative Agent’s Account, in same day funds, an amount equal to the portion of the outstanding principal amount of such Swing Line Advance to be purchased by such Revolving Credit Lender.  Each Revolving Credit Lender acknowledges and agrees that its obligation to purchase an assignment in Swing Line Advances is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or the termination of the Revolving Credit Commitments, and that each such payment shall be made without any off-set, abatement, withholding or reduction whatsoever.  The Borrower hereby agrees to each such sale and assignment.  Each Revolving Credit Lender agrees to purchase its Pro Rata Share of an outstanding Swing Line Advance on (A) the Business Day on which demand therefor is made by the Swing Line Bank; provided that notice of such demand is given not later than 12:00 noon (New York City time) on such Business Day or (B) the first Business Day next succeeding such demand if notice of such demand is given after such time.  Upon any such assignment by the Swing Line Bank to any other Revolving Credit Lender of a portion of a Swing Line Advance, the Swing Line Bank represents and warrants to such other Revolving Credit Lender that the Swing Line Bank is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance, the Loan Documents or any Loan Party.  If and to the extent that any Revolving Credit Lender shall not have so made the amount of such Swing Line Advance

 

 

 

 

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available to the Administrative Agent, such Revolving Credit Lender agrees to pay to the Administrative Agent forthwith on demand such amount together with interest thereon, for each day from the date of demand by the Swing Line Bank until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate.  If such Revolving Credit Lender shall pay to the Administrative Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Swing Line Advance made by such Revolving Credit Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day.

(c)        Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for the initial Borrowing hereunder or for any Borrowing if the aggregate amount of such Borrowing is less than $5,000,000 or if the obligation of the Appropriate Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.07(d),  Section 2.09(b)(iii) or Section 2.10(c) or (d) and (ii) Advances in respect of the Revolving Credit Facility may not be outstanding as part of more than eight separate Revolving Credit Borrowings in aggregate under such Facility.

(d)           Each Notice of Borrowing and each Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower.

(e)           Unless the Administrative Agent shall have received notice from an Appropriate Lender prior to the date of any Borrowing under a Facility under which such Lender has a Commitment that such Lender will not make available to the Administrative Agent such Lender’s ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection (a) or (b) of this Section 2.02, as the case may be, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount.  If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay or pay to the Administrative Agent forthwith on demand such corresponding amount and to pay interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid or paid to the Administrative Agent at (i) in the case of the Borrower, the interest rate applicable at such time under Section 2.07 to Advances comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate.  If such Lender shall pay to the Administrative Agent such corresponding amount, such amount so paid shall constitute such Lender’s Advance as part of such Borrowing for all purposes.

(f)           The failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.

SECTION 2.03        Issuance of and Drawings and Reimbursement Under Letters of Credit.    i)  Request for Issuance.  Each Letter of Credit shall be issued upon notice, given not later than 12:00 noon (New York City time) on the fifth Business Day prior to the date of the proposed issuance of such Letter of Credit, by the Borrower to any Issuing Bank, which shall give

 

 

 

 

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to the Administrative Agent and each Revolving Credit Lender prompt notice thereof by telecopier or electronic communication.  Each such notice of issuance of a Letter of Credit (a “Notice of Issuance”) shall be by telephone, confirmed immediately in writing, or telecopier or electronic communication, specifying therein the requested (i) name of the Issuing Bank, (ii) date of such issuance (which shall be a Business Day), (iii) Available Amount of such Letter of Credit, (iv) expiration date of such Letter of Credit, (v) name and address of the beneficiary of such Letter of Credit (which shall not, in any event be any Unrestricted Subsidiary) and (vi) form of such Letter of Credit, and shall be accompanied by such application and agreement for letter of credit as such Issuing Bank may specify to the Borrower for use in connection with such requested Letter of Credit (a “Letter of Credit Agreement”); provided that such Letter of Credit Agreement shall be subject to the provisions of Section 2.08.  If (A) the requested form of such Letter of Credit is acceptable to such Issuing Bank in its reasonable sole discretion and (B) such Issuing Bank has not received notice of a good faith objection to such issuance from the Required Lenders, such Issuing Bank will, upon fulfillment of the applicable conditions set forth in Article III, make such Letter of Credit available to the Borrower at its office referred to in Section 8.02 or as otherwise agreed with the Borrower in connection with such issuance.  In the event and to the extent that the provisions of any Letter of Credit Agreement shall conflict with this Agreement, the provisions of this Agreement shall govern.

(b)           Letter of Credit Reports.  Each Issuing Bank shall furnish (i) to the Administrative Agent on the first Business Day of each week a written report summarizing issuance and expiration dates of Letters of Credit issued by such Issuing Bank during the previous week and drawings during such week under all Letters of Credit issued by such Issuing Bank, (ii) to each Lender on the first Business Day of each month a written report summarizing issuance and expiration dates of Letters of Credit issued by such Issuing Bank during the preceding month and drawings during such month under all Letters of Credit issued by such Issuing Bank and (iii) to the Administrative Agent and each Lender on the first Business Day of each calendar quarter a written report setting forth the average daily aggregate Available Amount during the preceding calendar quarter of all Letters of Credit issued by such Issuing Bank.  A copy of each such report delivered pursuant to this clause (b) shall be delivered to the Borrower upon request by the Borrower.

(c)           Participations in Letters of Credit.  Upon the issuance of a Letter of Credit by any Issuing Bank under 1)a)i), such Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each Revolving Credit Lender, and each such Revolving Credit Lender shall be deemed, without further action by any party hereto, to have purchased from such Issuing Bank, a participation in such Letter of Credit in an amount for each Revolving Credit Lender equal to such Revolving Credit Lender’s Pro Rata Share of the Available Amount of such Letter of Credit, effective upon the issuance of such Letter of Credit.  In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay such Revolving Credit Lender’s Pro Rata Share of each L/C Disbursement made by such Issuing Bank and not reimbursed by the Borrower forthwith on the date due as provided in Section 2.04(d) on demand by the Administrative Agent by making available for the account of its Applicable Lending Office to the Administrative Agent for the account of such Issuing Bank by deposit to the Administrative Agent’s Account, in same day funds, an amount equal to such Revolving Credit Lender’s Pro Rata Share of such L/C Disbursement.  The Administrative Agent will promptly thereafter cause like funds to be distributed to the applicable Issuing Bank for the

 

 

 

 

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account of its Applicable Lending Office.  Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this Section 2.03(c) in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or the termination of the Revolving Credit Commitments, and that each such payment shall be made without any off-set, abatement, withholding or reduction whatsoever.  If and to the extent that any Revolving Credit Lender shall not have so made the amount of such L/C Disbursement available to the Administrative Agent, such Revolving Credit Lender agrees to pay to the Administrative Agent forthwith on demand such amount together with interest thereon, for each day from the date such L/C Disbursement is due pursuant to Section 2.04(c) until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate for its account or the account of such Issuing Bank, as applicable.  If such Revolving Credit Lender shall pay to the Administrative Agent such amount for the account of such Issuing Bank on any Business Day, such amount so paid in respect of principal shall constitute a Letter of Credit Advance made by such Revolving Credit Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of the Letter of Credit Advance made by such Issuing Bank shall be reduced by such amount on such Business Day.

(d)           Drawing and Reimbursement.  The payment by any Issuing Bank of a draft drawn under any Letter of Credit (other than with respect to Special Letters of Credit on and after the latest Termination Date for the Revolving Credit Facility) shall constitute for all purposes of this Agreement the making by such Issuing Bank of a Letter of Credit Advance, which shall be a Base Rate Advance, in the amount of such draft.  The Issuing Bank shall promptly notify the Administrative Agent of any such payment.

(e)           Failure to Make Letter of Credit Advances.  The failure of any Revolving Credit Lender to make the Letter of Credit Advance to be made by it on the date specified in Section 2.03(c) shall not relieve any other Revolving Credit Lender of its obligation hereunder to make its Letter of Credit Advance on such date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Letter of Credit Advance to be made by such other Revolving Credit Lender on such date.

(f)           Existing Letters of Credit.  As of the Effective Date, each Issuing Bank will be deemed to have sold and transferred an undivided interest and participation in respect of the Letters of Credit issued by it under the Existing Credit Agreement, which existing Letters of Credit are listed on Schedule III, and each Revolving Credit Lender hereunder will be deemed to have purchased and received, without further action on the part of any party, an undivided interest and participation in such Letters of Credit, based on such Revolving Credit Lender’s Pro Rata Share of the aggregate Available Amount of all Letters of Credit outstanding at such time.

SECTION 2.04        Repayment of Advances.  (a)  [Reserved]

(b)           Revolving Credit Advances.  (i)  The Borrower shall repay to the Administrative Agent for the ratable account of the Revolving Credit Lenders that are Non-Extending Lenders on the Termination Date for the Revolving Credit Facility applicable to Non-Extending Lenders the aggregate principal amount of the Revolving Credit Advances owing to Non-Extending Lenders then outstanding.

 

 

 

 

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(ii)        The Borrower shall repay to the Administrative Agent for the ratable account of the Revolving Credit Lenders that are Extending Lenders on the Termination Date for the Revolving Credit Facility applicable to such Extending Lenders the aggregate principal amount of the Revolving Credit Advances owing to such Extending Lenders then outstanding.

(c)        Swing Line Advances.  The Borrower shall repay to the Administrative Agent for the account of the Swing Line Bank and each other Revolving Credit Lender that has made a Swing Line Advance the outstanding principal amount of each Swing Line Advance made by each of them on the earlier of the maturity date specified in the applicable Notice of Swing Line Borrowing (which maturity shall be no later than the thirtieth day after the requested date of such Borrowing) and the Termination Date for the Revolving Credit Facility applicable to the Swing Line Bank.

(d)        Letter of Credit Advances.  (i) The Borrower shall repay to the Administrative Agent for the account of each Issuing Bank and each other Revolving Credit Lender that has made a Letter of Credit Advance on the earlier of demand and the Termination Date for the Revolving Credit Facility applicable to such Lender the outstanding principal amount of each Letter of Credit Advance made by each of them (it being understood and agreed that, subject to the satisfaction of the other provisions of this Agreement, a Letter of Credit Advance may be repaid prior to such Termination Date with the proceeds of a new Borrowing).

(ii)        The Obligations of the Borrower under this Agreement, any Letter of Credit Agreement and any other agreement or instrument between any Transaction Party and the Administrative Agent, Collateral Agent, Issuing Bank or any Lender relating to any Letter of Credit shall be unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement, such Letter of Credit Agreement and such other agreement or instrument under all circumstances, including, without limitation, the following circumstances:

(A)       any lack of validity or enforceability of any Loan Document, any Letter of Credit Agreement, any Letter of Credit or any other agreement or instrument relating thereto (all of the foregoing being, collectively, the “L/C Related Documents”);

(B)       any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations of any Transaction Party in respect of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents;

(C)       the existence of any claim, set-off, defense or other right that any Transaction Party may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for which any such beneficiary or any such transferee may be acting), any Issuing Bank or any other Person, whether in connection with the transactions contemplated by the L/C Related Documents or any unrelated transaction;

 

 

 

 

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(D)       any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

(E)       payment by any Issuing Bank under a Letter of Credit against presentation of a draft, certificate or other document that does not strictly comply with the terms of such Letter of Credit;

(F)        any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from the Guaranties or any other guarantee, for all or any of the Obligations of any Transaction Party in respect of the L/C Related Documents; or

(G)       any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including, without limitation, any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or a guarantor.

SECTION 2.05        Termination or Reduction of the Revolving Credit Commitments.     (a)        Optional. The Borrower may, upon at least three Business Days’ notice to the Administrative Agent, terminate in whole or reduce in part the unused portion of the Swing Line Facility and the Letter of Credit Facility and the Unused Revolving Credit Commitments; provided,  however, that each partial reduction of any such Facility (i) shall be in an aggregate amount of $5,000,000 (or in the case of the Swing Line Facility, $2,000,000) or an integral multiple of $1,000,000 (or in the case of the Swing Line Facility, $500,000) in excess thereof and (ii) shall be made ratably among the Appropriate Lenders in accordance with their Commitments with respect to such Facility.

(b)        Mandatory.  (i) The Letter of Credit Facility shall be permanently reduced from time to time on the date of each reduction in the Revolving Credit Facility by the amount, if any, by which the amount of the Letter of Credit Facility exceeds the Revolving Credit Facility after giving effect to such reduction of the Revolving Credit Facility.

(ii)        The Swing Line Facility shall be permanently reduced from time to time on the date of each reduction in the Revolving Credit Facility by the amount, if any, by which the amount of the Swing Line Facility exceeds the Revolving Credit Facility after giving effect to such reduction of the Revolving Credit Facility.

SECTION 2.06        Prepayments.  (a)  Optional.  The Borrower may, upon at least one Business Day’s notice in the case of Base Rate Advances and three Business Days’ notice in the case of Eurodollar Rate Advances, in each case to the Administrative Agent stating the Type of Advance to be prepaid, the proposed prepayment date and the aggregate principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding aggregate principal amount of the Advances comprising part of the same Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the aggregate principal amount prepaid; provided,  however, that (i) each partial prepayment shall be in an aggregate principal amount of $1,000,000 or an integral multiple of $100,000 in excess thereof in the case

 

 

 

 

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of Base Rate Advances and $5,000,000 or an integral multiple of $1,000,000 in excess thereof in the case of Eurodollar Rate Advances and (ii) if any prepayment of a Eurodollar Rate Advance is made on a date other than the last day of an Interest Period for such Advance, the Borrower shall also pay any amounts owing pursuant to Section 8.04(c).

(b)        Mandatory.  (i)  The Borrower shall, on each Business Day, prepay an aggregate principal amount of the Revolving Credit Advances comprising part of the same Borrowing, the Letter of Credit Advances and the Swing Line Advances in an amount equal to the amount by which (A) the sum of the aggregate principal amount of (I) the Revolving Credit Advances, (II) the Letter of Credit Advances and (III) the Swing Line Advances, in each case, then outstanding plus the aggregate Available Amount of all Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility on such Business Day.

(ii)        [Reserved]

(iii)      Prepayments of the Revolving Credit Facility made pursuant to clause (i) shall be first applied to prepay Letter of Credit Advances then outstanding until such Advances are paid in full, second applied to prepay Swing Line Advances then outstanding until such Advances are paid in full and third applied to prepay Revolving Credit Advances then outstanding comprising part of the same Borrowing until such Advances are paid in full.

(iv)       The Borrower shall, on the last day of each of the first three fiscal quarters and the last day of each fiscal year of the Borrower, prepay the principal amount of each Swing Line Borrowing in excess of $2,500,000 outstanding on such day.

(v)        All prepayments under this subsection (b) shall be made together with accrued interest to the date of such prepayment on the principal amount prepaid, together with any amounts owing pursuant to Section 8.04(c).

(c)        Letters of Credit.  The Borrower shall, on the day that is 30 days prior to the latest Termination Date for the Revolving Credit Facility applicable to the Extending Lenders, pay to the Administrative Agent for deposit in the applicable L/C Cash Deposit Accounts an amount sufficient to cause the aggregate amount on deposit in all L/C Cash Deposit Accounts to equal 105% of the aggregate Available Amount of all Letters of Credit (including, for the avoidance of doubt, Special Letters of Credit) then outstanding.  Upon the drawing of any such Letter of Credit, to the extent funds are on deposit in the applicable L/C Cash Deposit Account, such funds shall be applied to reimburse the applicable Issuing Bank to the extent permitted by applicable law, and if so applied, such reimbursement shall be deemed a repayment of the corresponding Letter of Credit Advance in respect of such Letter of Credit.  After all such Letters of Credit shall have expired or been fully drawn upon and all other Obligations of the Borrower with respect to such Letters of Credit shall have been paid in full, the balance, if any, in the L/C Cash Deposit Accounts in respect of such Letters of Credit shall be promptly returned to the Borrower.

SECTION 2.07        Interest.

 

 

 

 

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(a)        Scheduled Interest.  The Borrower shall pay interest on the unpaid principal amount of each Advance owing to each Lender from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:

(i)         Base Rate Advances.  During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the sum of (A) the Base Rate in effect from time to time plus (B) the Applicable Margin in respect of such Advance in effect from time to time, based on the Borrower’s Consolidated Debt to Consolidated Cash Flow Ratio as determined in accordance with the definition of Applicable Margin, payable in arrears quarterly on the last day of each fiscal quarter during such periods and on the date such Base Rate Advance shall be Converted or paid in full.

(ii)        Eurodollar Rate Advances.  During such periods as such Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for such Advance to the sum of (A) the Eurodollar Rate for such Interest Period for such Advance plus (B) the Applicable Margin in respect of such Advance in effect prior to the first day of such Interest Period, based on the Borrower’s Consolidated Debt to Consolidated Cash Flow Ratio as determined in accordance with the definition of Applicable Margin, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurodollar Rate Advance shall be Converted or paid in full.

(b)        Default Interest.  Upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest (“Default Interest”) on (i) the unpaid principal amount of each Advance owing to each Lender, payable in arrears on the dates referred to in clause (a)(i) or (ii) above and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Advance pursuant to clause (a)(i) or (ii) above and (ii) to the fullest extent permitted by law, the amount of any interest, fee or other amount payable under the Loan Documents that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid, in the case of interest, on the Type of Advance on which such interest has accrued pursuant to clause (a)(i) or (ii) above and, in all other cases, on Base Rate Advances pursuant to clause (a)(i) above; provided,  however, that following the acceleration of the Advances, or the giving of notice by the Administrative Agent to accelerate the Advances, pursuant to Section 6.01, Default Interest shall automatically accrue and be payable hereunder.

(c)        Notice of Interest Period and Interest Rate.  Promptly after receipt of a Notice of Borrowing pursuant to Section 2.02(a) a notice of Conversion pursuant to Section 2.09 or a notice of selection of an Interest Period pursuant to the terms of the definition of “Interest Period”, the Administrative Agent shall give notice to the Borrower

 

 

 

 

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and each Appropriate Lender of the applicable Interest Period and the applicable interest rate determined by the Administrative Agent for purposes of clause (a)(i) or (ii) above.

(d)        Interest Rate Determination.

(i)         Subject to clause (ii) below, if prior to the commencement of any Interest Period for a Eurodollar Rate Advance:

(A)       the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Eurodollar Rate or the LIBO Rate, as applicable (including because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or

(B)       the Administrative Agent is advised by the Required Lenders that the Eurodollar Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Advances (or its Advance) included in such Borrowing for such Interest Period,

then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any request to Convert any Advance to, or continuation of any Advance as, a Eurodollar Rate Advance shall be ineffective, and (B) if any Notice of Borrowing requests a Eurodollar Rate Advance, such Borrowing shall be made as a Base Rate Advance.

(ii)        Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the LIBO Rate with a Benchmark Replacement.  Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower, so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendment from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Lenders shall be entitled to object only to the Benchmark Replacement Adjustment contained therein.  Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment.  No replacement of LIBO Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date.

 

 

 

 

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(iii)      In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

(iv)       The Administrative Agent will promptly notify the Borrower and the Lenders of (A) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, (B) the implementation of any Benchmark Replacement, (C) the effectiveness of any Benchmark Replacement Conforming Changes and (D) the commencement or conclusion of any Benchmark Unavailability Period.  Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.07(d), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.07(d).

(v)        Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (A) any request to Convert any Advance to, or continuation of any Advance as, a Eurodollar Rate Advance shall be ineffective, and (B) if any Notice of Borrowing requests a Eurodollar Rate Advance, such Borrowing shall be made as a Base Rate Advance.

SECTION 2.08        Fees.  (a) Commitment Fee.  The Borrower shall pay to the Administrative Agent for the account of the Revolving Credit Lenders a commitment fee, from the Effective Date in the case of each Initial Lender that is a Revolving Credit Lender and from the effective date specified in the Assignment and Assumption pursuant to which it became a Revolving Credit Lender in the case of each other Revolving Credit Lender until the Termination Date for the Revolving Credit Facility applicable to such Lender, payable in arrears quarterly on the last day of each fiscal quarter and on the Termination Date for the Revolving Credit Facility, at a percentage per annum equal to the Applicable Percentage applicable to such Lender at such time on the sum of the average daily Unused Revolving Credit Commitment of such Revolving Credit Lender plus its Pro Rata Share of the average daily outstanding Swing Line Advances during such quarter.

(b)        Letter of Credit Fees, Etc. (i) The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender a commission, payable in arrears quarterly, within 15 days of each March 31, June 30, September 30 and December 31, and on the earlier to occur of (A) the full drawing, expiration, termination or cancellation of any Letter of Credit and (B) on the Termination Date for the Revolving Credit Facility applicable to such Lender, on such Revolving Credit Lender’s Pro Rata Share of the average daily aggregate Available Amount during such quarter of all Letters of Credit outstanding from time to time at a percentage per annum equal to the Applicable Margin for Eurodollar Rate Advances made by such Lender at such time.  Upon

 

 

 

 

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the occurrence and during the continuance of a Default under Section 6.01(a) or 6.01(f) or an Event of Default, the amount of commission payable by the Borrower under this clause (b)(i) shall be increased by 2% per annum.

(ii)        The Borrower shall pay to each Issuing Bank, for its own account, a fronting fee, payable in arrears quarterly, within 15 days after each March 31, June 30, September 30 and December 31, and on the earliest to occur of the full drawing, expiration, termination or cancellation of any Letter of Credit and, in the case of any Letter of Credit that is not a Special Letter of Credit, on the Termination Date for the Revolving Credit Facility applicable to such Lender, on the average daily aggregate Available Amount during such quarter of all Letters of Credit issued by such Issuing Bank and outstanding from time to time at a percentage per annum equal to 0.15% (as contemplated by the Fee Letters).

(iii)      The Borrower shall pay to each Issuing Bank, for its own account, such other commissions and issuance fees, and such customary transfer fees, amendment fees and other fees and charges in connection with the issuance or administration of each Letter of Credit issued by such Issuing Bank, including the administration of each Letter of Credit Agreement, as the Borrower and such Issuing Bank shall agree; provided that the fees of the type contemplated by clauses (b)(i)and (ii) of this Section 2.08(b) shall be exclusive of any similar fee that would otherwise be required to be paid under any such Letter of Credit Agreement.

(c)        Administrative Agent’s Fees.  The Borrower shall pay to the Administrative Agent for its own account such fees as may from time to time be agreed between the Borrower and the Administrative Agent (including as set forth in the Fee Letters).

SECTION 2.09        Conversion of Advances.  (a) Optional.  The Borrower may on any Business Day, upon notice given to the Administrative Agent not later than 12:00 noon (New York City time) on the third Business Day prior to the date of the proposed Conversion or continuation, in the case of the Conversion or continuation of any Advances (or portion thereof) into or as Eurodollar Rate Advances, and on the same Business Day, in the case of the Conversion of any Advances (or portion thereof) into Base Rate Advances, and subject, in each case, to the provisions of Sections 2.07 and 2.10, Convert (or in the case of Eurodollar Rate Advances, continue) all or any portion of the Advances of one Type comprising the same Borrowing into Advances of the other Type; provided,  however, that any Conversion of Eurodollar Rate Advances into Base Rate Advances or continuation of Eurodollar Rate Advances shall be made only on the last day of an Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an amount not less than the minimum amount specified in Section 2.02(c), no Conversion of any Advances (or portion thereof) shall result in more separate Borrowings than permitted under Section 2.02(c) and each Conversion of Advances (or portion thereof) comprising part of the same Borrowing under any Facility shall be made ratably among the Appropriate Lenders in accordance with their Commitments under such Facility.  Each such notice of Conversion or continuation shall, within the restrictions specified above, specify (i) the date of such Conversion or continuation, (ii) the aggregate amount of the Advances (or portion thereof) to be Converted or continued and (iii) if such Conversion or continuation is

 

 

 

 

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into Eurodollar Rate Advances, the duration of the initial Interest Period for such Advances (or portion thereof). Each notice of Conversion shall be irrevocable and binding on the Borrower.

(b)           Mandatory.  (i) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $5,000,000, such Advances shall automatically Convert into Base Rate Advances.

(ii)        If the Borrower shall provide a notice of Conversion or continuation and fail to select the duration of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01, the Administrative Agent will forthwith so notify the Borrower and the Appropriate Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into or continue as a Eurodollar Rate Advance with an interest period of one month.  In addition, if the Borrower shall fail to provide a timely notice of Conversion or continuation for any Eurodollar Rate Advance, such Eurodollar Rate Advance will automatically Convert into a Base Rate Advance.

(iii)      Upon the occurrence and during the continuance of any Event of Default, (A) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (B) the obligation of the Lenders to make, or to Convert Advances into or to continue Eurodollar Rate Advances as, Eurodollar Rate Advances shall be suspended during such continuance.

SECTION 2.10        Increased Costs, Etc.  (a) If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation after the date hereof or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of agreeing to make or of making, funding or maintaining Eurodollar Rate Advances or of agreeing to issue or of issuing or maintaining or participating in Letters of Credit or of agreeing to make or of making or maintaining Letter of Credit Advances (excluding, for purposes of this Section 2.10, any such increased costs resulting from (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes (as to which Section 2.12 shall govern), then the Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost.  A certificate as to the amount of such increased cost, submitted to the Borrower by such Lender, shall be conclusive and binding for all purposes, absent manifest error.

(b)        If any Lender determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority enacted, promulgated, issued or made after the date hereof (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender and that the amount of such capital is increased by or based upon the existence of such Lender’s commitment to lend or to issue or participate in Letters of Credit hereunder and other commitments of such type or the issuance or maintenance of or participation

 

 

 

 

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in any Letters of Credit (or similar contingent obligations), then, upon demand by such Lender or such corporation (with a copy of such demand to the Administrative Agent), the Borrower shall pay to the Administrative Agent for the account of such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender in the light of such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender’s commitment to lend or to issue or participate in Letters of Credit hereunder or to the issuance or maintenance of or participation in any Letters of Credit.  A certificate as to such amounts submitted to the Borrower by such Lender shall be conclusive and binding for all purposes, absent manifest error.

(c)        If, with respect to any Eurodollar Rate Advances under any Facility, Lenders in respect of such Facility owed at least 50% of the then aggregate unpaid principal thereof notify the Administrative Agent that the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to such Lenders of making, funding or maintaining their Eurodollar Rate Advances for such Interest Period, the Administrative Agent shall forthwith so notify the Borrower and the Appropriate Lenders, whereupon (i) each such Eurodollar Rate Advance under such Facility will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Borrower that such Lenders have determined that the circumstances causing such suspension no longer exist.

(d)        Notwithstanding any other provision of this Agreement, if the introduction of or any change in or in the interpretation of any law or regulation after the date hereof shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder, then, on notice thereof and demand therefor by such Lender to the Borrower through the Administrative Agent, (i) each Eurodollar Rate Advance under each Facility under which such Lender has a Commitment will automatically, upon such demand, Convert into a Base Rate Advance and (ii) the obligation of the Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Borrower that such Lender has determined that the circumstances causing such suspension no longer exist.

(e)        Notwithstanding anything herein to the contrary, for the purposes of this Section 2.10, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, interpretations or directives thereunder or issued in connection therewith and (ii) all requests, rules, regulations, guidelines, interpretations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities, in each case, pursuant to Basel III, shall, in each case, be deemed to be a change in law after the date hereof regardless of the date enacted, adopted or issued.

(f)        All amounts paid hereunder shall be without duplication of any amounts included within the definition of the term “Eurodollar Rate”.

 

 

 

 

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SECTION 2.11        Payments and Computations.  (a)  The Borrower shall make each payment hereunder and under the Notes, irrespective of any right of counterclaim or set-off, not later than 12:00 noon (New York City time) on the day when due in U.S. dollars to the Administrative Agent at the Administrative Agent’s Account in same day funds, with payments being received by the Administrative Agent after such time being deemed to have been received on the next succeeding Business Day.  Except as otherwise expressly provided herein, the Administrative Agent will promptly thereafter cause like funds to be distributed if such payment by the Borrower is in respect of any obligation then payable hereunder and under the Notes to (i) more than one Lender, to such Lenders for the account of their respective Applicable Lending Offices ratably in accordance with the amounts of such respective obligations then payable to such Lenders and (ii) one Lender, to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.  Upon its acceptance of an Assignment and Assumption and recording of the information contained therein in the Register pursuant to Section 8.07(b)(iv) or upon the purchase by any Revolving Credit Lender of any Swing Line Advance pursuant to 0, from and after the effective date of such Assignment and Assumption or purchase, as the case may be, the Administrative Agent shall make all payments hereunder and under the Notes in respect of the interest assigned or purchased thereby to the Lender assignee or purchaser thereunder, and, in the case of an Assignment and Assumption, the parties to any such Assignment and Assumption shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.

(b)           The Borrower hereby authorizes each Lender and each of its Affiliates, if and to the extent payment owed to such Lender is not made when due hereunder (after giving effect to any period of grace) or, in the case of a Lender, under the Note held by such Lender, to charge from time to time, to the fullest extent permitted by law, against any or all of the Borrower’s accounts with such Lender or such Affiliate any amount so due.

(c)           All computations of interest based on the Base Rate shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the Federal Funds Rate and of fees and Letter of Credit commissions shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest, fees or commissions are payable.  Each determination by the Administrative Agent of an interest rate, fee or commission hereunder shall be conclusive and binding for all purposes, absent manifest error.

(d)           Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or commitment or Letter of Credit fee or commission, as the case may be; provided,  however, that, if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

(e)           Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to any Lender hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has

 

 

 

 

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made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each such Lender on such due date an amount equal to the amount then due such Lender.  If and to the extent the Borrower shall not have so made such payment in full to the Administrative Agent, each such Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at the Federal Funds Rate.

(f)           If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under the Loan Documents under circumstances for which the Loan Documents do not specify the Advances or the Facility to which, or the manner in which, such funds are to be applied, the Administrative Agent shall distribute such funds to each Lender ratably in accordance with such Lender’s Pro Rata Share of the sum of (i) the aggregate principal amount of all Advances outstanding at such time and (ii) the aggregate Available Amount of all Letters of Credit then due and payable at such time, in repayment or prepayment of such of the outstanding Advances or other Obligations then owing to such Lender and shall return any unused funds to the Borrower.

SECTION 2.12        Taxes.  (a)  Any and all payments by the Borrower to or for the account of any Lender or the Administrative Agent hereunder or under the Notes or any other Loan Document shall be made, in accordance with Section 2.11 or the applicable provisions of such other Loan Document, if any, free and clear of and without deduction for any and all Taxes, except as required by law.  If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any Note or any other Loan Document to any Lender or the Administrative Agent, (A) the Borrower shall make all such deductions, (B) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law and (C) if such Tax is an Indemnified Tax, the sum payable by the Borrower shall be increased as may be necessary so that after the Borrower and the Administrative Agent have made all required deductions (including deductions applicable to additional sums payable under this Section 2.12) such Lender or the Administrative Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made for Taxes.

(b)        In addition, the Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(c)        The Borrower shall indemnify each Lender and the Administrative Agent within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.12) payable or paid by such Lender or the Administrative Agent or required to be withheld or deducted from a payment to such Lender or the Administrative Agent and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to Borrower by a Lender (with a copy to the Administrative Agent) or by the Administrative Agent on its own behalf, shall be conclusive absent manifest error.

 

 

 

 

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(d)        As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 2.12, the Borrower shall deliver to the Administrative Agent, at its address referred to in Section 8.02, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e)        (i)  Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under the Notes and any other Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested in writing by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested in writing by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested in writing by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (A), (B) and (D) of Section 2.12(e)(ii)) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)        Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,

(A)       any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B)       any foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

(1)        in the case of a foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under the Note or any other Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect

 

 

 

 

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to any other applicable payments under the Note or any other Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2)        executed copies of IRS Form W-8ECI;

(3)        in the case of a foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W 8BEN-E; or

(4)        to the extent a foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W 8BEN-E, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the foreign Lender is a partnership and one or more direct or indirect partners of such foreign Lender are claiming the portfolio interest exemption, such foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner;

(C)       any foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable written request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

(D)       if a payment made to a Lender under the Note or any other Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably

 

 

 

 

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requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(f)         If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.12 (including by the payment of additional amounts pursuant to this Section 2.12), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.12 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (f) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This paragraph (f) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(g)        Each party’s obligations under this Section 2.12 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the commitments and the repayment, satisfaction or discharge of all obligations under the Note and any other Loan Document.

SECTION 2.13       Sharing of Payments, Etc. If any Lender shall obtain at any time any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise, other than as a result of an assignment pursuant to Section 8.07) (a) on account of Obligations due and payable to such Lender hereunder and under the Notes and the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations due and payable to all Lenders hereunder and under the Notes and the other Loan Documents at such time) of payments on account of the Obligations due and payable to all Lenders hereunder and under the Notes at such time obtained by all the Lenders at such time or (b) on account of Obligations owing (but not due and payable) to such Lender hereunder and under the

 

 

 

 

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Notes and the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all Lenders hereunder and under the Notes and the other Loan Documents at such time) of payments on account of the Obligations owing (but not due and payable) to all Lenders hereunder and under the Notes at such time obtained by all of the Lenders at such time, such Lender shall forthwith purchase from the other Lenders such interests or participating interests in the Obligations due and payable or owing to them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided,  however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each other Lender shall be rescinded and such other Lender shall repay to the purchasing Lender the purchase price to the extent of such Lender’s ratable share (according to the proportion of (A) the purchase price paid to such Lender to (B) the aggregate purchase price paid to all Lenders) of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (I) the amount of such other Lender’s required repayment to (II) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered.  The Borrower agrees that any Lender so purchasing an interest or participating interest from another Lender pursuant to this Section 2.13 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such interest or participating interest, as the case may be, as fully as if such Lender were the direct creditor of the Borrower in the amount of such interest or participating interest, as the case may be.  Each of the Extending Lenders hereby acknowledges and agrees that principal repayments made to the Non-Extending Lenders on the Termination Date applicable to Non-Extending Lenders (and not also applicable to the Extending Lenders) shall not be subject to the share provisions of this Section 2.13.

SECTION 2.14        Use of Proceeds.  The proceeds of the Advances and issuances of Letters of Credit shall be available (and the Borrower agrees that it shall use such proceeds and Letters of Credit) solely (a) on or after the Effective Date, to pay transaction fees and expenses incurred in connection herewith and (b) from time to time, for general business purposes of the Borrower (including for distributions to the MLP to enable the MLP to make cash distributions to the holders of the MLP’s units) and its Subsidiaries.

SECTION 2.15        Defaulting Lenders.  Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Credit Lender is a Defaulting Lender:

(a)        fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.08(a);

(b)        if any Swing Line Advance or Letter of Credit exists at the time such Revolving Credit Lender becomes a Defaulting Lender then:

(i)         all or any part of the participations in Swing Line Advances and the Available Amount of outstanding Letters of Credit shall be reallocated among the non-Defaulting Lenders that are Revolving Credit Lenders in accordance with their

 

 

 

 

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respective Pro Rata Shares (disregarding any Defaulting Lender’s Revolving Credit Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all Advances made by such non-Defaulting Lenders (in their capacity as Revolving Credit Lenders) and outstanding at such time, (B) such non-Defaulting Lenders’ Pro Rata Shares (before giving effect to the reallocation contemplated herein) of the Available Amount of all outstanding Letters of Credit, (C) the aggregate principal amount of all Advances made by the Swing Line Bank and each Issuing Bank pursuant to this Agreement that have not been ratably funded by such non-Defaulting Lenders and outstanding at such time and (D) such Defaulting Lender’s Pro Rata Share of such outstanding Swing Line Advances and the Available Amount of such Letters of Credit does not exceed the total of all such non-Defaulting Lenders’ Revolving Credit Commitments;

(ii)        if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay such Defaulting Lender’s Pro Rata Share of the outstanding Swing Line Advances and (B) second, Cash Collateralize for the benefit of the Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s Pro Rata Share of the Available Amount of outstanding Letters of Credit (in each case, after giving effect to any partial reallocation pursuant to clause (i) above) by paying Cash Collateral to the Swing Line Bank or the applicable Issuing Banks, as the case may be;

(iii)      if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Pro Rata Share of the Available Amount of outstanding Letters of Credit pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.08(b)(i) with respect to such Pro Rata Share during the period such Pro Rata Share is Cash Collateralized;

(iv)       if the Pro Rata Shares of the Available Amount of outstanding Letters of Credit of the non-Defaulting Lenders that are Revolving Credit Lenders are reallocated pursuant to clause (i) above, then the fees payable to the Revolving Credit Lenders pursuant to Section 2.08(a) and (b)(i) shall be adjusted in accordance with such Pro Rata Shares;

(v)        if all or any portion of such Defaulting Lender’s Pro Rata Share of the Available Amount of outstanding Letters of Credit is neither reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Banks or any other Revolving Credit Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such Pro Rata Share) and letter of credit fees payable under Section 2.08(b)(i) with respect to such Defaulting Lender’s Pro Rata Share shall be payable to the applicable Issuing Banks until and to the extent that such Pro Rata Share is reallocated and/or Cash Collateralized; and

 

 

 

 

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(c)        so long as such Lender is a Defaulting Lender, the Swing Line Bank shall not be required to fund any Swing Line Advance and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s Pro Rata Share of the Available Amount of then outstanding Letters of Credit will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders that are Revolving Credit Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.15(b), and participating interests in any newly made Swing Line Advance or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders that are Revolving Credit Lenders in a manner consistent with Section 2.15(b)(i) (and such Defaulting Lender shall not participate therein).

If (i) a Bankruptcy Event with respect to a Parent Company of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swing Line Bank or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swing Line Bank shall not be required to fund any Swing Line Advance and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swing Line Bank or any Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swing Line Bank or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.

In the event that each of the Administrative Agent, the Borrower, the Swing Line Bank and each Issuing Bank agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the participations in Swing Line Advances and the Available Amount of outstanding Letters of Credit of the Revolving Credit Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Advances of the other Revolving Credit Lenders (other than Swing Line Advances) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Advances in accordance with its Pro Rata Share.

SECTION 2.16        Evidence of Debt.  (a)  Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Advance owing to such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.  The Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such notice to the Administrative Agent) to the effect that a promissory note or other evidence of indebtedness is required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing to, or to be made by, such Lender, the Borrower shall promptly execute and deliver to such Lender, with a copy to the Administrative Agent, a Revolving Credit Note, in substantially the form of Exhibit A-2, payable to the order of such Lender in a principal amount equal to the applicable Commitment of such Lender.  All references to Notes in the Loan Documents shall mean Notes, if any, to the extent issued hereunder.

(b)           The Register maintained by the Administrative Agent pursuant to Section 8.07(b)(iv) shall include a control account, and a subsidiary account for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made

 

 

 

 

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hereunder, the Type of Advances comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assignment and Assumption delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder, and (iv) the amount of any sum received by the Administrative Agent from the Borrower hereunder and each Lender’s share thereof.

(c)           Entries made in good faith by the Administrative Agent in the Register pursuant to subsection (b) above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided,  however, that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the Obligations of the Borrower under this Agreement.

SECTION 2.17        Mitigation; Replacement of Lenders.  (a) If any Lender requests compensation under Section 2.10 (or provides a notice or makes a demand under Section 2.10(c) or (d)), or if the Borrower is required to pay any indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.12, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.10 or 2.12 (or eliminate the need to provide a notice or make a demand under Section 2.10(c) or (d)), as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b)           If any Lender requests compensation under Section 2.10 (or provides a notice or makes a demand under Section 2.10(c) or (d)), or if the Borrower is required to pay any indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.12, or if any Lender becomes a Defaulting Lender, or if any Lender is a Non-Consenting Lender, then the Borrower may, so long as no Default has occurred and is continuing and at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 8.07), all its interests, rights (other than its existing rights to payments pursuant to Section 2.10 or 2.12) and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written consent of the Administrative Agent (and if a Revolving Credit Commitment is being assigned, the Issuing Bank), which consent shall not unreasonably be withheld or delayed, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Advances and participations in L/C Disbursements and Swing Line Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (iii) in the case of any such assignment resulting from a claim for compensation

 

 

 

 

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under Section 2.10 or payments required to be made pursuant to Section 2.12, such assignment will result in a reduction in such compensation or payments and (iv) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent or the applicable request for extension.  A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

ARTICLE III

CONDITIONS OF LENDING

SECTION 3.01        Conditions Precedent to Amendment and Restatement.  The Existing Credit Agreement shall be amended and restated in full as set forth herein on the date the following conditions have been satisfied (or waived in writing):

(a)        The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:

(i)         Executed counterparts of this Agreement, duly executed by the Borrower, MLP, the Administrative Agent, the Required Lenders and each Extending Lender.

(ii)        The Notes payable to the order of the Lenders that have requested Notes prior to the Effective Date.

(iii)      An amended and restated guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.