EXHIBIT 3.5
AMENDMENT NO. 1 TO
AMENDED AND RESTATED OPERATING AGREEMENT
OF
ALLIANCE RESOURCE MANAGEMENT GP, LLC
This Amendment No. 1 to the Amended and Restated Operating Agreement
(the "Agreement") of ALLIANCE RESOURCE MANAGEMENT GP, LLC, a Delaware limited
liability company (the "Company") by and among Alliance Management Holdings,
LLC, a Delaware limited liability ("AMH"), Beacon-Alliance Limited Member LLC, a
Delaware limited liability company ("BALM"), Beacon-Alliance Managing Member,
LLC, a Delaware limited liability company ("BAMM") and Xxxxxx X. Xxxxxxx (the
"Organizational Member"), dated as of August 20, 1999, is entered into and
executed by AMH, BALM and BAMM (collectively, the "Members"), as of November 30,
1999.
RECITALS
WHEREAS, the Board of Directors of the Company has authorized and
approved a unit repurchase program (the "Unit Repurchase Program") pursuant to
which the Company may purchase up to 1,000,000 common units representing limited
partner interests ("Common Units") of Alliance Resource Partners, L.P., a
Delaware limited partnership of which the Company serves as the managing general
partner (the "Partnership"), in compliance with Rule 10b-18 under the Securities
Exchange Act of 1934, as amended; and the Company has issued a press release
announcing the repurchase program;
WHEREAS, Alliance Resource Holdings, Inc., an affiliate of the Company,
will loan to the Company the funds to effect such repurchase program; and
WHEREAS, the Members wish to amend the Agreement to provide that (i)
any profits and losses and (ii) any distributions attributable to the Common
Units purchased by the Company pursuant such repurchase program shall be
allocated among the members on a percentage basis different from the percentages
contained in the Agreement; provided, however, the allocation percentages shall
remain unchanged with respect to the allocation of all other profits and losses
and distributions of the Company.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements contained herein, the Members hereby determine as follows:
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1. Section 11 of the Agreement is hereby amended and restated to read
in its entirety as follows:
11. ALLOCATION OF PROFITS AND LOSSES.
The Company's profits and losses shall be allocated (i)
twenty-five and nine-tenths percent (25.9%) to AMH, (ii) seventy-four
and nine one-hundredths percent (74.09%) to BALM and (iii) one
one-hundredth of a percent (0.01%) to BAMM; provided, however, that any
and all profits and losses attributable to Common Units which were
purchased pursuant to the the Unit Repurchase Program shall instead be
allocated among the Members as follows: (i) thirteen and no
one-hundredths percent (13.00%) to AMH, (ii) eighty-six and ninety-nine
one-hundredths percent (86.99%) to BALM and (iii) one one-hundredth of
a percent (0.01%) to BAMM; provided, further, profits and losses
attributable to the Common Units purchased by the Company pursuant to
the Unit Repurchase Program shall include, without limitation, (x) the
interest expense associated with any borrowings by the Company to fund
the purchase of Common Units pursuant to the Unit Repurchase Program
and (y) liabilities associated with any default by the Company or
inability of the Company to make payments with respect to such
borrowings.
2. Section 12 of the Agreement is hereby amended and restated to read
in its entirety as follows:
12. DISTRIBUTIONS.
Distributions shall be made at the times and in the aggregate
amounts as determined by the Board of Directors and shall be allocated
and distributed (i) twenty-five and nine- tenths percent (25.9%) to
AMH, (ii) seventy-four percent and nine one-hundredths (74.09%) to BALM
and (iii) one one-hundredth of a percent (0.01%) to BAMM; provided,
however, that any and all distributions attributable to Common Units
which were purchased by the Company pursuant to the Unit Repurchase
Program shall instead be allocated and distributed among the Members as
follows: (i) thirteen and no one-hundredths percent (13.00%) to AMH,
(ii) eighty-six and ninety-nine one-hundredths percent (86.99%) to BALM
and (iii) one one-hundredth of a percent (0.01%) to BAMM.
3. A new Section 12A shall be inserted into the Agreement between
Sections 12 and 13, respectively, and which shall read in its entirety as
follows:
12A. LIQUIDATION.
Upon liquidation of the Company, and after satisfaction of
Company liabilities (or the establishment of reasonable reserves therefore as
determined by the Board of Directors), the Board of Directors shall distribute
to the Members the respective balances of their Capital Accounts in proportion
to and to the extent of their positive balances.
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4. Other than as set forth in paragraphs 1, 2 and 3 above, all of the
other terms and provisions of the Agreement shall remain in full force and
effect.
5. Capitalized terms under but not defined herein shall have the
meanings assigned to such terms in the Agreement.
6. This Amendment No. 1 to the Agreement shall be governed by, and
construed under, the internal laws of the State of Delaware, without regard to
principles of conflicts of laws, with all rights and remedies being governed by
said laws.
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IN WITNESS WHEREOF, the AMH, BALM and BAMM have executed this Agreement
effective as of the date first written above.
MEMBERS:
ALLIANCE MANAGEMENT HOLDINGS, LLC
By: Xxxxxx X. Xxxxxxx and Xxxxxx Xxxxx, III, as joint
tenants with right of survivorship
its sole Member
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxx, III
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Xxxxxx X. Xxxxx, III
BEACON-ALLIANCE LIMITED MEMBER, LLC
By: MPC Partners, LP
Member
By: Energy Sub Fund, Inc.
its general partner
By: /s/ Xxxx X. XxxXxxxxxxx
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Xxxx X. XxxXxxxxxxx
Title:
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By: The Beacon Group Investors II, LLC
Member
By: The Beacon Group, LLC
its sole member
By: /s/ Xxxx X. XxxXxxxxxxx
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Xxxx X. XxxXxxxxxxx
Title:
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BEACON-ALLIANCE MANAGING MEMBER, LLC
By: The Beacon Group Investors II, LLC
its sole Member
By: /s/ Xxxx X. XxxXxxxxxxx
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Xxxx X. XxxXxxxxxxx
Title:
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