Exhibit 10.1

Execution Version

CREDIT AGREEMENT

Dated as of January 13, 2023

Among

ALLIANCE COAL, LLC

as Borrower,

ALLIANCE RESOURCE OPERATING PARTNERS, L.P.,

ALLIANCE RESOURCE PARTNERS, L.P.,

UC COAL, LLC,

UC MINING, LLC,

UC PROCESSING, LLC AND

MGP II, LLC

as Additional Alliance Entities

and

THE INITIAL LENDERS, INITIAL ISSUING BANKS AND

SWING LINE BANK NAMED HEREIN

as Initial Lenders, Initial Issuing Banks and Swing Line Bank

and

PNC BANK, NATIONAL ASSOCIATION

as Administrative Agent and Collateral Agent

and

PNC CAPITAL MARKETS LLC,

BOKF, NA DBA BANK OF OKLAHOMA,

FIFTH THIRD BANK, NATIONAL ASSOCIATION,

OLD NATIONAL BANK AND

TRUIST SECURITIES, INC.

as Joint Lead Arrangers

and

as Joint Bookrunners

and

PLANTERS BANK, INC.,

CITY NATIONAL BANK OF WEST VIRGINIA,

COMMUNITY TRUST BANK, INC.,

FIRST FINANCIAL BANK,

FIRST FOUNDATION BANK AND

SUMMIT COMMUNITY BANK

as Documentation Agents

​

​

​

​

Table of Contents

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

CREDIT AGREEMENT

CREDIT AGREEMENT dated as of January 13, 2023 (this “Agreement”) among (a) ALLIANCE COAL, LLC, a Delaware limited liability company (the “Borrower”), (b) ALLIANCE RESOURCE PARTNERS, L.P., a Delaware limited partnership (the “Parent” or “MLP”), ALLIANCE RESOURCE OPERATING PARTNERS, L.P., a Delaware limited partnership (“AROP”), UC COAL, LLC, a Delaware limited liability company (“UC Coal”), UC MINING, LLC, a Delaware limited liability company (“UC Mining”), UC PROCESSING, LLC, a Delaware limited liability company (“UC Processing” and, together with UC Coal and UC Mining, the “UC Guarantors”), and MGP II, LLC, a Delaware limited liability company (the “Manager/GP Guarantor” and, together with MLP, AROP and the UC Guarantors, the “Additional Alliance Entities”), (c) the banks, financial institutions and other institutional lenders listed on the signature pages hereof as  Lenders (the “Initial Lenders”), (d) the banks listed on the signature pages hereof as the Issuing Banks (the “Initial Issuing Banks”), (e) the Swing Line Bank, (f) PNC BANK, NATIONAL ASSOCIATION (“PNC”), as administrative agent and collateral agent (together with any successor administrative agent appointed pursuant to Article VII, the “Administrative Agent”) for the Lenders (as hereinafter defined), (g) PNC Capital Markets LLC, BOKF, NA dba Bank of Oklahoma, Fifth Third Bank, National Association, Old National Bank and Truist Securities, Inc., as joint lead arrangers and bookrunners (collectively, the “Joint Lead Arrangers”), and (h) Planters Bank, Inc., City National Bank of West Virginia, Community Trust Bank, Inc., First Financial Bank, First Foundation Bank and Summit Community Bank, as documentation agents.

PRELIMINARY STATEMENT:

The Borrower has requested the Lenders to provide (i) a revolving credit facility to the Borrower in an initial amount of $425,000,000, including therein a Swing Line Advance (as hereinafter defined) subfacility and a Letter of Credit (as hereinafter defined) facility in the full amount of (but not in addition to) such revolving credit facility and (ii) a term loan facility in an initial aggregate principal amount of $75,000,000. In consideration of their mutual covenants and agreements hereinafter specified and intending to be legally bound hereby, the parties hereto covenant and agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.01Certain 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 (or a branch or agency of any foreign bank, organized or licensed 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.

“ACH” means the Automated Clearing House, the primary system used for electronic funds transfer by financial institutions in the United States.

“Acquired Consolidated Cash Flow” means, with respect to any Acquired Entity or Business (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 Subsidiaries therein were to such Pro Forma Entity and in the case of any Acquired Entity or Business, its 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 Alliance Entities” has the meaning specified in the Preamble.

“Additional Alliance Entity Guaranteed Obligations” has the meaning specified in Section 9.01(a).

“Additional Alliance Entity Guarantees” has the meaning specified in Section 9.01(b).

“Additional Real Property” has the meaning specified in Section 5.01(i)(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 PNC at its office at 500 First Ave, Pittsburgh, PA 15219, Account No. 130760017005, 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 Term Loan Advance, a Swing Line Advance or a Letter of Credit Advance.

​

​

​

​

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

“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 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 Guarantor and no Subsidiary Guarantor shall be an Affiliate of the Borrower or any other Subsidiary Guarantor.

“Agent Parties” has the meaning specified in Section 8.02(d).

“Agreement” has the meaning specified in the Preamble.

“Amortization Date” means the last Business Day of each fiscal quarter, beginning with the fiscal quarter ending June 30, 2023.

“Amortization Payment” has the meaning specified in Section 2.04.

“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, and any other similar anti-corruption Laws or regulations  administered or enforced in any jurisdiction in which the Borrower or any of its Affiliates conduct business.

“Anti-Terrorism Law” means any law in force or hereinafter enacted related to terrorism, money laundering, or economic sanctions, including the Bank Secrecy Act, 31 U.S.C. § 5311 et seq., the USA PATRIOT Act, the International Emergency Economic Powers Act, 50 U.S.C. 1701, et seq., the Trading with the Enemy Act, 50 U.S.C. App. 1, et seq., 18 U.S.C. § 2332d, and 18 U.S.C. § 2339B.

“Applicable Margin” means with respect to Base Rate Advances, Term SOFR Rate Advances, Daily SOFR Advances and Letter of Credit Fees, (a) prior to first required delivery of financial statements pursuant to Section 5.03, the percentage per annum corresponding to “Level II” in the table below and (b) thereafter, a percentage per annum determined by reference to the Consolidated Debt to Consolidated Cash Flow Ratio as set forth below:

​

​

​

​

​

From and after the date on which financial statements are first required to be delivered pursuant to Section 5.03, the Applicable Margin for each Advance and Letter of Credit Fee 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) 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.

“Applicable Percentage” means 0.50%.

“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(b)(ii) that are outstanding at such time, each such other Revolving Credit Lender, (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 pursuant to Section 2.02(b) that are outstanding at such time, each such other Revolving Credit Lender and (d) the Term Loan Facility, a Term Lender.

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

​

​

​

“AROP Funding” means AROP Funding, LLC, a Delaware limited liability company.

“AROP/MGP Pledge Agreement” has the meaning set forth in Section 3.01(a)(vi).

“ASC 842” has the meaning specified in Section 1.03.

“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.

“Associated Person” has the meaning specified in Section 8.20.

“Auto-Extension Letter of Credit” has the meaning specified in Section 2.03.

“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); provided that with respect to any Letter of Credit that, by its terms, provides for one or more automatic increases in the available amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum amount is available to be drawn at such time.

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor of such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.07(d)(iv)(D).

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

“Bail-In Legislation” means, (a) 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, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom,  Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

“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 fluctuating per annum rate of interest equal to the highest of (i) the Overnight Bank Funding Rate, plus 0.5%, (ii) the Prime Rate, and (iii) the Daily Simple SOFR, plus 1.00%, so long as Daily Simple SOFR is offered, ascertainable and not unlawful; provided, however, if the Base Rate as determined above would be less than 1.0% per annum, then such rate shall be deemed to be 1.0% per annum.  Any change in the Base Rate (or any component thereof) shall take effect at the opening of business on the day such change occurs. Notwithstanding anything to the contrary contained herein, in the case of any event specified in Section 2.07(d)(i) or Section 2.07(d)(ii), to the extent any such determination affects the calculation of the Base Rate, the definition hereof shall be calculated without reference to clause (iii) until the circumstances giving rise to such event no longer exist.

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

“Base Rate Option” means the option of the Borrower to have Term Loan Advances or Revolving Credit Advances bear interest at the rate and under the terms specified in Section 2.07(a)(i).

“Benchmark” means, initially, SOFR and the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.07(d)(iv).

“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

(1)the sum of: (A) Daily Simple SOFR and (B) the SOFR Adjustment for a 1-month Interest Period;

(2)the sum of (A) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower, giving due consideration to (x) any selection or recommendation of a replacement benchmark rate or the mechanism for

​

​

​

​

determining such a rate by the Relevant Governmental Body or (y) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for U.S. dollar-denominated syndicated credit facilities at such time and (B) the related Benchmark Replacement Adjustment;

provided that if the Benchmark Replacement as determined pursuant to clause (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents; and provided further, that any Benchmark Replacement shall be administratively feasible as determined by the Administrative Agent in its sole discretion.

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, 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 (A) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (B) 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 such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.

“Benchmark Replacement Date” means a date and time determined by the Administrative Agent, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark:

​

(1) in the case of clause (1) or (2) of 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 such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate or is based on a term rate, all Available Tenors of such Benchmark (or such component thereof); or

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date determined by the Administrative Agent, which date shall promptly follow the date of the public statement or publication of information referenced therein;

For the avoidance of doubt, if such Benchmark is a term rate or is based on a term rate, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Event” means, the occurrence of one or more of the following events, with respect to the then-current Benchmark:

​

​

​

​

​

(1)a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate or is based on a term rate, all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

(2)a public statement or publication of information by a Governmental Authority having jurisdiction over the Administrative Agent, the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate or is based on a term rate, all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate or is based on a term rate, any Available Tenor of such Benchmark (or such component thereof); or

(3)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) or a Governmental Authority having jurisdiction over the Administrative Agent announcing that such Benchmark (or such component thereof) or, if such Benchmark is a term rate or is based on a term rate,  all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.

For the avoidance of doubt, if such Benchmark is a term rate or is based on a term rate, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.07(d)(iv) and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.07(d)(iv).

​

​

​

​

“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 as the Borrower shall specify in writing to the Administrative Agent from time to time.

“Borrowing” means a Term Loan Borrowing, a Revolving Credit Borrowing, or a Swing Line Borrowing.

“Building” has the meaning specified in Section 5.01(i).

“Business Day” means any day other than a Saturday or Sunday or a legal holiday on which commercial banks are authorized or required to be closed, or are in fact closed, for business in Pittsburgh, Pennsylvania (or, if otherwise, the Lending Office of the Administrative Agent); provided that, when used in connection with an amount that bears interest at a rate based on SOFR or any direct or indirect calculation or determination of SOFR, the term “Business Day” means any such day that is also a U.S. Government Securities Business Day.

“Business Plan” means a rolling five year business plan for the Borrower and its 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 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 the Lenders, as collateral for Letter of Credit Obligations or obligations of Lenders to fund participations in respect of Letter of Credit Obligations, cash or deposit account balances or, if the Administrative Agent and each applicable Issuing Bank shall agree in their sole discretion, other credit support, in each case in an amount equal to the Minimum Collateral Amount 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 Subsidiaries free and clear of all Liens and, unless otherwise specified below, having a maturity of not greater than one year from the date of acquisition thereof:

(a)United States Governmental Securities;

(b)time deposits, certificates of deposit, banker’s acceptances, money market deposits or other bank instruments, issued by Acceptable Banks, and Eurodollar time deposits with any Acceptable Bank;

(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;

(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 Subsidiary, is rated A-2 or better by S&P or P-2 or better by Moody’s or an equivalent rating by any other credit rating agency of recognized national standing;

(f)any money-market fund sponsored by a registered broker dealer or mutual fund distributor whose assets consist of obligations of the types described in clauses (a), (b), (c), (d) or (e) of this definition;

(g)asset-backed securities maturing within one year of the date of acquisition thereof with a long-term rating at the time as of which any Investment therein is made of “A-” (or higher) by Dominion Bond Rating Service Limited or Canadian Bond Rating Service, Inc. (in the case of a Canadian issuer);

(h)obligations of any foreign government or obligations that possess a guaranty of the full faith and credit of any foreign government maturing not later than one year after acquisition thereof;

​

​

​

​

(i)obligations of United States government-sponsored enterprises, Federal agencies, and Federal financing banks that are not otherwise authorized including, but not limited to, (i) United States government-sponsored enterprises such as instrumentalities of the Federal Credit System (Bank for Cooperatives, Federal Land Banks), Federal Home Loan Banks and Federal National Mortgage Association and (ii) Federal agencies such as instrumentalities of the Department of Housing and Urban Development (Federal Housing Administration, Government National Mortgage Association), Export-Import Bank, Farmers Home Administration and Tennessee Valley Authority, in each case maturing not later than one year following acquisition thereof;

(j)debt obligations (other than commercial paper obligations) of domestic or foreign corporations maturing not later than two years after acquisition thereof;

(k)preferred stock obligations with a floating rate dividend that is reset periodically at auction maturing not later than one year after acquisition thereof;

(l)repurchase agreements collateralized by any of the above securities eligible for outright purchase; provided that the collateral is delivered to a bank custody account in accordance with the terms of a written repurchase agreement with a dealer or bank; and

(m)shares of institutional mutual funds whose investment policies are essentially in agreement with the type and criteria for Investments otherwise set forth in this definition;

provided that Investments described in clauses (h) through (m) of this definition are restricted to obligations rated no lower than “A3” or “P-1” by Moody’s or “A-“ or “A-1” by S&P.

“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, as of the Closing Date or at the time it enters into a Cash Management Agreement, is the Administrative Agent, the Collateral Agent or a Lender or an Affiliate of the Administrative Agent, the Collateral Agent or 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.

“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Internal Revenue Code and applicable Treasury Regulations.

“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 (x) the general partner of the MLP or (y) the managing general partner of AROP or (ii) control, directly or indirectly, (x) the general partner of the MLP or the managing general partner of AROP, (b) there at any time being a general partner of the MLP or AROP that is not controlled, directly or indirectly, by C-Holdings, (c) the MLP ceasing at any time to hold, directly or indirectly, 100% of the Capital Stock of Borrower, (d) C-Holdings ceasing at any time to have the ability, directly or indirectly, to appoint a majority of the board of directors or the managing member of the Borrower, (e) C-Holdings ceasing to hold, directly or indirectly, more than 50% of the Voting Stock of the general partner of the MLP or (f) the Permitted Holders ceasing, at any time for any reason, to own directly or indirectly, beneficially and of record, the Capital Stock of C-Holdings representing more than 50% of the Voting Stock of C-Holdings.

“C-Holdings” has the meaning specified in the definition of “Change of Control.”

“CIP Regulations” has the meaning specified in Section 7.11.

“Class”, when used in reference to any Advance, refers to whether such Advances are Term Loan Advances, Revolving Credit Advances or Swing Line Advances and, when used in reference to any Lender, refers to whether such Lender has any outstanding Revolving Credit Advances or Revolving Credit Commitments or Term Loan Commitments or Term Loan Advances.

“Closing Date” means the first date on which the conditions set forth in Article III shall have been satisfied, which for the avoidance of doubt is January 13, 2023.

“Closing Date Identified Properties” means the real property, including leasehold interests, described on Schedule 1.01(c) hereto.

“Closing Date Receivables Financing Intercreditor Letter Agreement” has the meaning assigned to such term in the definition of “Receivables Financing Intercreditor Letter Agreement”.

“Code” means the Internal Revenue Code of 1986 as amended from time to time.

“Collateral” means all of the “Collateral” and “Mortgaged 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 PNC, in its capacity as “Administrative 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 AROP/MGP Pledge Agreement, the Mortgages, 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 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.

“Collateral Granting Loan Party” means each Loan Party other than MLP, AROP and the Manager/GP Guarantor.

“Commitment” means a Revolving Credit Commitment, a Term Loan 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.

“Communications” has the meaning specified in Section 8.02(d).

“Conforming Changes” means, with respect to the Term SOFR Rate, Daily SOFR or any Benchmark Replacement in relation thereto, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” the definition of “U.S. Government Securities Business Day,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of the Term SOFR Rate, Daily SOFR or 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 Term SOFR Rate, Daily SOFR or 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 and the other Loan Documents).

“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 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 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 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 Subsidiary (each such Person, business, property or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”), based on the actual Acquired Consolidated Cash Flow of such Acquired Entity or Business 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 Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”) based on the actual Disposed Cash Flow of such Sold Entity or Business for such period (including the portion thereof occurring prior to such sale, transfer or disposition or conversion).

“Consolidated CoalCo Debt” means Consolidated Debt other than any Consolidated Debt that constitutes (i) Specified Debt (or Guarantees thereof) or (ii) Existing AROP Notes Refinancing Debt (or Guarantees thereof).

“Consolidated CoalCo Debt to Consolidated Cash Flow Ratio” means, at any date of determination, the ratio of Consolidated CoalCo Debt of the Borrower and its Subsidiaries as at the end of (x) prior to the first required delivery of financial statements hereunder pursuant to Section 5.03, the fiscal quarter ended September 30, 2022 and (y) thereafter, the most recently ended fiscal quarter (and in the case of year-end financial statements, the last fiscal quarter of such year) 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 Subsidiaries for such fiscal quarter and the immediately preceding three fiscal quarters.

“Consolidated Debt” means, as of any date of determination, the aggregate outstanding principal amount of all Debt of the Borrower and its Subsidiaries outstanding on such date, after eliminating all offsetting debits and credits between the Borrower and the Subsidiary Guarantors.

“Consolidated Debt to Consolidated Cash Flow Ratio” means, at any date of determination, the ratio of Consolidated Debt of the Borrower and its Subsidiaries as at the end of (x) prior to the first required delivery of financial statements hereunder pursuant to Section 5.03, the fiscal quarter ended September 30, 2022 and (y) thereafter, the most recently ended fiscal quarter of the Borrower (and in the case of year-end financial statements, the last fiscal quarter of such year) 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

​

​

​

​

Subsidiaries for such applicable fiscal quarter in clause (x) or (y) above and the immediately preceding three fiscal quarters.

“Consolidated Fixed Charges” means, with respect to the Borrower and its Subsidiaries for any period, the sum of Consolidated Interest Expense (determined on a consolidated basis in accordance with GAAP) plus Amortization Payments for such period plus distributions and Non-Coal Investments made in such period (but also including the proposed distribution and Non-Coal Investments that gives rise to the calculation of Consolidated Fixed Charges) of or by the Borrower and its Subsidiaries in or to Persons other than the Borrower and its Subsidiaries made in such period (and to the extent any such distributions or Non-Coal Investments are made in a form other than cash or Cash Equivalents, measured based on the fair market value of the assets that are the subject of such distribution or Non-Coal Investment).  Notwithstanding the foregoing, any distributions of proceeds of the Term Loan Advances and/or up to in total $100,000,000 in principal amount of Revolving Credit Advances in the aggregate during the term of this Agreement, made to fund the redemption, repayment or repurchase of a portion of the Existing AROP Notes, shall not be included in the calculations of Consolidated Fixed Charges.

“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 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 Subsidiaries and all other items required to be eliminated in the course of the preparation of consolidated financial statements of the Borrower and its Subsidiaries in accordance with GAAP):  (a) all interest in respect of Debt of the Borrower and its 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 Subsidiaries (other than any Joint Ventures) for such period (taken as a cumulative whole), as determined in accordance with GAAP, plus (ii) without duplication, any Eligible CNI Distributions actually received in cash by the Borrower or a Subsidiary (other than any Joint Venture) from any 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 Subsidiary or is merged into or consolidated with the Borrower or a 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 aggregate amount for all such periods from the Closing Date to the determination date in the aggregate not to exceed $25,000,000;

(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 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 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 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.

“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.

“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).

“Covered Party” has the meaning specified in Section 8.16.

“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), the interest rate per annum determined by the Administrative Agent by dividing (the resulting quotient rounded upwards, at the Administrative Agent’s discretion, to the nearest 1/100th of 1%) (A) SOFR for the day (the “SOFR Determination Date”) that is 2 Business Days prior to (i) such SOFR Rate Day if such SOFR Rate Day is a Business Day or (ii) the Business Day immediately preceding such SOFR Rate Day if such SOFR Rate Day is not a Business Day, by (B) a number equal to 1.00 minus the SOFR Reserve Percentage, in each case, as such SOFR is published by the Federal

​

​

​

​

Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source identified by the Federal Reserve Bank of New York or its successor administrator for the secured overnight financing rate from time to time.  If Daily Simple SOFR as determined above would be less than the SOFR Floor, then Daily Simple SOFR shall be deemed to be the SOFR Floor.  If SOFR for any SOFR Determination Date has not been published or replaced with a Benchmark Replacement by 5:00 p.m. (Pittsburgh, Pennsylvania time) on the second Business Day immediately following such SOFR Determination Date, then SOFR for such SOFR Determination Date will be SOFR for the first Business Day preceding such SOFR Determination Date for which SOFR was published in accordance with the definition of “SOFR”; provided that SOFR determined pursuant to this sentence shall be used for purposes of calculating Daily Simple SOFR for no more than 3 consecutive SOFR Rate Days.  If and when Daily Simple SOFR as determined above changes, any applicable rate of interest based on Daily Simple SOFR will change automatically without notice to the Borrower, effective on the date of any such change.

“Daily SOFR” means Daily Simple SOFR.

“Daily SOFR Advance” means an Advance that bears interest as provided in Section 2.07(a)(iii).

“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 surety bond) where such surety bonds are issued to support such Person’s obligations in respect of worker’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 worker’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 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 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 Subsidiary shall be deemed to equal the amount of indebtedness that would be attributable to the Borrower or any 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 Interest” has the meaning specified in Section 2.07(b).

“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” subject to Section 2.15, any Lender that (a) has failed to (i) fund all or any portion of its Advances within two Business Days of the date such Advances were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or

​

​

​

​

(ii) pay to the Administrative Agent, the Issuing Banks, the Swing Line Bank or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Advances) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the Issuing Banks or the Swing Line Bank in writing that it does not intend or expect to comply with any of its funding obligations hereunder, or has made a public statement to that effect whether specific to this Agreement or generally applicable to other agreements of such Lender (unless such writing or public statement relates to such Lender’s obligation to fund an Advance hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder and is financially able to meet such obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect Parent Company that has, (i) become the subject of a proceeding under any Bankruptcy Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect Parent Company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15) upon delivery of written notice of such determination to the Borrower, the Issuing Banks, the Swing Line Bank and each Lender.

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

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

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

“Drawing Date” means as is specified in Section 2.03(b).

“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 clause (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.

“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 Joint Venture, the net income (or loss) of such Joint Venture (and its 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 such 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 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 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 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 Joint Venture (and its consolidated Subsidiaries) in the same manner as Consolidated Net Income is determined for the Borrower and its 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 Joint Ventures and their respective consolidated Subsidiaries and (II) “Eligible CNI Distributions” as is necessary to reflect in “net income” of 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.

“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.

“Erroneous Payment” has the meaning assigned to it in Section 7.15.

“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 7.15.

​

​

​

​

“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 7.15.

“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 7.15.

“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 7.15.

“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.

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

“Excess Balance Sheet Cash” means cash and Cash Equivalents reflected on the consolidated balance sheet of the Borrower and its Subsidiaries minus (to the extent such cash or Cash Equivalents would otherwise be included in Excess Balance Sheet Cash): (a) to the extent the payment of such amounts are not prohibited by the Loan Documents, amounts in respect of which the Borrower or any of its Subsidiaries has issued checks or has initiated wires or ACH transfers to Persons that do not constitute Affiliates of any Loan Party but have not yet been subtracted from the balance in the relevant account of the Borrower or any of its Subsidiaries, (b) any cash allocated for, reserved or otherwise set aside to pay production taxes, royalty obligations, vendor payments and lease payments or similar payments as are customary in the coal industry, of the Borrower or any of its Subsidiaries then due and owing to third parties (or to be due and owing to third parties within five Business Days of such date) and for which the Borrower or such Subsidiary has issued checks or has initiated wires or ACH transfers, (c) any cash allocated for, reserved or otherwise set aside to make scheduled payments of principal of, or interest or fees on, the Facilities due within 10 days and (d) prior to September 30, 2023, (A) any proceeds of the Term Loan Advances held by Borrower being set aside for the repurchase and/or redemption of the Existing AROP Notes plus (B) to the extent irrevocably set aside for the redemption of the Existing AROP Notes, proceeds of Revolving Credit Advances.

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

“Excluded Accounts” means (i) payroll, healthcare and other employee wage and benefit accounts, (ii) tax accounts, including, without limitation, sales tax accounts, (iii) fiduciary or other trust accounts for the benefit of a Person that is not a Loan Party, (iv) workers’ compensation accounts, and (v) any lockbox or other collateral accounts under any receivables securitization facilities pursuant to Section 5.02(b)(xi), in each case, to the extent such accounts are maintained solely for the purposes described in the foregoing clauses (i) through (v), and, in the case of clauses (i) through (v), the funds or other property held in or maintained in such accounts; provided, that the Borrower’s Account shall not constitute an Excluded Account.

“Excluded Assets” means:

(a)motor vehicles (and other assets covered by certificates of title or ownership) and Letter-of-Credit Rights (as defined in the Security Agreement), in each case,

​

​

​

​

except to the extent the security interest in such assets can be perfected by the filing of an “all assets” UCC financing statement;

(b)except to the extent a security interest is granted therein pursuant to Section 4.10 of the Security Agreement, Commercial Tort Claims  (as defined in the Security Agreement) that do not exceed $5,000,000 in the aggregate for all Collateral Granting Loan Parties;

(c)assets owned by any Collateral Granting Loan Party on the Closing Date or thereafter acquired and any proceeds thereof that are subject to a Lien pursuant to Section 5.02(a)(iv), 5.02(a)(v), 5.02(a)(vi) or 5.02(a)(vii) to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for the Finance Lease Obligation, purchase money obligation or lease subject to such Lien) validly prohibits the creation of any other Lien on such assets and proceeds;

(d)any lease, license, contract, property right or agreement to which any Collateral Granting Loan Party is a party or any of its rights or interests thereunder if and only for so long as the grant of a security interest hereunder shall (A) constitute or result in a breach, termination or default under any such lease, license, contract, property right or agreement  or (B) be prohibited by applicable law, in each case, other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of the relevant jurisdiction or any other applicable law or principles of equity; provided, however, that such security interest shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified above and shall also attach to any proceeds of any excluded lease, license, contract, property rights or agreement;

(e)voting Capital Stock of any CFC constituting more than 65% of the issued and outstanding voting Capital Stock as determined for U.S. federal income tax purposes of such CFC;

(f)except for Capital Stock in Foreign Subsidiaries, any foreign collateral or credit support;

(g)assets owned by any Collateral Granting Loan Party on the Closing Date or thereafter acquired and the proceeds thereof in each case as to which the Collateral Agent and the Borrower reasonably determine in writing that the cost of obtaining such a security interest or perfection thereof is excessive in relation to the benefit of the security to be afforded thereby;

(h)any “intent-to-use” Trademark applications to the extent, if any, that the grant of a security interest therein would be in violation of the Trademark Act or result in the forfeiture of Collateral Granting Loan Parties’ rights therein; provided that such security interest shall attach immediately to such Trademark application upon the filing and acceptance of a statement of use or an amendment to allege use in connection with such Trademark application;

(i)any permit or license issued by a Governmental Authority or any agreement to which any Collateral Granting Loan Party is a party, in each case, only to the extent and for so long as the terms of such permit, license or agreement or any requirement of law applicable thereto, validly prohibit the creation by such Collateral Granting Loan Party of a security interest in such permit, license or agreement in favor of the Collateral Agent (other than to the extent that any such

​

​

​

​

term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of the relevant jurisdiction or any other applicable law or principles of equity);

(j)(i) any rights, title and interests in and to any receivables and related assets that have been transferred (or subjected to a security interest) from time to time in connection with the Existing Receivables Securitization Program or one or more other receivables securitization programs, in each case permitted and incurred pursuant to Section 5.02(b)(xi), (ii) all rights to, but not the obligations under, all Receivables Related Security that have been transferred (or subjected to a security interest) from time to time in connection with the Existing Receivables Securitization Program or one or more other receivables securitization programs, in each case permitted and incurred pursuant to Section 5.02(b)(xi), (iii) all monies due or to become due with respect to any of the foregoing set forth in clauses (i) and (ii) above, including all Receivables Records (as defined in the Security Agreement), (iv) all books and records related to any of the foregoing set forth in clauses (i) and (ii) above, and (v) all collections and other proceeds of any of the foregoing set forth in clauses (i) and (ii) above that are or were received by any Collateral Granting Loan Party or Receivables Financing Subsidiary, including all funds which either are received by such Collateral Granting Loan Party, the Receivables Financing Subsidiary, AROP or any servicer from or on behalf of the obligors in payment of any amounts owed (including invoice price, finance charges, interest and all other charges) in respect of receivables and related assets set forth in clauses (i) and (ii) above, or are applied to such amounts owed by the obligors (including insurance payments that such Collateral Granting Loan Party, Receivables Financing Subsidiary, AROP or servicer applies in the ordinary course of its business to amounts owed in respect of any receivable or related assets set forth in clauses (i) and (ii) above and net proceeds of sale or other disposition of repossessed goods or other collateral or property of the obligors or any other parties directly or indirectly liable for payment of such receivables or related assets); provided, that this clause (j) shall not include the purchase price owing or paid to the Collateral Granting Loan Parties under the agreements governing such receivables securitizations programs.

(k)any right, title and interests in and to all locomotives, rail cars, rolling stock and airplanes now or hereafter owned or leased by the Collateral Granting Loan Parties;

(l)the Collateral Granting Loan Parties’ timber to be cut other than to the extent encumbered by any Mortgage;

(m)Excluded Accounts; and

(n)Fixtures (as defined in the Security Agreement) located at the inactive and closed mining facilities identified on Schedule 1.01(a) to the extent and for so long as such mining facilities are inactive and closed.

The foregoing exclusions and limitations shall not apply to the Capital Stock or assets of any Foreign Subsidiary that becomes a Voluntary Guarantor, and it is acknowledged and agreed that collateral security (including foreign security) shall be negotiated in good faith by the Borrower and the Administrative Agent in the event that a Foreign Subsidiary becomes a Voluntary Guarantor, including taking into account customary local law limitations.

​

​

​

​

“Excluded Property” means (i) the inactive and closed mining facilities and other assets identified on Schedule 1.01(a), (ii) each Building specified on Schedule 1.01(d) and each other Building or Manufactured (Mobile) Home (as defined in the Flood Laws) located in a special flood hazard area that is immaterial as reasonably determined by the Borrower and agreed to in writing by the Collateral Agent and (iii) 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 Loan 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 Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Loan Party of, or the grant by such Loan 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 Loan 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 agreement” for the benefit of such Loan Party and any and all guarantees of such Loan Party’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Loan Party, or a grant by such Loan 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 applicable Commitment or, with respect to any applicable Advance that such Lender did not acquire pursuant to a prior Commitment, the date on which such Lender acquires the applicable interest in such Advance (in each case, 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 acquired the applicable interest in the

​

​

​

​

applicable Commitment or Advance or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Lender’s  failure to comply with Section 2.12(e), (d) any withholding Taxes imposed under FATCA and (e) any U.S. federal backup withholding under Section 3406 of the Code.

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

“Existing AROP Notes” means the 7.500% Senior Notes due May 1, 2025 issued by AROP pursuant to the Existing AROP Indenture in the original aggregate 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.

“Existing AROP Notes Refinancing Debt” means any Guaranties incurred by Borrower and/or any Subsidiary Guarantor of Debt issued in exchange for, or to extend, renew, replace, repurchase, retire, defease or otherwise refinance, in whole or part, Existing AROP Notes; provided that (a) such Debt and Guaranties shall not have a greater principal amount than the principal amount (or, if more than the principal amount, the accreted value) of the Existing AROP Notes so extended, renewed, replaced, repurchased, retired, defeased or otherwise refinanced plus accrued interest, fees, premiums (if any) and penalties thereon and fees and expenses associated with such extension, renewal, replacement, repurchase, retirement, defeasance or refinancing, (b) such Debt and Guarantees are unsecured and not an obligation of any Subsidiaries of the Borrower other than the Subsidiary Guarantors and (c) such Debt and Guarantees do not mature or have scheduled amortization or scheduled payments of principal, and are not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (other than customary offers to repurchase upon a change of control, asset sale or casualty event and customary acceleration rights after an event of default, in each case to the extent not on terms materially less favorable to the issuer thereof than to the issuer of the Existing AROP Notes), in each case in this clause (c) prior to the date that is 91 days after the Termination Date, assuming the proviso in the definition of Termination Date does not apply.

“Existing Credit Agreement” means the Fifth Amended and Restated Credit Agreement, dated as of March 9, 2020 (as amended, restated, modified, waived or otherwise changed, the “Existing Credit Agreement”) among MLP, AROP, JPMorgan Chase Bank, N.A., as administrative agent and the lenders and other parties thereto.

“Existing Debt” means Debt of the Borrower and its Subsidiaries and the Additional Alliance Entities outstanding immediately before the occurrence of the Closing Date.

“Existing Letters of Credit” means those letters of credit outstanding on the Closing Date and identified on Schedule III.

“Existing Receivables Securitization Program” the receivables securitization program evidenced by the Receivables Financing Agreement, dated as of December 5, 2014, by and among, inter alios, AROP Funding, LLC, as borrower, Alliance Coal, LLC, as initial servicer and PNC Bank, National Association, as administrative agent (as the same may be amended,

​

​

​

​

restated, supplemented, replaced or otherwise modified from time to time; provided that no such amendment, restatement, supplement, replacement or modification shall cause such securitization program to not be permitted hereunder).

“Facility” means the Revolving Credit Facility, the Term Loan Facility, the Letter of Credit Facility or the Swing Line Facility, as the context may require.

“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 thereunder or official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above), any published intergovernmental agreement (and related legislation or official guidance) implementing the foregoing.

“FCC Test Period” has the meaning specified in the definition of “Fixed Charge Ratio.”

“Federal Funds Rate” means, for any day the rate per annum (based on a year of 360 days and actual days elapsed and rounded upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New York (or any successor) on such day as being the weighted average of the rates on overnight federal funds transactions arranged by federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank (or any successor) in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the “Effective Federal Funds Rate” as of the date of this Agreement; provided that if such Federal Reserve Bank (or its successor) does not announce such rate on any day, the “Federal Funds Rate” for such day shall be the Federal Funds Rate for the last day on which such rate was announced.  Notwithstanding the foregoing, if the Federal Funds Rate as determined under any method above would be less than zero percent (0.00%), such rate shall be deemed to be zero percent (0.00%) for purposes of this Agreement.

“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 Subsidiaries for each rolling four-quarter period (any such period,

​

​

​

​

a “FCC Test Period”); provided that in the event that the Borrower or any 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 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 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 Subsidiary or was merged with or into the Borrower or any 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).

“Flood Laws” means each of the following as now or hereafter in effect of any successor statute thereto: (i) the National Flood Insurance Act of 1994, (ii) the Flood Insurance Reform Act of 2004, (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 and (iv) all other applicable Laws relating to policies and procedures that address requirements placed on federally regulated lenders relating to flood matters.

​

​

​

​

“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Term SOFR Rate or Daily SOFR, as applicable, or, if no floor is specified, zero.

“Foreign Lender” means a Lender that is not a U.S. Person.

“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.

“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Issuing Banks, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Obligations with respect to Letters of Credit issued by such Issuing Bank other than Letter of Credit Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to any Swing Line Bank, such Defaulting Lender’s Pro Rata Share of outstanding Swing Line Advances made by such Swing Line Bank other than Swing Line Advances as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.

“Fund” means any Person (other than a natural Person) that is  engaged in making, purchasing, holding or otherwise investing in commercial loans  similar extensions of credit in the ordinary course of its activities.

“GAAP” has the meaning specified in Section 1.03.

“General Partner” has the meaning specified in Section 8.20

“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.

“Guarantors” means MLP, AROP, the UC Guarantors, the Manager/GP Guarantor and the Subsidiary Guarantors, collectively, and “Guarantor” means any of MLP, AROP, the UC Guarantors, the Manager/GP Guarantor 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 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, as of the Closing Date or at the time it enters into an interest rate Swap Contract permitted under Section 5.02, is the Administrative Agent, the Collateral Agent or a Lender or an Affiliate of the Administrative Agent, the Collateral Agent or a Lender, in its capacity as a party to such Swap Contract.

“ICR Test Period” has the meaning specified in the definition of “Interest Coverage Ratio.”

“Identified Immaterial Subsidiaries” means the Subsidiaries of Borrower listed on Schedule IV.

“Immaterial Subsidiary” means any Subsidiary other than a Material Subsidiary.

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

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

​

​

​

​

“Ineligible Assignee” means (a) any Loan Party 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.

“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.

“Interest Coverage Ratio” means, at any date of determination, the ratio of Consolidated Cash Flow of the Borrower and its Subsidiaries as at the end of (x) prior to the first required delivery of financial statements hereunder pursuant to Section 5.03, the fiscal quarter ended September 30, 2022 and (y) thereafter, the most recently ended fiscal quarter of the Borrower (and in the case of year-end financial statements, the last fiscal quarter of such year) 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 Subsidiaries for such applicable fiscal quarter in clause (x) or (y) above and the immediately preceding three fiscal quarters (any such period, the “ICR Test Period”); provided that in the event that the Borrower or any 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 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 Subsidiary or was merged with or into the Borrower or any 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 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, the period of time selected by the Borrower in connection with (and to apply to) any election permitted hereunder by the Borrower to have Revolving Credit Advances or Term Loan Advances bear interest under the Term SOFR Rate Option.  Subject to the last sentence of this definition, such period shall be, in each case, subject to the availability thereof, one month, three months, or six months.  Such Interest Period shall commence on the effective date of such Term SOFR Rate Option, which shall be (i) the date of such Borrowing if the Borrower is requesting new Advances, or (ii) the date of renewal of or conversion to the Term SOFR Rate Option if the Borrower is renewing or converting to the Term SOFR Rate Option applicable to outstanding Advances.  Notwithstanding the second sentence hereof: (A) any Interest Period which would otherwise end on a date which is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (B) with respect to Revolving Credit Advances, the Borrower shall not select, convert to or renew an Interest Period for any portion of the Advances that would end after the Termination Date, (C) with respect to Term Loan Advances, the Borrower shall not select, convert to or renew an Interest Period for any portion of the Advances that would end after the Termination Date, and (D) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.

​

​

​

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

“Investment” means any investment, made in cash or Cash Equivalents or by delivery of property, by the Borrower or any of its 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 outstanding 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 Revolving Credit 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 Revolving Credit 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 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 Revolving Credit Lender or Eligible Assignee (subject to such Revolving Credit Lender’s or Eligible Assignee’s consent) become 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.

“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 Subsidiaries hold an ownership interest, (b) which is an unincorporated joint venture of the Borrower or any Subsidiary or (c) any Subsidiary of the Borrower which is not Wholly Owned by the Borrower or any other Wholly Owned Subsidiary of the Borrower.

“Junior Debt” means any Debt that is Specified Debt or Debt incurred or outstanding pursuant to Section 5.02(b)(ii), 5.02(b)(iii) or 5.02(b)(iv).

“Law” means any law(s) (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, issued guidance, release, ruling, order, executive order, injunction, writ, decree or judgment, of any Governmental Authority, foreign or domestic.

“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.

“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.

“Lending Office” means, with respect to any Lender, the office of such Lender specified as its “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.

“Letter of Credit” has the meaning specified in Section 2.01(d). As of the Closing Date, each of the Existing Letters of Credit shall constitute, for all purposes of this Agreement and the other Loan Documents, a Letter of Credit issued and outstanding hereunder.

“Letter of Credit Advance” has the meaning specified in Section 2.03.

“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 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, the aggregate amount of the Issuing Banks’ Letter of 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.

“Letter of Credit Fee” has the meaning specified in Section 2.08(b).

​

​

​

​

“Letter of Credit Obligations” means, as of any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit on such date (if any Letter of Credit shall increase in amount automatically in the future, such aggregate amount available to be drawn shall currently give effect to any such future increase) plus the aggregate Reimbursement Obligations and Letter of Credit Advances on such date.

“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 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.

“Liquidity” means, at any time, the amount equal to (a) unrestricted cash and Cash Equivalents held by the Borrower and the Subsidiary Guarantors 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 of cash in U.S. dollars available to be drawn by any Receivables Financing Subsidiary under any permitted receivables securitization facility (to the extent such cash is then available to be drawn, distributed or paid, directly or indirectly, to Borrower or Subsidiary Guarantors) minus (d) any cash or Cash Equivalents that would qualify for exclusion from Excess Balance Sheet Cash pursuant to one or more of clauses (a) through (c) of the definition thereof.

“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) the Collateral Documents, (e) each Letter of Credit Agreement, (f) each Receivables Financing Intercreditor Letter 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 Guarantors.

“Maintenance Cap Ex” means Borrower’s and its 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.

“Manager/GP Guarantor” has the meaning specified in the Preamble.

“Margin Stock” has the meaning specified in Regulation U.

“Master Agreement” has the meaning specified in the definition of “Swap Contract.”

“Material Acquired Real Properties” means a real property or group of related real properties, acquired or leased, by the Borrower or any other Collateral Granting Loan Party after

​

​

​

​

the Closing Date in a single transaction or a series of related transactions involving a single 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 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 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 Guarantor to perform its payment obligations or other material obligations under the Subsidiary Guaranty, the Additional Alliance Entity Guaranty or this Agreement, as applicable, or (d) the validity or enforceability of any Loan Document.

“Material Contract” shall mean any contract, agreement or other instrument to which the Borrower or any of its Subsidiaries is or becomes party, the termination, breach or non-renewal of which could reasonably be expected to result in a Material Adverse Change.

“Material Subsidiary” means any Domestic Subsidiary (other than (A) any Receivables Financing Subsidiary and (B) any other Subsidiary that is formed solely for the purpose of acting, and acts solely as, as a captive insurance company, including the Insurance Subsidiary) of 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.

“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 Subsidiaries, any Reactivated Mining Facility, and all additional parcels and tracts of real property acquired by any Collateral Granting 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 Closing Date.

“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 105% of the Fronting Exposure of the Issuing Banks with respect to Letters of Credit issued and outstanding at such time and (b) otherwise, an amount determined by the Administrative Agent and the Issuing Banks in their sole discretion.

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

“Mining Leases” means each contract, agreement or lease to which any Collateral Granting Loan Party is a party granting such Collateral Granting 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.

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

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

“Mortgaged Property” means the right, title and interest of the Borrower or other applicable Collateral Granting Loan Party in (a) Closing Date Identified Properties from and after the time such Closing Date Identified Properties are made subject to Mortgages pursuant to Section 5.01(o)(ii), and (b) each other real property, if any, which shall be subject to a mortgage delivered after the Closing 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.

“Non-Coal Investment” means any Investment in assets or Person that operates in a business other than (i) the extraction or processing of coal or (ii) a business ancillary to the extraction or processing of coal.

“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-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

“Non-Extension Notice Date” has the meaning specified in Section 2.03.

“Note” means a Revolving Credit Note or Term Loan Note.

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

“Notice of Conversion” has the meaning specified in Section 2.09.

“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).

“NPL” means the National Priorities List under CERCLA.

“Obligation” means, with respect to any Loan Party, any payment, performance or other obligation of such Loan Party or any of the Borrower’s 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 Agreement, including, without limitation, any liability of such Loan 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 Loan Party under any Loan Document, (b) the obligation of such Loan 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 Loan Party and (c) interest and other monetary obligations accruing during the pendency of any proceeding referred to in Section 6.01(f) (regardless of whether allowed or allowable in such proceeding).  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).

“Order” has the meaning specified in Section 2.03(g).

“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 Administrative Agent and the jurisdiction imposing such Tax (other than any connection arising from such Lender or Administrative Agent, as applicable, 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 Letter of Credit, or sold or assigned an interest in any Advance, Loan Document or Letter of Credit).

“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 for (i) any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.17) and (ii) Excluded Taxes.

“Overnight Bank Funding Rate” means for any day, the rate comprised of both overnight federal funds and overnight eurocurrency borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the Federal Reserve Bank of New York, as set forth on its public website from time to time, and as published on the next

​

​

​

​

succeeding Business Day as the overnight bank funding rate by the Federal Reserve Bank of New York (or by such other recognized electronic source (such as Bloomberg) selected by the Administrative Agent for the purpose of displaying such rate); provided, that if such day is not a Business Day, the Overnight Bank Funding Rate for such day shall be such rate on the immediately preceding Business Day; provided, further, that if such rate shall at any time, for any reason, no longer exist, a comparable replacement rate reasonably determined by the Administrative Agent at such time (which determination shall be conclusive absent manifest error). If the Overnight Bank Funding Rate determined as above would be less than zero, then such rate shall be deemed to be zero. The rate of interest charged shall be adjusted as of each Business Day based on changes in the Overnight Bank Funding Rate without notice to the Borrower.

“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.

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

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

“Participation Advance” has the meaning specified in Section 2.03(b).

“Payment Recipient” has the meaning specified in Section 7.15(a).

“Payor” has the meaning specified in Section 8.17.

“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 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 Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Borrower or a Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of the Borrower or such 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 $20,000,000; 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 Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Borrower or a Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of the Borrower or such 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, 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 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.

“Platform” means Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system.

​

​

​

“Post-Petition Interest” has the meaning specified in Section 9.08(b).

“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 interest rate per annum announced from time to time by the Administrative Agent at its Principal Office as its then prime rate, which rate may not be the lowest or most favorable rate then being charged to commercial borrowers or others by the Administrative Agent and may not be tied to any external rate of interest or index. Any change in the Prime Rate shall take effect at the opening of business on the day such change is announced.

“Principal Office” means the main banking office of the Administrative Agent in Pittsburgh, Pennsylvania.

“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 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 (or, in the case of the Term Loan Facility, the principal amount of such Lender’s Term Loan Advances) at such time and the denominator of which is the amount of the aggregate Commitments under the applicable Facility or Facilities (or, in the case of the Term Loan Facility, the aggregate principal amount of the Term Loan Advances of all Term Lenders) 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 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).

“QFC Credit Support” has the meaning specified in Section 8.16.

“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 Subsidiary after the Closing Date and all additional parcels and tracts of real property owned or leased by a Collateral Granting Loan Party that are associated with such reopened or reactivated facility.

“Receivables Financing Subsidiary” means AROP Funding and any Subsidiary of the Borrower or a Loan Party that is formed solely for the purpose of engaging in, and engages in, one or more receivables financing transaction pursuant to Section 5.02(b)(xi).

“Receivables Financing Intercreditor Letter Agreement” means any intercreditor agreement or other letter agreement between the Collateral Agent and any securitization lender(s) (or their authorized representative) of any receivables securitization facilities permitted hereunder, in form and substance reasonably satisfactory to the Collateral Agent, including, the letter agreement attached hereto as Exhibit J (the “Closing Date Receivables Financing Intercreditor Letter Agreement”).

“Receivables Related Security” means with respect to any receivable and related assets which are transferred (or subject to a security interest) as part of one or more receivables securitization programs permitted by Section 5.02(b)(xi):

(1)all of the applicable Receivables Financing Subsidiary’s, the Collateral Granting Loan Parties’ or AROP’s interest in any goods (including returned goods), and documentation of title evidencing the shipment or storage of any goods (including returned goods), the sale of which gave rise to such receivable and related assets,

(2)all instruments and chattel paper that may evidence such receivable and related assets,

(3)all other security interests or liens and property subject thereto from time to time purporting to secure payment of such receivable and related assets, whether pursuant to the contract related to such receivable and related assets or otherwise, together with all UCC financing statements or similar filings relating thereto,

(4)all of the applicable Receivables Financing Subsidiary’s, the Collateral Granting Loan Parties’ and AROP’s rights, interests and claims under the related contracts

​

​

​

​

and all guaranties, indemnities, insurance and other agreements (including the related contract) or arrangements of whatever character from time to time supporting or securing payment of such receivable and related assets or otherwise relating to such receivable and related assets, whether pursuant to the contract related to such receivable and related assets or otherwise, and

(5)all of the applicable Receivables Financing Subsidiary’s, the Collateral Granting Loan Parties’ and AROP’s rights, interests and claims under the sale, financing and other agreements and promissory notes, certificates, instruments, UCC financing statements, reports, notices and documents executed or delivered under or in connection with receivables securitization programs permitted by Section 5.02(b)(xi).

“Recipient” means (a) the Administrative Agent, (b) any Lender, (c) any Issuing Bank and (d) any other Secured Party, as applicable.

“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.

“Reimbursement Obligation” means as is specified in Section 2.03(b).

“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 Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or any successor thereto.

“Removal Effective Date” has the meaning specified in Section 7.06(b).

“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 Subsidiaries from an Acceptable Bank or an Acceptable Broker-Dealer against a transfer of funds (the “Transfer Price”) by the Borrower or such Subsidiary to such Acceptable Bank or Acceptable Broker-Dealer, and (ii) a simultaneous agreement by the Borrower or such 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 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 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 Flood Materials” has the meaning specified in Section 5.01(i).

“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.

“Required Share” has the meaning specified in Section 2.20.

“Resignation Effective Date” has the meaning specified in Section 7.06(a).

“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

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

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

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

“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 Person (a) the amount set forth opposite such Person’s name on Schedule I hereto under the caption “Revolving Credit Commitment” or (b) if such Person has entered into one or more Assignment and Assumptions, the amount set forth for such Person in the Register maintained by the Administrative Agent pursuant to Section 8.07(b)(iv) as such Person’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 Person 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 Closing Date, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea region of the Ukraine, the non-Ukrainian government controlled areas of the Kherson and Zaporizhzhia regions of Ukraine, Cuba, Iran, North Korea 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 His 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 clause (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 Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or His Majesty’s Treasury of the United Kingdom.

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

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

“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Issuing Banks, 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.

“Settlement Date” means the applicable Business Day on which the Administrative Agent elects to effect settlement pursuant Section 2.20.

“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.

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

“SOFR Adjustment” means with respect to any Interest Period, the following:

​

​

The SOFR Adjustment for Daily SOFR shall be the SOFR Adjustment for a 1-month period

“SOFR Determination Date” has the meaning specified in the definition of “Daily Simple SOFR.”

“SOFR Floor” means a rate of interest per annum equal to 0.0%.

“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR.”

“SOFR Reserve Percentage” shall mean, for any day, the maximum effective percentage in effect on such day, if any, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the reserve requirements (including, without

​

​

​

​

limitation, supplemental, marginal and emergency reserve requirements) with respect to SOFR funding.

“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)(xiii).

“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.

“Specified Debt” means (x) any Existing AROP Notes, (y) any Debt of Borrower or any of its Subsidiaries incurred under Section 5.02(b)(ii), Section 5.02(b)(iii) or Section 5.02(b)(iv) (including, for the avoidance of doubt, any Debt that constitutes Debt of Borrower or a Subsidiary due to its Guaranty issued with respect thereto), to the extent and in the principal amount issued or incurred in exchange for or upon conversion (whether such Debt (or the proceeds thereof) is so applied for such exchange or conversion upon issuance thereof or, to the extent set aside or otherwise earmarked therefor, thereafter) of any Existing AROP Notes or (z) any Debt of Borrower or any of its Subsidiaries incurred under Section 5.02(b)(ii),  Section 5.02(b)(iii) or Section 5.02(b)(iv) (including, for the avoidance of doubt, any Debt that constitutes Debt of Borrower or a Subsidiary due to its Guaranty issued with respect thereto) to the extent and in the principal amount issued or incurred  to refinance, repurchase or redeem (whether such Debt (or the proceeds thereof) is so applied for such refinancing, repurchase or redemption upon issuance or incurrence thereof or, to the extent set aside or otherwise earmarked therefor, thereafter) any of the Debt referred to in clause (x) or (y) of this sentence, in each case in each of clauses (x), (y) and (z) to the extent such Debt  has a stated maturity or has mandatory principal payments (other than customary offers to repurchase upon a change of control, asset sale or casualty event and customary acceleration rights after an event of default) due on a date that is before 91 days after March 9, 2027.

“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, 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.”

“Springing Maturity Date” means January 30, 2025.

​

​

​

​

“Standby Letter of Credit” means a Letter of Credit issued to support obligations of one or more of the Loan Parties, contingent or otherwise, which finance the working capital and business needs of the Loan Parties incurred in the ordinary course of business.

“Subordinated Obligations” has the meaning specified in Section 9.08.

“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 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.  Unless otherwise clear from context, any “Subsidiary” shall be deemed a Subsidiary of the Borrower.

“Subsidiary Guarantors” means (x) 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(p) and (y) each Voluntary Guarantor.

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

“Supported QFC” has the meaning specified in Section 8.16.

“Surviving Debt” means Debt of the Borrower and its Subsidiaries and the Additional Alliance Entities 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 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 PNC.

“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 Lender” means a Lender holding a Term Loan Commitment, or following the funding of the Term Loan Commitments on the Closing Date, a Term Loan Advance.

“Term Loan Advance” has the meaning specified in Section 2.01(a).

“Term Loan Borrowing” means a borrowing consisting of Term Loan Advances made by the Term Lenders.

​

​

​

​

“Term Loan Commitment” means, as to any Person at any time, the amount initially specified opposite such Person’s name on Schedule I under the caption “Term Loan Commitment” or (b) if such Person has entered into one or more Assignment and Assumptions, the amount set forth for such Person in the Register maintained by the Administrative Agent pursuant to Section 8.07(b)(iv) as such Person’s “Term Loan 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

“Term Loan Facility” means, at any time, the aggregate amount of the Term Lenders’ outstanding Term Loan Advances 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 or by payment thereof.

“Term Loan Note” means a promissory note of the Borrower payable to the order of any Term Lender, issued upon request by such Term Lender pursuant to Section 2.16(a), in substantially the form of Exhibit A-1, evidencing the aggregate indebtedness of the Borrower to such Term Lender resulting from the Term Loan Advances made by such Term Lender.

“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).

“Term SOFR Determination Date” has the meaning specified in the definition of “Term SOFR Rate.”

“Term SOFR Rate” shall mean, with respect to any amount to which the Term SOFR Rate Option applies, for any Interest Period, the interest rate per annum determined by the Administrative Agent by dividing (the resulting quotient rounded upwards, at the Administrative Agent’s discretion, to the nearest 1/100th of 1%) (A) the Term SOFR Reference Rate for a tenor comparable to such Interest Period, as such rate is published by the Term SOFR Administrator on the day (the “Term SOFR Determination Date”) that is two (2) Business Days prior to the first day of such Interest Period, by (B) a number equal to 1.00 minus the SOFR Reserve Percentage.  If the Term SOFR Reference Rate for the applicable tenor has not been published or replaced with a Benchmark Replacement by 5:00 p.m. (Pittsburgh, Pennsylvania time) on the Term SOFR Determination Date, then the Term SOFR Reference Rate, for purposes of clause (A) in the preceding sentence, shall be the Term SOFR Reference Rate for such tenor on the first Business Day preceding such Term SOFR Determination Date for which such Term SOFR Reference Rate for such tenor was published in accordance herewith, so long as such first preceding Business Day is not more than three (3) Business Days prior to such Term SOFR Determination Date.  If the Term SOFR Rate, determined as provided above, would be less than the SOFR Floor, then the Term SOFR Rate shall be deemed to be the SOFR Floor.  The Term SOFR Rate shall be adjusted automatically without notice to the Borrower on and as of (i) the first day of each Interest Period, and (ii) the effective date of any change in the SOFR Reserve Percentage.

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

​

​

​

​

“Term SOFR Rate Option” means the option of the Borrower to have Term Loan Advances and Revolving Credit Advances bear interest at the rate and under the terms specified in Section 2.07(a)(ii).

“Term SOFR Reference Rate” shall mean the forward-looking term rate based on SOFR.

“Termination Date” means the earlier of (i) March 9, 2027; provided that if (x) any Specified Debt is outstanding on the Springing Maturity Date and (y) after giving effect to any repayment in cash of any Specified Debt on the Springing Maturity Date, Liquidity as of the Springing Maturity Date is less than $200,000,000, the Termination Date pursuant to this clause (i) shall be the Springing Maturity Date and (ii) with respect to the Revolving Credit Commitments, the Letter of Credit Commitment, the Swing Line Commitment and the Revolving Credit Facility, 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.

“Title Practices Certificate” has the meaning specified in Section 5.01(i).

“Trademarks” means, with respect to any Person, all of such Person’s right, title, and interest in and to the following:  (a) all trademarks (including service marks), trade names, trade dress, and trade styles and the registrations and applications for registration thereof and the goodwill of the business symbolized by the foregoing; (b) all renewals of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims, and payments for past and future infringements thereof; (d) all rights to sue for past, present, and future infringements of the foregoing, including the right to settle suits involving claims and demands for royalties owing; and (e) all rights corresponding to any of the foregoing throughout the world.

“Transaction” means, collectively, (a) the entering into by the Loan Parties of the Loan Documents on the Closing Date, (b) the creation of Liens pursuant to the Collateral Documents on the Closing Date, (c) the making of the Advances and the issuance of the Letters of Credit under this Agreement on the Closing Date, and (d) the payment of the fees and expenses incurred in connection with the consummation of the foregoing.

“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) or 5.02(e), (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).

“Transfer Price” has the meaning specified in the definition of “Repurchase Agreement.”

“Type” refers to the distinction between Advances bearing interest at the Base Rate, Advances bearing interest at the Term SOFR Rate and Advances bearing interest at the Daily SOFR.

​

​

​

​

“UC Coal” has the meaning specified in the Preamble.

“UC Guarantors” has the meaning specified in the Preamble.

“UC Mining” has the meaning specified in the Preamble.

“UC Processing” has the meaning specified in the Preamble.

“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.

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

“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. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

“U.S. Special Resolution Regimes” has the meaning specified in Section 8.16.

“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 sum of (i) the aggregate Available Amount of all Letters of Credit issued by such Issuing Bank and (ii) the aggregate principal amount of all Reimbursement Obligations owed to such Issuing Bank and Letter of Credit Advances made by such Issuing Bank.

​

​

​

​

“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(c) and outstanding at such time.

“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

“U.S. Government Securities Business Day” means any day except for (a) a Saturday or Sunday or (b) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

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

“Voluntary Guarantor” has the meaning specified in Section 5.01(i).

“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 outstanding Capital Stock (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, (a) 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, and (b) with respect to the United Kingdom,  any powers of the applicable Resolution Authority  under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution  or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to

​

​

​

​

provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

SECTION 1.02Computation 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. Any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time. When used herein, “repurchase” shall also be deemed to include “purchase” and vice versa.  Whenever the context may require, any pronoun in this Agreement or any other Loan Document shall include the corresponding masculine, feminine and neuter forms. Section headings herein and in each other Loan Document are included for convenience and shall not affect the interpretation of this Agreement or such Loan Document. Unless otherwise specified, all references herein to times of day shall constitute references to Eastern Time.

SECTION 1.03Accounting 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 Closing Date to the 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 CoalCo 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 1.04Benchmark Replacement Notification.  Section 2.07(d) of this Agreement provides a mechanism for determining an alternative rate of interest in the event that the Term SOFR Rate or Daily SOFR, as applicable, is no longer available or in certain other circumstances. 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 Term SOFR Rate or Daily SOFR or with respect to any alternative or successor rate thereto, or replacement rate therefor.

SECTION 1.05Divisions.  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 2.01The Advances and the Letters of Credit.

(a)Term Loan Advances.  Each Term Lender severally agrees, on the terms and conditions hereinafter set forth, to make advances (each, a “Term Loan Advance”) to the Borrower on the Closing Date in an aggregate principal amount for each such Term Loan Advance equal to such Term Lender’s Term Loan Commitment.  Once prepaid or repaid, Term Loan Advances may not be reborrowed. Term Loan Advances may be Term SOFR Rate Advances or Base Rate Advances, as further set forth herein.

(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 Closing Date until the Termination Date in an amount for each such Advance not to exceed such Revolving Credit Lender’s Unused Revolving Credit Commitment at such time.  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 Term SOFR 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 Section 2.06(a) or the other applicable provisions of this Agreement and reborrow under this Section 2.01(b).  Revolving Credit Advances may be Term SOFR Rate Advances or Base Rate Advances, as further set forth herein.

(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 period from the Closing 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 Daily SOFR 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 Section 2.06(a) or Section 2.06(b) or the other applicable provisions of this Agreement and reborrow under this Section 2.01(c).

(d)The Letters of Credit.  The Borrower may at any time prior to the Termination Date request the issuance of a letter of credit (each, a “Letter of Credit”) for its own account or the account of another Loan Party (provided that Letters of Credit for which a Person other than the Borrower or a Subsidiary Guarantor is an Account Party shall be limited to an aggregate Available Amount of all such Letters of Credit of $50,000,000) or the amendment or extension of an existing Letter of Credit, by delivering or transmitting electronically, or having such other Loan Party deliver or transmit electronically to the applicable Issuing Bank (with a copy to the Administrative Agent) a completed application for letter of credit, or request for such amendment or extension, as applicable, in such form as such Issuing Bank may specify from time to time by no later than 10:00 a.m. Eastern Time at least five (5) Business Days, or such shorter period as may be agreed to by such Issuing Bank, in advance of the proposed date of issuance.  The Borrower shall authorize and direct the applicable Issuing Bank to name the Borrower or Subsidiary Guarantor as the “Applicant” or “Account Party” of each Letter of Credit, whether or not such Letter of Credit is for the account of the Borrower or such Subsidiary Guarantor.  Promptly after receipt of any letter of credit application, the applicable Issuing Bank shall confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit application and if not, such Issuing Bank will provide the Administrative Agent with a copy thereof.

As of the Closing Date, each of the Existing Letters of Credit shall constitute, for all purposes of this Agreement and the other Loan Documents, a Letter of Credit issued and outstanding hereunder.

(e)The obligations of each Lender hereunder are several.  The failure of any Lender to perform its obligations hereunder shall not affect the Obligations of the Borrower or any other Loan Party to any other party nor shall any other party be liable for the failure of such Lender to perform its obligations hereunder.

​

​

​

​

SECTION 2.02Making the Advances.  (a)  Except as otherwise provided in Section 2.02(b) or Section 2.03, each Borrowing (other than a Swing Line 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 Term SOFR 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 Class of Advance to be made, (iv) the requested aggregate principal amount of such Borrowing and (v) in the case of a Borrowing consisting of Term SOFR 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 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.  After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Section 3.02, 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 Section 3.02, 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 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 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 Term SOFR Rate Advances 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 Term SOFR Rate Advances shall then be suspended pursuant to Section 2.07(d), Section 2.09(b)(ii) or Section 2.10(c) and (ii) Advances in respect of the Facility may not be outstanding as part of more than ten separate Borrowings with different Interest Periods in aggregate under the 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 2.03Letter of Credit Subfacility.  (a)  Issuance of Letters of Credit.

(i)Unless the applicable Issuing Bank has received notice from any Revolving Credit Lender, the Administrative Agent or any Loan Party, at least one (1) day prior to the requested date of issuance, amendment or extension of the applicable Letter of Credit pursuant to Section 2.01(d), that one or more applicable conditions in Section 3.02 is not satisfied, then, subject to the terms and conditions hereof and in reliance on the agreements of the other Revolving Credit Lenders specified in this Section 2.03, such Issuing Bank or any of such Issuing Bank’s Affiliates will issue the proposed Letter of Credit or agree to such amendment or extension so requested pursuant to Section 2.01(d); provided that each Letter of Credit shall (A) unless such Issuing Bank agrees otherwise, have a maximum maturity of twelve (12) months from the date of issuance, and (B) in no event expire later than ten (10) Business Days prior to the Termination Date (assuming for this purpose that the Termination Date is the earliest possible date that it may be pursuant to the definition thereof, but it being understood that if clause (x) of the definition of Termination Date is not applicable, then the proviso to clause (i) of the definition of Termination Date shall not apply) unless such Letter of Credit is Cash Collateralized or backstopped (by a backstop letter of credit from an issuer reasonably satisfactory to the relevant Issuing Bank) at the time of issuance thereof and at all times thereafter in a minimum amount of 105% or Borrower backstops such Letter of Credit pursuant to other arrangements satisfactory to such Issuing Bank in its discretion; provided, further, that in no event shall (1) the Letter of Credit Obligations exceed, at any one time, the aggregate Letter of Credit Commitments of the Issuing Banks, (2) the stated amount of any such proposed Letter of Credit exceed the Unused Letter of Credit Commitment of the applicable Issuing Bank or (3) the stated amount of any such Letter of Credit exceed the aggregate Unused Revolving Credit Commitments of the Revolving Credit Lenders at such time.  Each request by the Borrower for the issuance, amendment or extension of a Letter of Credit shall be deemed to be a representation by the Borrower that it shall be in compliance with the preceding sentence and with Section 3.02 after giving effect to the requested issuance, amendment or extension of such Letter of Credit.  Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to the beneficiary thereof, the applicable Issuing Bank will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. The Borrower hereby grants to the Administrative Agent, for the benefit of each Issuing

​

​

​

​

Bank and the Revolving Credit Lenders, a security interest in all Cash Collateral pledged pursuant to this Section or otherwise under this Agreement.

If the Borrower so requests in any applicable request for a Letter of Credit, any Issuing Bank may, in its discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit such Issuing Bank to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by such Issuing Bank, the Borrower shall not be required to make a specific request to such Issuing Bank for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders shall be deemed to have authorized (but may not require) such Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the Termination Date; provided, however, that such Issuing Bank shall not permit any such extension if (A) such Issuing Bank has determined that it would not be permitted to issue such Letter of Credit in its revised form (as extended) under the terms hereof, or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Revolving Credit Lender or the Borrower that one or more of the applicable conditions specified in Section 3.02 are not then satisfied, and in each such case directing such Issuing Bank not to permit such extension.

(ii)Notwithstanding Section 2.03(a)(i), no Issuing Bank shall be under any obligation to issue any Letter of Credit if (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing the Letter of Credit, or any law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or any such order, judgment or decree, or law request or directive, shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Issuing Bank in good faith deems material to it, (B) the issuance of the Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally or (C) any Revolving Credit Lender is at that time a Defaulting Lender, unless such Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such Issuing Bank (in its sole discretion) with the Borrower or such Revolving Credit Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.15) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Letter of Credit Obligations as to which such Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion.

​

​

​

​

(b)Disbursements, Reimbursement.  Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable Issuing Bank a participation in such Letter of Credit and each drawing thereunder in an amount equal to such Revolving Credit Lender’s Pro Rata Share of the maximum amount available to be drawn under such Letter of Credit and the amount of such drawing, respectively.

(i)In the event of any request for a drawing under a Letter of Credit by the beneficiary or transferee thereof, the applicable Issuing Bank will promptly notify the Borrower and the Administrative Agent thereof.  Provided that it shall have received such notice, the Borrower shall reimburse (such obligation to reimburse such Issuing Bank shall sometimes be referred to as a “Reimbursement Obligation”) such Issuing Bank prior to 12:00 noon on the second Business Day after an amount is paid by such Issuing Bank under any Letter of Credit (each such date, a “Drawing Date”) by paying to the Administrative Agent for the account of such Issuing Bank an amount equal to the amount so paid by such Issuing Bank.  In the event the Borrower fails to reimburse such Issuing Bank (through the Administrative Agent) for the full amount of any drawing under any Letter of Credit by 12:00 noon on the second Business Day after the Drawing Date, the Administrative Agent will promptly notify each Revolving Credit Lender thereof, and the Borrower shall be deemed to have requested that Revolving Credit Advances be made by the Revolving Credit Lenders under the Base Rate Option to be disbursed on the Drawing Date under such Letter of Credit, subject to the sufficiency of Unused Revolving Credit Commitments of the Revolving Credit Lenders and subject to the conditions specified in Section 3.02 other than any notice requirements.  Any notice given by the Administrative Agent or Issuing Bank pursuant to this Section 2.03(b)(i) may be oral if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.  It shall not be a Default hereunder, to the extent Borrower has availability of adequate Revolving Credit Advances under the Revolving Credit Facility to fund the Reimbursement Obligation (including, for the avoidance of doubt, the ability to satisfy the conditions to borrowing in Section 3.02), for Borrower to elect to fund any Reimbursement Obligation from Revolving Credit Advances as contemplated above as opposed to direct payment by the Borrower to the Issuing Bank to fund the Reimbursement Obligation.

(ii)Each Revolving Credit Lender shall upon any notice pursuant to Section 2.03(b)(i) make available to the Administrative Agent for the account of the applicable Issuing Bank an amount in immediately available funds equal to its Pro Rata Share of the amount of the drawing, whereupon the participating Revolving Credit Lenders shall (subject to this Section 2.03(b)) each be deemed to have made a Revolving Credit Advance under the Base Rate Option to the Borrower in that amount.  If any Revolving Credit Lender so notified fails to make available to the Administrative Agent for the account of such Issuing Bank the amount of such Revolving Credit Lender’s Pro Rata Share of such amount by no later than 2:00 p.m. Eastern Time on the Drawing Date, then interest shall accrue on such Revolving Credit Lender’s obligation to make such payment, from the Drawing Date to the date on which such Revolving Credit Lender makes such payment (A) at a rate per annum equal to the Federal Funds Rate during the first three (3) days following the Drawing Date and (B) at a rate per annum equal to the rate applicable

​

​

​

​

to Revolving Credit Advances under the Base Rate Option on and after the fourth day following the Drawing Date.  The Administrative Agent and such Issuing Bank will promptly give notice (as described in Section 2.03(b)(i) above) of the occurrence of the Drawing Date, but failure of the Administrative Agent or such Issuing Bank to give any such notice on the Drawing Date or in sufficient time to enable any Revolving Credit Lender to effect such payment on such date shall not relieve such Revolving Credit Lender from its obligation under this Section 2.03(b)(ii).

(iii)With respect to any unreimbursed drawing that is not converted into Revolving Credit Advances under the Base Rate Option to the Borrower in whole or in part as contemplated by Section 2.03(b)(i), because of the Borrower’s failure to satisfy the conditions specified in Section 3.02 other than any notice requirements, or for any other reason, the Borrower shall be deemed to have incurred from the applicable Issuing Bank a borrowing (each a “Letter of Credit Advance”) in the amount of such drawing.  Such Letter of Credit Advance shall be due and payable on demand (together with interest) and shall bear interest at the rate per annum applicable to the Revolving Credit Advances under the Base Rate Option.  Each Revolving Credit Lender’s payment to the Administrative Agent for the account of such Issuing Bank pursuant to this Section 2.03(b) shall be deemed to be a payment in respect of its participation in such Letter of Credit Advance (each, a “Participation Advance”) from such Revolving Credit Lender in satisfaction of its participation obligation under this Section 2.03(b).

(c)Repayment of Participation Advances.

(i)Upon (and only upon) receipt by the Administrative Agent for the account of the applicable Issuing Bank of immediately available funds from the Borrower (A) in reimbursement of any payment made by such Issuing Bank under the Letter of Credit with respect to which any Revolving Credit Lender has made a Participation Advance to the Administrative Agent, or (B) in payment of interest on such a payment made by such Issuing Bank under such a Letter of Credit, the Administrative Agent on behalf of such Issuing Bank will pay to each Revolving Credit Lender, in the same funds as those received by the Administrative Agent, the amount of such Revolving Credit Lender’s Pro Rata Share of such funds, except the Administrative Agent shall retain for the account of such Issuing Bank the amount of the Pro Rata Share of such funds of any Revolving Credit Lender that did not make a Participation Advance in respect of such payment by such Issuing Bank.

(ii)If the Administrative Agent is required at any time to return to any Loan Party, or to a trustee, receiver, liquidator, custodian, or any official in any insolvency proceeding, any portion of any payment made by any Loan Party to the Administrative Agent for the account of the applicable Issuing Bank pursuant to this Section 2.03 in reimbursement of a payment made under any Letter of Credit or interest or fees thereon, each Revolving Credit Lender shall, on demand of the Administrative Agent, forthwith return to the Administrative Agent for the account of such Issuing Bank the amount of its Pro Rata Share of any amounts so returned by the Administrative Agent plus interest thereon from the date such demand is made to the date such amounts are returned by such Revolving Credit Lender to the Administrative Agent, at a rate per annum equal to the Federal Funds Rate in effect from time to time.

​

​

​

​

(d)Documentation.  Each Loan Party agrees to be bound by the terms of the applicable Issuing Bank’s application and agreement for letters of credit and such Issuing Bank’s written regulations and customary practices relating to letters of credit, though such interpretation may be different from such Loan Party’s own.  In the event of a conflict between such application or agreement and this Agreement, this Agreement shall govern.  It is understood and agreed that, except in the case of gross negligence or willful misconduct, no Issuing Bank shall be liable for any error, negligence and/or mistakes, whether of omission or commission, in following any Loan Party’s instructions or those contained in the Letters of Credit or any modifications, amendments or supplements thereto.

(e)Determinations to Honor Drawing Requests.  In determining whether to honor any request for drawing under any Letter of Credit by the beneficiary thereof, the applicable Issuing Bank shall be responsible only to determine that the documents and certificates required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit.

(f)Nature of Participation and Reimbursement Obligations.  Each Revolving Credit Lender’s obligation in accordance with this Agreement to make the Revolving Credit Advances or Participation Advances, as contemplated by Section 2.03(b), as a result of a drawing under a Letter of Credit, and the Obligations of the Borrower to reimburse the applicable Issuing Bank upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Section 2.03 under all circumstances, including the following circumstances:

(i)any set-off, counterclaim, recoupment, defense or other right which such Revolving Credit Lender may have against such Issuing Bank or any of its Affiliates, the Borrower or any other Person for any reason whatsoever, or which any Loan Party may have against such Issuing Bank or any of its Affiliates, any Revolving Credit Lender or any other Person for any reason whatsoever;

(ii)the failure of any Loan Party or any other Person to comply, in connection with a Letter of Credit Advance, with the conditions specified in Sections 2.01, 2.02 or 3.02 or as otherwise specified in this Agreement for the making of a Revolving Credit Advances, it being acknowledged that such conditions are not required for the making of a Letter of Credit Advance and the obligation of the Revolving Credit Lenders to make Participation Advances under Section 2.03(b);

(iii)any lack of validity or enforceability of any Letter of Credit;

(iv)any claim of breach of warranty that might be made by any Loan Party or any Revolving Credit Lender against any beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, cross claim, defense or other right which any Loan Party or any Revolving Credit Lender may have at any time against a beneficiary, successor beneficiary any transferee or assignee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the applicable Issuing Bank or its Affiliates or any Revolving Credit Lender or any other Person, whether in connection with this Agreement, the transactions contemplated herein

​

​

​

​

or any unrelated transaction (including any underlying transaction between any Loan Party or Subsidiaries of a Loan Party and the beneficiary for which any Letter of Credit was procured);

(v)the lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Letter of Credit, or any fraud or alleged fraud in connection with any Letter of Credit, or the transport of any property or provision of services relating to a Letter of Credit, in each case even if the applicable Issuing Bank or any of its Affiliates has been notified thereof;

(vi)payment by the applicable Issuing Bank or any of its Affiliates under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit;

(vii)the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;

(viii)any failure by the applicable Issuing Bank or any of its Affiliates to issue any Letter of Credit in the form requested by any Loan Party, unless such Issuing Bank has received written notice from such Loan Party of such failure within three (3) Business Days after such Issuing Bank shall have furnished such Loan Party and the Administrative Agent a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;

(ix)any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Loan Party or Subsidiaries of a Loan Party;

(x)any breach of this Agreement or any other Loan Document by any party thereto;

(xi)the occurrence or continuance of an Bankruptcy Event with respect to any Loan Party;

(xii)the fact that an Event of Default or a Default shall have occurred and be continuing;

(xiii)the fact that the Termination Date shall have passed or this Agreement or the Commitments hereunder shall have been terminated; and

(xiv)any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.

​

​

​

​

(g)Liability for Acts and Omissions.  As between any Loan Party and any Issuing Bank, or such Issuing Bank’s Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the foregoing, no Issuing Bank shall be responsible for any of the following, including any losses or damages to any Loan Party or other Person or property relating therefrom:  (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuing Bank or its Affiliates has been notified thereof); (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any Loan Party and any beneficiary of any Letter of Credit or any such transferee; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of the such Issuing Bank or its Affiliates, as applicable, including any act or omission of any Governmental Authority, and none of the above shall affect or impair, or prevent the vesting of, any of the such Issuing Bank’s or its Affiliates rights or powers hereunder.  Nothing in the preceding sentence shall relieve any Issuing Bank from liability for such Issuing Bank’s gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction) in connection with actions or omissions described in such clauses (i) through (viii) of such sentence.  Notwithstanding the foregoing, in no event shall any Issuing Bank or its Affiliates be liable to any Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.

Without limiting the generality of the foregoing, each Issuing Bank and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by such Issuing Bank or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuing Bank or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or

​

​

​

​

negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuing Bank or its Affiliate in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each, an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to strictly comply with such Letter of Credit.

In furtherance and extension and not in limitation of the specific provisions specified above, any action taken or omitted by any Issuing Bank or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put such Issuing Bank or its Affiliates under any resulting liability to the Borrower or any Revolving Credit Lender.

Each Issuing Bank hereby agrees that if a payment is made on a Letter of Credit contrary to the terms of the Letter of Credit or in connection with fraud, lack of authority or for any other reason where payment should not have been made on such Letter of Credit, irrespective of whether or not the Issuing Bank would have liability to the Loan Parties for making such payment and irrespective of whether the Loan Parties may be equitably subrogated, the Loan Parties shall be contractually subrogated to all the rights and interests of the Issuing Bank against the Persons that received such payment and the beneficiary of the applicable Letter of Credit.  The Issuing Bank will reasonably cooperate with the Loan Parties, at the Loan Parties’ expense, in connection with such subrogation and any claims brought by the Loan Parties against such Persons and beneficiary.

(h)Issuing Bank Reporting Requirements.  Each Issuing Bank shall, on the first Business Day of each month, provide to Administrative Agent and Borrower a schedule of the Letters of Credit issued by it, in form and substance satisfactory to Administrative Agent, showing the date of issuance of each Letter of Credit, the account party, the original face amount (if any), and the expiration date of any Letter of Credit outstanding at any time during the preceding month, and any other information relating to such Letter of Credit that the Administrative Agent may request.

(i)Cancellation or Return of the Letter of Credit.  Any Letter of Credit may be cancelled and terminated according to its terms or upon written agreement of the Account Party and beneficiary, in which case, at such time as the Issuing Bank no longer has any liability thereunder, such Letter of Credit shall be deemed cancelled and terminated.

(j)Resignation of Issuing Bank.  An Issuing Bank may resign upon assignment of all (but not less than all) of its Revolving Credit Commitments and Revolving Credit Advances and assumption by one or more Issuing Banks of all (but not less than all) of its Letter of Credit Commitment.  After the resignation of an Issuing Bank hereunder, the retiring Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement and the other Loan Documents with respect to Letters of Credit issued by it prior to such resignation, but shall not be required to issue additional Letters of Credit or to extend, renew or increase any existing Letter of Credit.

​

​

​

​

SECTION 2.04Repayment of Advances.  (a)  Term Loan Advances.  On each Amortization Date, the Borrower shall pay to the Administrative Agent for the ratable account of the Term Lenders an aggregate principal amount of Term Loan Advances equal to 6.25% of the aggregate principal amount of the Term Loan Advances made on the Closing Date (each such payment on each such Amortization Date, an “Amortization Payment”), with the principal balance of all outstanding Term Loan Advances payable upon the Termination Date.  Any prepayments of principal of Term Loan Advances pursuant to Section 2.06(a) shall be allocated to reduce the Amortization Payments as directed by Borrower in the notice from the Borrower to the Administrative Agent accompanying such prepayment, and in the absence of any such direction, shall be allocated to reduce the Amortization Payments on a ratable basis among the remaining Amortization Payments.

(b)Revolving Credit Advances.   The Borrower shall repay to the Administrative Agent for the ratable account of the Revolving Credit Lenders on the Termination Date the aggregate principal amount of the Revolving Credit Advances 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.

SECTION 2.05Termination 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, $500,000) or an integral multiple of $1,000,000 (or in the case of the Swing Line Facility, $100,000) 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 2.06Prepayments.  (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 Term SOFR Rate Advances, in each case to the Administrative Agent stating the Type

​

​

​

​

of Advance to be prepaid, the Class 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 of Base Rate Advances and $5,000,000 or an integral multiple of $1,000,000 in excess thereof in the case of Term SOFR Rate Advances and (ii) if any prepayment of a Term SOFR 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 Reimbursement Obligations, (III) the Letter of Credit Advances and (IV) 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)The Borrower shall make prepayments of Advances under the Revolving Credit Facility at the times and in the amounts required by Section 5.05.

(iii)Prepayments of the Revolving Credit Facility made pursuant to clause (i) or clause (ii) 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)[Reserved.]

(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 Termination Date, 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 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 2.07Interest.

(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 Revolving Credit Advance or Term Loan Advance is a Base Rate Advance (as selected in at the Borrower’s option in the applicable Notice of Borrowing or Notice of Conversion), 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, payable in arrears quarterly on the first day of each fiscal quarter during such periods and on the date such Base Rate Advance shall be Converted or paid in full.

(ii)Term SOFR Rate Advances.  During such periods as such Revolving Credit Advance or Term Loan Advance is a Term SOFR Rate Advance (as selected in at the Borrower’s option in the applicable Notice of Borrowing or Notice of Conversion), a rate per annum equal at all times during each Interest Period for such Advance to the sum of (A) the Term SOFR Rate for such Interest Period for such Advance; plus (B) the SOFR Adjustment; plus (C) the Applicable Margin in respect of such Advance in effect prior to the first day of such Interest Period, 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 Term SOFR Rate Advance shall be Converted or paid in full.

(iii)Daily SOFR Advances.  For each Daily SOFR Advance, a rate per annum equal at all times to the sum of (A) Daily SOFR plus (B) the SOFR Adjustment plus (C) the Applicable Margin in respect of such Advance in effect from time to time, payable in arrears quarterly on the first day of each fiscal quarter during such period and on the date such Swing Line Advance shall be Converted or paid in full.

(b)Default Interest.  Upon the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, 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), (ii) or (iii) 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), (ii) or (iii) 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), (ii) or (iii) 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 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)Rate Unascertainable; Increased Costs; Illegality; Benchmark Replacement Setting.

(i)Unascertainable; Increased Costs. If at any time:

(A)the Administrative Agent shall have determined (which determination shall be conclusive and binding absent manifest error) that the Term SOFR Rate or Daily SOFR, as applicable cannot be determined pursuant to the definition thereof; or

(B)the Required Lenders determine that for any reason in connection with any request for a Term SOFR Rate Advance or a Daily SOFR Advance or conversion thereto or continuation thereof that the Term SOFR Rate does not adequately and fairly reflect the cost to such Lenders of funding, establishing or maintaining such Advance during the applicable Interest Period or Daily SOFR does not adequately and fairly reflect the cost to such Lenders of funding, establishing or maintaining such Advance, as applicable, and the Required Lenders provided notice of such determination to the Administrative Agent, then the Administrative Agent shall have the rights specified in Section 2.07(d)(iii)

(ii)Illegality.  If at any time any Lender shall have determined, or any Governmental Authority shall have asserted, that the making, maintenance or funding of any Term SOFR Rate Advance or Daily SOFR Advance, or the determination or charging of interest rates based on the Term SOFR Rate or Daily SOFR, has been made impracticable or unlawful by compliance by such Lender in good faith with any law or any interpretation or application thereof by any Governmental Authority or with any request or directive of any such Governmental Authority (whether or not having the force of law), then the Administrative Agent shall have the rights specified in Section 2.07(d)(iii).

(iii)Administrative Agent’s and Lender’s Rights.  In the case of any event specified in Section 2.07(d)(i) above, the Administrative Agent shall

​

​

​

​

promptly notify the Lenders and the Borrower thereof, and in the case of an event specified in Section 2.07(d)(ii) above, such Lender shall promptly so notify the Administrative Agent and endorse a certificate to such notice as to the specific circumstances of such notice, and the Administrative Agent shall promptly send copies of such notice and certificate to the other Lenders and the Borrower.  Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the obligation of (i) the Lenders, in the case of such notice given by the Administrative Agent, or (ii) such Lender, in the case of such notice given by such Lender, to allow the Borrower to select, convert to or renew a Term SOFR Rate Advance or Daily SOFR Advance, as applicable, shall be suspended (to the extent of the affected Term SOFR Rate Advances or Interest Periods or Daily SOFR Advance) until the Administrative Agent shall have later notified the Borrower, or such Lender shall have later notified the Administrative Agent, of the Administrative Agent’s or such Lender’s, as the case may be, determination that the circumstances giving rise to such previous determination no longer exist.  If at any time the Administrative Agent makes a determination under Section 2.07(d)(i) and the Borrower has previously notified the Administrative Agent of its selection of, conversion to or renewal of a Term SOFR Rate Option and the Term SOFR Rate Option has not yet gone into effect, such notification shall be deemed to provide for selection of, conversion to or renewal of a Base Rate Advance.  If any Lender notifies the Administrative Agent of a determination under Section 2.07(d)(ii), the Borrower shall, subject to the Borrower’s indemnification Obligations under Section 2.07(d)(ii), as to any Advance of the Lender to which a Term SOFR Rate Option applies, on the date specified in such notice either convert such Advance to a Base Rate Advance otherwise available with respect to such Advance or prepay such Advance in accordance with Section 2.06(a).  Absent due notice from the Borrower of conversion or prepayment, such Advance shall automatically be converted to a Base Rate Advance upon such specified date.

(iv)Benchmark Replacement Setting.

(A)Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document (and any Secured Hedge Agreement shall be deemed not to be a “Loan Document” for purposes of this Section titled “Benchmark Replacement Setting”), if a Benchmark Transition Event and its related Benchmark Replacement Date have  occurred prior to any setting of the then-current Benchmark, then (A) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (B) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes

​

​

​

​

hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.

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

(C)Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (A) the implementation of any Benchmark Replacement, and (B) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement.  The Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to paragraph (D) below and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of 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 or any selection, 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 to this Agreement or any other Loan Document except, in each case, as expressly required pursuant to this Section 2.07(d).

(D)Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate or based on a term rate and either (I) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (II) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any

​

​

​

​

similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor; and (B) if a tenor that was removed pursuant to clause (A) above either (I) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (II) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may  modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.

(E)Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Term SOFR Rate or Daily SOFR, the Borrower may revoke any pending request for an Advance bearing interest based on such rate or conversion to or continuation of Advances bearing interest based on such rate to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Base Rate Advance or conversion to a Base Rate Advance. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.

(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 Term SOFR Rate Advance shall be ineffective, and (B) if any Notice of Borrowing requests a Term SOFR Rate Advance, such Borrowing shall be made as a Base Rate Advance.

SECTION 2.08Fees.  (a) Commitment Fee.  The Borrower shall pay to the Administrative Agent for the account of the Revolving Credit Lenders a commitment fee, from the Closing Date until the Termination Date, payable in arrears quarterly on the first Business 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.  The Borrower shall pay (i) to the Administrative Agent for the ratable account of the Lenders a fee (the “Letter of Credit Fee”) equal to the Applicable Margin then in effect for Letters of Credit times the daily amount available to be drawn under each Letter of Credit and (ii) to the applicable Issuing Bank for its own account a fronting fee equal to 0.15% per annum on the daily amount available to be drawn under each Letter of Credit.  All Letter of Credit Fees and fronting fees shall be payable quarterly in arrears on the first Business Day of each calendar quarter.  The Borrower shall also pay to the applicable

​

​

​

​

Issuing Bank for such Issuing Bank’s sole account the Issuing Bank’s then-in-effect customary fees and administrative expenses payable with respect to the Letters of Credit as such Issuing Bank may generally charge or incur from time to time in connection with the issuance, maintenance, amendment (if any), assignment or transfer (if any), negotiation, and administration of Letters of Credit.  Upon the occurrence and during the continuance of a Default under Section 6.01(a) or 6.01(f) or, upon the request of the Required Lenders following and during the continuance of any other Event of Default, the amount of commission payable by the Borrower under clause (b)(i) shall be increased by 2% per annum.

(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.

SECTION 2.09Conversion of Advances.  (a) Optional.  The Borrower may on any Business Day, upon notice (a “Notice of Conversion”) 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 Term SOFR 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 Term SOFR 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 Term SOFR Rate Advances into Base Rate Advances or continuation of Term SOFR Rate Advances shall be made only on the last day of an Interest Period for such Term SOFR Rate Advances, any Conversion of Base Rate Advances into Term SOFR 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 into Term SOFR 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)If the Borrower shall provide a notice of Conversion or continuation and fail to select the duration of any Interest Period for any Term SOFR 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 Term SOFR Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into or continue as a Term SOFR 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 Term

​

​

​

​

SOFR Rate Advance, such Term SOFR Rate Advance will automatically Convert into a Base Rate Advance.

(ii)Upon the occurrence and during the continuance of any Event of Default, (A) each Term SOFR 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 Term SOFR Rate Advances as, Term SOFR Rate Advances shall be suspended during such continuance.

SECTION 2.10Increased Costs, Etc.  (a) If, due to either (i) the introduction,  adoption or taking effect of or any change in or in the interpretation, administration, implementation or application of any Law after the date hereof or (ii) the compliance with any guideline, rule, directive or request from any central bank or other Governmental Authority (whether or not having the force of Law) enacted, promulgated, issued or made after the date hereof, there shall be any increase in the cost to any Lender of agreeing to make or of making, funding or maintaining Term SOFR 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 and (B) Excluded Taxes), 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 or Issuing Bank 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 or liquidity required or expected to be maintained by such Lender or Issuing Bank or any corporation controlling such Lender or Issuing Bank and that the amount of such capital is increased by or based upon the existence of such Lender’s or Issuing Bank’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 in any Letters of Credit (or similar contingent obligations), then, upon demand by such Lender or Issuing Bank 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 or Issuing Bank, from time to time as specified by such Lender or Issuing Bank, additional amounts sufficient to compensate such Lender or Issuing Bank for such newly enacted, promulgated or issued law, regulation or guideline in the light of such circumstances, to the extent that such Lender or Issuing Bank reasonably determines such increase in capital to be allocable to the existence of such Lender’s or Issuing Bank’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 or Issuing Bank shall be conclusive and binding for all purposes, absent manifest error.

(c)If, with respect to any Term SOFR Rate Advances under any Facility, the Required Lenders in respect of such Facility notify the Administrative Agent that the Term SOFR

​

​

​

​

Rate for any Interest Period for such Advances will not adequately reflect the cost to Lenders of making, funding or maintaining their Term SOFR Rate Advances for such Interest Period, the Administrative Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i) each such Term SOFR Rate Advance 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 Lenders to make, or to Convert Advances into, Term SOFR Rate Advances shall be suspended until the Administrative Agent shall notify the Borrower that the Required Lenders have determined that the circumstances causing such suspension no longer exist.

(d)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 (whether or not having the force of Law) 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 in the case of this clause (ii), be deemed to be a change in Law (whether or not having the force of Law) after the Closing Date regardless of the date enacted, adopted, promulgated, implemented or issued.

SECTION 2.11Payments 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 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 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 Section 2.02(b), 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)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 Term SOFR 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.

(c)Except as otherwise expressly set forth herein, 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 Term SOFR Rate Advances to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

(d)(A) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Advances that such Lender will not make available to the Administrative Agent such Lender’s Pro Rata Share, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.01(a) or Section 2.01(b) and Section 2.02(a) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing of Advances available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to Advances under the Base Rate Option.  If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Advance included in such Borrowing.  Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. (B) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or an Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or such Issuing Bank, as the case may be, the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders or such Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

​

​

​

​

(e)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 2.12Taxes.  (a)  Any and all payments by any Loan Party 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 any applicable withholding agent 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 or for the account of any Lender or the Administrative Agent, (A) the applicable withholding agent shall make all such deductions, (B) the applicable withholding agent 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 applicable Loan Party shall be increased as may be necessary so that after all required deductions have been made (including deductions applicable to additional sums payable under this Section 2.12) such Lender (or, in the case of a payment received by the Administrative Agent for its own account, the Administrative Agent) receives an amount equal to the sum it would have received had no such deductions been made for Taxes.