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EXHIBIT 1.1
ALLIANCE RESOURCE PARTNERS, L.P.
[9,123,311] COMMON UNITS
REPRESENTING LIMITED PARTNER INTERESTS
UNDERWRITING AGREEMENT
__________________, 1999
XXXXXXX XXXXX XXXXXX INC.
XXXXXX XXXXXXX & CO. INCORPORATED
X. X. XXXXXXX & SONS, INC.
XXXXXX BROTHERS INC.
c/o XXXXXXX XXXXX BARNEY INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Alliance Resource Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes to issue and sell (the "Offering") an aggregate of
[9,123,311] common units (the "Firm Units") representing limited partner
interests in the Partnership (the "Common Units") to the several underwriters
named in Schedule I hereto (the "Underwriters"), upon the terms and conditions
set forth in Section 2 hereof. The Partnership also proposes to sell to the
Underwriters, upon the terms and conditions set forth in Section 2 hereof, up to
an additional [1,368,497] Common Units (the "Additional Units"). The Firm Units
and the Additional Units are hereinafter collectively referred to as the
"Units."
It is understood and agreed to by all parties that the Partnership was
formed to acquire, own and operate the business and assets of Alliance Coal
Corporation, a Delaware corporation ("Alliance"), other than Alliance Power LLC
and South Atlantic Coal LLC. Alliance Resource GP, LLC, a Delaware limited
liability company, will serve as the general partner (the "General Partner") of
each of the Partnership and Alliance Operating Partners, L.P., a Delaware
limited partnership (the "Intermediate Partnership"), and as managing member of
each of MAPCO Coal, LLC, a Delaware limited liability company ("MAPCO Coal
LLC"), and MC Mining, LLC, a Delaware limited liability company ("MC Mining
LLC") (MAPCO Coal LLC and MC Mining LLC are collectively referred to herein as
the "Operating Companies").
Prior to the date hereof, the following transactions occurred:
(a) Scotts Branch Company, a Delaware corporation, and MC Mining,
Inc., a Delaware corporation, merged with and into MC Mining LLC;
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(b) Xxxxx County Coal Corporation, a Delaware corporation, and Xxxxxx
County Coal Corporation, a Delaware corporation, merged with and into Xxxxxx
County Coal LLC, a Delaware limited liability company;
(c) Toptiki Coal Corporation, a Delaware corporation, and Pontiki Coal
Corporation, a Delaware corporation, merged with and into Pontiki Coal LLC, a
Delaware limited liability company;
(d) Mapco Coal Land Corporation, a Delaware corporation, and Mapco Coal
Land & Development Corporation, a Delaware corporation, merged with and into
Mapco Land & Development LLC, a Delaware limited liability company;
(e) Mapco Coal International, Inc., a __________ corporation, and Mapco
Coal Inc., a Delaware corporation, merged with and into Mapco Coal LLC;
(f) Backbone Mountain Inc, a _______ corporation, merged with and into
Backbone Mountain LLC, a Delaware limited liability company;
(g) White County Coal Corporation, a Delaware corporation, merged with
and into White County Coal LLC, a Delaware limited liability company;
(h) Mount Xxxxxx Coal Transfer Company, a Delaware corporation, merged
with and into Mt. Xxxxxx Transfer Terminal LLC, a Delaware limited liability
company;
(i) Xxxxxxx County Coal Corporation, a Kentucky corporation, merged
with and into Xxxxxxx County Coal LLC, a Delaware limited liability company;
(j) Mettiki Coal Corporation, a Delaware corporation, merged with and
into Mettiki Coal LLC, a Delaware limited liability company;
(k) Mettiki Coal Corporation (West Virginia), a Delaware corporation,
merged with and into Mettiki Coal (West Virginia) LLC, a Delaware limited
liability company; and
(l) MLDC Corporation, a Delaware corporation, merged with and into MLDC
LLC, a Delaware limited liability company.
The mergers described in clauses (a)-(l) above are referred to herein as the
"Mergers." Each of Xxxxxxx County Coal LLC, Excel Mining LLC, Xxxxxx County Coal
LLC, Pontiki Coal LLC, MAPCO Land & Development LLC, Backbone Mountain LLC,
White County Coal LLC, Mt. Xxxxxx Transfer Terminal LLC, Xxxxxxx County Coal
LLC, Mettiki Coal LLC, Mettiki Coal (West Virginia) LLC and MLDC LLC is referred
to herein, individually, as a "Subsidiary" and, collectively, as the
"Subsidiaries". The Partnership, the General Partner, the Intermediate
Partnership, the Operating Companies and the Subsidiaries are collectively
referred to herein as the "Alliance Entities."
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As of the date hereof, the General Partner will enter into (a) a bank
credit agreement (the "Bank Credit Agreement") providing for a $50 million term
loan facility, a $25 million working capital facility for working capital
purposes and distributions to partners and a $25 million revolving credit
facility for acquisitions and capital improvements and (b) a note purchase
agreement (the "Note Purchase Agreement") with certain institutional investors
providing for the issuance by the General Partner of $200 million of _% senior
notes due 2014 (the "Notes").
On the Closing Date (as defined in Section 4), the Partnership, the
General Partner, the Intermediate Partnership, the Operating Companies, the
Subsidiaries and Alliance will enter into a Contribution, Conveyance and
Assumption Agreement (the "Contribution and Conveyance Agreement") pursuant to
which the following transactions will occur on the Closing Date:
(a) the Subsidiaries will distribute certain working capital assets to
Mapco Coal LLC;
(b) Mapco Coal LLC and MC Mining LLC will distribute certain working
capital assets to the General Partner;
(c) the General Partner will (i) issue the Notes and (ii) borrow
approximately [$45.7] million under the term loan facility of the Bank Credit
Agreement (the "Term Loan");
(d) the General Partner will contribute 99.999% of its member interest
in each of the Operating Companies to the Intermediate Partnership in exchange
for (i) a 1.0101% general partner interest in the Intermediate Partnership, (ii)
a limited partner interest in the Intermediate Partnership and (iii) and the
assumption by the Intermediate Partnership of the General Partner's obligations
under the Notes and the Bank Credit Agreement;
(e) the General Partner will contribute its limited partner interest in
the Intermediate Partnership to the Partnership in exchange for (i) a 1% general
partner interest in the Partnership, (ii) [6,523,168] subordinated limited
partner interests of the Partnership (the "Subordinated Units") and (iii) the
Incentive Distribution Rights (as defined in the Agreement of Limited
Partnership of the Partnership (as the same may be amended or restated at or
prior to the Closing Date, the "Partnership Agreement") between the General
Partner and Xxxxxx X. Xxxxxxx, as the organizational limited partner (the
"Organizational Limited Partner"));
(f) the public offering of the Firm Units contemplated hereby will be
consummated;
(g) the Partnership will contribute the net proceeds received from the
sale of the Units to the Intermediate Partnership;
(h) the Intermediate Partnership will use the cash received upon sale
of the Units and the Notes and the borrowing under the Term Loan to (i) pay the
expenses of the offering of the Units and related transactions, (ii) purchase
[$45.7 million] of U.S. Treasury Notes, which will be assigned as collateral to
the lenders under the Term Loan, (iii) contribute $__ million in cash to the
Operating
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Companies to replenish working capital and (iv) distribute $__ million in cash
to the General Partner; and
(i) the General Partner will distribute $___ million in cash to
Alliance.
The transactions described above in clauses (a) through (i),
collectively with the Mergers, are referred to as the "Transactions." In
connection with the consummation of the Transactions, the Partnership, the
Intermediate Partnership, the Operating Companies, the Subsidiaries, the General
Partner and Alliance have entered into or will enter into (a) merger agreements
and certificates of merger in connection with the Mergers (the "Merger
Documents") and (b) various bills of sale, conveyances, deeds and other
assignments (collectively with the Contribution and Conveyance Agreement, the
"Conveyance Documents"). The Merger Documents and the Conveyance Documents are
collectively referred to herein as the "Merger and Conveyance Documents."
The Partnership, the General Partner, the Intermediate Partnership, the
Operating Companies and Alliance (the "Alliance Parties") wish to confirm as
follows their agreement with you in connection with the several purchases of the
Units by the Underwriters.
1. Registration Statement and Prospectus. The Partnership has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 under the Act (Commission File No.
333-78845) (the "registration statement"), including a prospectus subject to
completion relating to the Units. The term "Registration Statement" as used in
this Agreement means the registration statement (including all financial
schedules and exhibits), as amended at the time it becomes effective, or, if the
registration statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this Agreement.
If it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the registration statement will be filed and must be
declared effective before the offering of the Units may commence, the term
"Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. If it is contemplated, at
the time this Agreement is executed, that a registration statement or a
post-effective amendment will be filed pursuant to Rule 462(b) or Rule 462(d)
under the Act before the offering of the Units may commence, the term
"Registration Statement" as used in this Agreement includes such registration
statement. The term "Prospectus" as used in this Agreement means the prospectus
in the form included in the Registration Statement, or, if the prospectus
included in the Registration Statement omits information in reliance on Rule
430A under the Act and such information is included in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, the term "Prospectus" as
used in this Agreement means the prospectus in the form included in the
Registration Statement as supplemented by the addition of the Rule 430A
information contained in the prospectus filed with the Commission pursuant to
Rule 424(b). The term "Prepricing Prospectus" as used in this Agreement means
the preliminary prospectus dated __________, 1999, relating to the Common Units
as such preliminary prospectus shall have been amended from time to time prior
to the date of the Prospectus.
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2. Agreements to Sell and Purchase. The Partnership hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell to
each Underwriter and, upon the basis of the representations, warranties and
agreements of the Alliance Parties herein contained and subject to all the terms
and conditions set forth herein, each Underwriter agrees, severally and not
jointly, to purchase from the Partnership, at a purchase price of $_____ per
Unit (the "purchase price per Unit"), the number of Firm Units set forth
opposite the name of such Underwriter in Schedule I hereto (or such number of
Firm Units increased as set forth in Section 10 hereof).
The Partnership also agrees, subject to all the terms and conditions
set forth herein, to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the Alliance Parties herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Partnership, at the
purchase price per Unit, pursuant to an option (the "over-allotment option")
which may be exercised at any time and from time to time prior to 7:00 p.m., New
York City time, on the 30th day after the date of the Prospectus (or, if such
30th day shall be a Saturday or Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange is open for trading), up to an
aggregate of [1,368,497] Additional Units. Such option is granted solely for the
purpose of covering over-allotments in the sale of Firm Units. Upon an exercise
of the over-allotment option, each Underwriter, severally and not jointly,
agrees to purchase from the Partnership the number of Additional Units (subject
to such adjustments as you may determine in order to avoid fractional Units)
which bears the same proportion to the number of Additional Units to be
purchased by the Underwriters as the number of Firm Units set forth opposite the
name of such Underwriter in Schedule I hereto (or such number of Firm Units
increased as set forth in Section 10 hereof) bears to the aggregate number of
Firm Units.
3. Terms of Public Offering. The Partnership has been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Units as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Units upon the terms set forth in the Prospectus.
4. Delivery of the Units and Payment Therefor. Delivery to the
Underwriters of and payment for the Firm Units shall be made at 10:00 a.m., New
York City time, on ___________, 1999 (the "Closing Date"). The place of closing
and payment for the Firm Units and the Closing Date may be varied by agreement
between you and the Partnership.
Delivery to the Underwriters of and payment for any Additional Units to
be purchased by the Underwriters shall be made at such time on such date (the
"Option Closing Date"), which may be the same as the Closing Date but shall in
no event be earlier than the Closing Date nor earlier than two nor later than
ten business days after the giving of the notice hereinafter referred to, as
shall be specified in a written notice from you on behalf of the Underwriters to
the Partnership of the Underwriters' determination to purchase a number,
specified in such notice, of Additional Units. The place of closing and payment
for any Additional Units and the Option Closing Date for such Units may be
varied by agreement between you and the Partnership.
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Delivery of the Firm Units and the Additional Units shall be made to
the Underwriters for the respective accounts of the Underwriters against payment
by the Underwriters of the purchase price thereof to or upon the order of the
Partnership by wire transfer payable in same-day funds to an account specified
by the Partnership. Delivery of the Firm Units and the Additional Units shall be
made through the facilities of The Depository Trust Company unless the
Underwriters shall otherwise instruct.
5. Agreements of the Alliance Parties. Each of the Alliance Parties,
jointly and severally, agrees with the Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Units may commence, the
Partnership and the General Partner will endeavor to cause the Registration
Statement or such post-effective amendment to become effective as soon as
possible and will advise you promptly and, if requested by you, will confirm
such advice in writing when the Registration Statement or such post-effective
amendment has become effective.
(b) The Partnership will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the Commission
for amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Units for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Alliance Entities, taken
as a whole, or of the happening of any event which makes any statement of a
material fact made in the Registration Statement or the Prospectus (as then
amended or supplemented) untrue or which requires the making of any additions to
or changes in the Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act or the
regulations thereunder to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectus (as then amended or supplemented) to comply with the Act or any
other applicable law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Partnership and
the General Partner will make every commercially reasonable effort to obtain the
withdrawal of such order at the earliest possible time.
(c) The Partnership will furnish to you, without charge, (i) two
XXXXX versions of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the registration statement, (ii) two manually signed copies of the
registration statement corresponding to the XXXXX version filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the registration statement, and (iii) such number of conformed
copies of the registration statement as originally filed and of each amendment
thereto, but without exhibits, as you or your counsel may reasonably request.
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(d) The Partnership will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus of
which you shall not previously have been advised or to which you or your counsel
shall reasonably object in writing after being so advised unless the Partnership
shall have determined based on the advice of counsel that such amendment or
supplement is required by law or (ii) so long as, in the opinion of counsel for
the Underwriters, a Prospectus is required to be delivered in connection with
sales by any Underwriter or dealer, file any information, documents or reports
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), without delivering a copy of such information, documents or reports to
you, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Partnership has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of the Prepricing Prospectus. The
Partnership consents to the use, in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in which the Units
are offered by the Underwriters and by dealers, prior to the date of the
Prospectus, of each Prepricing Prospectus so furnished by the Partnership.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by the Act to be delivered
in connection with sales by any Underwriter or dealer, the Partnership will
expeditiously deliver to each Underwriter and each dealer that you may specify,
without charge, as many copies of the Prospectus (and of any amendment or
supplement thereto) as you may reasonably request. At any time after nine months
after the time of issuance of the Prospectus, upon request, but at your expense,
the Partnership will deliver as many copies of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act as you may reasonably
request, provided that a prospectus is required by the Act to be delivered in
connection with sales of Units by any Underwriter or dealer. The Partnership
consents to the use of the Prospectus (and of any amendment or supplement
thereto) in accordance with the provisions of the Act and with the securities or
Blue Sky laws of the jurisdictions in which the Units are offered by the
Underwriters and by all dealers to whom Units may be sold, both in connection
with the offering and sale of the Units and for such period of time thereafter
as the Prospectus is required by the Act to be delivered in connection with
sales by any Underwriter or dealer. If during such period of time any event
shall occur that in the judgment of the Partnership or in the opinion of counsel
for the Underwriters and the Partnership is required to be set forth in the
Prospectus (as then amended or supplemented) or should be set forth therein in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary to supplement or
amend the Prospectus to comply with the Act or any other law, the Partnership
will forthwith prepare and, subject to the provisions of paragraph (d) above,
file with the Commission an appropriate supplement or amendment thereto, and
will expeditiously furnish to the Underwriters and dealers a reasonable number
of copies thereof; provided that, if any such event necessitating a supplement
or amendment to the Prospectus occurs at any time after nine months after the
time of issuance of the Prospectus, such supplement or amendment shall be
prepared at your expense. In the event that the Partnership and you agree that
the Prospectus should be amended or supplemented, the Partnership, if requested
by you, will promptly issue a press release announcing or disclosing the
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matters to be covered by the proposed amendment or supplement unless the
Partnership shall have determined, based on the advice of counsel, that the
issuance of such press release would not be required by law.
(g) The Partnership and the General Partner will cooperate with you
and with counsel for the Underwriters in connection with the registration or
qualification of the Units for offering and sale by the Underwriters and by
dealers under the securities or Blue Sky laws of such jurisdictions as you may
reasonably designate and will file such consents to service of process or other
documents reasonably necessary or appropriate in order to effect such
registration or qualification; provided that in no event shall any Alliance
Entity be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would subject it to service of
process in suits, other than those arising out of the offering or sale of the
Units, in any jurisdiction where it is not now so subject.
(h) The Partnership will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(i) During the period of two years hereafter, the Partnership will
furnish to you (i) as soon as publicly available, a copy of each report of the
Partnership mailed to unitholders or filed with the Commission or the principal
national securities exchange or automated quotation system upon which the Units
may be listed, and (ii) from time to time such other information concerning the
Partnership as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating this
Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of any of the Alliance Parties to comply with the terms or fulfill any of
the conditions of this Agreement, the Alliance Parties, jointly and severally,
agree to reimburse the Underwriters for all reasonable out-of-pocket expenses
(including reasonable fees and expenses of counsel for the Underwriters)
incurred by you in connection herewith.
(k) The Partnership will apply the net proceeds from the sale of the
Units and the net proceeds from the sale of the Notes and any amount borrowed
under the Bank Credit Agreement at the Closing in accordance with the
description set forth under the caption "Use of Proceeds" in the Prospectus.
(l) If Rule 430A of the Act is employed, the Partnership will timely
file the Prospectus pursuant to Rule 424(b) under the Act and will advise you of
the time and manner of such filing.
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(m) Except as provided in this Agreement, the Alliance Parties will
not, for a period of 180 days after the date of the Prospectus without the prior
written consent of Xxxxxxx Xxxxx Barney Inc., (i) dispose of or hedge any Common
Units or Subordinated Units, any securities convertible into or exchangeable
for, or that represent a right to receive, Common Units or Subordinated Units or
any securities that are senior to or on a parity with Common Units, or (ii)
grant any options or warrants to purchase Common Units or Subordinated Units,
other than the grant of Unit Options or Restricted Units pursuant to the
Alliance Resource GP, LLC 1999 Long- Term Incentive Plan and other than the
redemption of Subordinated Units upon the exercise of the underwriters'
over-allotment option.
(n) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Alliance Entities have not taken, and will not
take, directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of the
Common Units to facilitate the sale or resale of the Units.
(o) Each of the Alliance Entities will take such steps as shall be
necessary to ensure that none of them shall become an "investment company"
within the meaning of such term under the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder.
(p) The Partnership shall timely complete all required filings and
otherwise fully comply in a timely manner with all provisions of the Exchange
Act, including the rules and regulations thereunder, in connection with the
registration of the Units thereunder.
(q) Each of the Alliance Entities and Alliance will cause to be
accomplished or obtained as soon as practicable all consents, recordings and
filings necessary to perfect, preserve and protect the title of the Operating
Companies and the Subsidiaries to the properties and assets owned by each of
them as a result of the Transactions.
6. Representations and Warranties of the Alliance Entities. The
Alliance Entities, jointly and severally, represent and warrant to each
Underwriter that:
(a) Any Prepricing Prospectus, at the date of filing thereof with
the Commission, complied in all material respects with the requirements of the
Act and did not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The Commission has not issued any order preventing or
suspending the use of any Prepricing Prospectus. The Registration Statement in
the form in which it became or becomes effective and also in such form as it may
be when any post-effective amendment thereto shall become effective and the
Prospectus and any supplement or amendment thereto when filed with the
Commission under Rule 424(b) under the Act complied or will comply in all
material respects with the provisions of the Act and did not or will not at any
such times contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. Each of the statements made by the Partnership in such
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documents within the coverage of Rule 175(b) of the rules and regulations under
the Act, including (but not limited to) any statements with respect to future
available cash or future cash distributions of the Partnership or the
anticipated ratio of taxable income to distributions was made or will be made
with a reasonable basis and in good faith. Notwithstanding the foregoing, no
representation or warranty is made as to statements in or omissions from the
Registration Statement, the Prospectus or any Prepricing Prospectus made in
reliance upon and in conformity with information furnished to the Partnership in
writing by or on behalf of any Underwriter through you expressly for use
therein.
(b) Each of the Partnership and the Intermediate Partnership has
been duly formed and is validly existing in good standing as a limited
partnership under the Delaware Revised Uniform Limited Partnership Act (the
"Delaware LP Act") with full partnership power and authority to own or lease its
properties to be owned or leased at the Closing Date, to assume the liabilities
being assumed by it pursuant to the Merger and Conveyance Documents and to
conduct its business to be conducted at the Closing Date, in each case in all
material respects as described in the Registration Statement and the Prospectus.
Each of the Partnership and the Intermediate Partnership is, or at the Closing
Date will be, duly registered or qualified as a foreign limited partnership for
the transaction of business under the laws of each jurisdiction in which the
character of the business conducted by it or the nature or location of the
properties owned or leased by it makes such registration or qualification
necessary, except where the failure so to register or qualify would not (i) have
a material adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Alliance
Entities, taken as a whole, or (ii) subject the limited partners of the
Partnership to any material liability or disability.
(c) Each Operating Company and Subsidiary has been duly formed and
is validly existing in good standing as a limited liability company under the
Delaware Limited Liability Company Act (the "Delaware LLC Act") with full
limited liability company power and authority to own or lease its properties to
be owned or leased at the Closing Date, to assume the liabilities being assumed
by it pursuant to the Merger and Conveyance Documents and to conduct its
business to be conducted at the Closing Date, in each case in all material
respects as described in the Registration Statement and the Prospectus. Each
Operating Company and Subsidiary is duly registered or qualified as a foreign
limited liability company for the transaction of business under the laws of each
jurisdiction in which the character of the business conducted by it or the
nature or location of the properties owned or leased by it makes such
registration or qualification necessary, except where the failure so to register
or qualify would not (i) have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the Alliance Entities, taken as a whole, or (ii) subject the
limited partners of the Partnership to any material liability or disability.
(d) The General Partner has been duly formed and is validly existing
in good standing as a limited liability company under the Delaware LLC Act with
full limited liability company power and authority to own or lease its
properties to be owned or leased at the Closing Date, to conduct its business to
be conducted at the Closing Date and to act as general partner of the
Partnership and the Intermediate Partnership and the managing member of the
Operating Companies,
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in each case in all material respects as described in the Registration Statement
and the Prospectus. The General Partner is duly registered or qualified as a
foreign limited liability company for the transaction of business under the laws
of each jurisdiction in which the character of the business conducted by it or
the nature or location of the properties owned or leased by it makes such
registration or qualification necessary, except where the failure so to register
or qualify would not (i) have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the Alliance Parties, taken as a whole, or (ii) subject the
limited partners of the Partnership to any material liability or disability.
(e) Alliance has been duly incorporated and is validly existing in
good standing under the laws of the State of Delaware with full corporate power
and authority to own or lease its properties to be owned or leased at the
Closing Date and to conduct its business to be conducted at the Closing Date, in
each case in all material respects as described in the Registration Statement
and the Prospectus. Alliance is duly registered or qualified as a foreign
corporation for the transaction of business under the laws of each jurisdiction
in which the character of the business conducted by it or the nature or location
of the properties owned or leased by it makes such registration or qualification
necessary, except where the failure so to register or qualify would not (i) have
a material adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Alliance
Entities, taken as a whole, or on Alliance or (ii) subject the limited partners
of the Partnership to any material liability or disability.
(f) At the Closing Date and the Option Closing Date, after giving
effect to the Transactions, the General Partner will be the sole general partner
of the Partnership with a 1% general partner interest in the Partnership; such
general partner interest will be duly authorized and validly issued in
accordance with the Partnership Agreement; and the General Partner will own such
general partner interest free and clear of all liens, encumbrances, security
interests, equities, charges or claims.
(g) At the Closing Date, after giving effect to the Transactions,
the General Partner will own [6,523,168] Subordinated Units and all of the
Incentive Distribution Rights; all of such Subordinated Units and Incentive
Distribution Rights and the limited partner interests represented thereby will
be duly authorized and validly issued in accordance with the Partnership
Agreement, and will be fully paid (to the extent required under the Partnership
Agreement) and nonassessable (except as such nonassessability may be affected by
matters described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); and the General Partner will own such
Subordinated Units and Incentive Distribution Rights free and clear of all
liens, encumbrances, security interests, equities, charges or claims.
(h) At the Closing Date, there will be issued to the Underwriters
the Firm Units (assuming no purchase by the Underwriters of Additional Units);
at the Closing Date or the Option Closing Date, as the case may be, the Firm
Units or the Additional Units, as the case may be, and the limited partner
interests represented thereby will be duly authorized by the Partnership
Agreement and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be validly issued, fully paid
(to the extent required under the
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Partnership Agreement) and nonassessable (except as such nonassessability may be
affected by matters described in the Prospectus under the caption "The
Partnership Agreement--Limited Liability"); and other than the Subordinated
Units and the Incentive Distribution Rights owned by the General Partner, the
Units will be the only limited partner interests of the Partnership issued and
outstanding at the Closing Date or the Option Closing Date.
(i) At the Closing Date and the Option Closing Date, after giving
effect to the Transactions, the General Partner will be the sole general partner
of the Intermediate Partnership with a 1.0101% general partner interest in the
Intermediate Partnership; such general partner interest will be duly authorized
and validly issued in accordance with the Agreement of Limited Partnership of
the Intermediate Partnership (as the same may be amended and restated at or
prior to the Closing Date, the "Intermediate Partnership Agreement"); and the
General Partner will own such general partner interest free and clear of all
liens, encumbrances, security interests, equities, charges or claims.
(j) At the Closing Date and the Option Closing Date, after giving
effect to the Transactions, the Partnership will be the sole limited partner of
the Intermediate Partnership with a 98.9899% limited partner interest in the
Intermediate Partnership; such limited partner interest will have been duly
authorized and validly issued in accordance with the Intermediate Partnership
Agreement and will be fully paid (to the extent required under the Intermediate
Partnership Agreement) and nonassessable (except as such nonassessability may be
affected by matters described in the Prospectus under the caption "The
Partnership Agreement -- Limited Liability"); and the Partnership will own such
interest free and clear of all liens, encumbrances, security interests,
equities, charges or claims.
(k) At the Closing Date and the Option Closing Date, after giving
effect to the Transactions, the General Partner will be the sole manager of each
Operating Company with a .001% managing interest in each Operating Company; the
managing interest in MAPCO Coal LLC will have been duly authorized and validly
issued in accordance with the Limited Liability Company Agreement of MAPCO Coal
LLC (as the same may be amended and restated at or prior to the Closing Date,
the "MAPCO Coal LLC Agreement"); the managing interest in MC Mining LLC will
have been duly authorized and validly issued in accordance with the Limited
Liability Company Agreement of MC Mining LLC (as the same may be amended and
restated at or prior to the Closing Date, the "MC Mining LLC Agreement" and,
collectively with the MAPCO Coal LLC Agreement the "Operating Company LLC
Agreements"); and the General Partner will own such managing interests free and
clear of all liens, encumbrances, security interests, equities, charges or
claims.
(l) At the Closing Date and the Option Closing Date, after giving
effect to the Transactions, the Intermediate Partnership will own a 99.999%
non-managing interest in each Operating Company; such interest will have been
duly authorized and validly issued in accordance with the Operating Company LLC
Agreements and will be fully paid (to the extent required under the Operating
Company LLC Agreements) and nonassessable (except as such nonassessability may
be affected by Section 18-607 of the Delaware LLC Act); and the Intermediate
Partnership will own such interests free and clear of all liens, encumbrances,
security interests, equities, charges or claims.
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(m) At the Closing Date, after giving effect to the Transactions,
MAPCO Coal LLC will own a 100% interest in each of the Subsidiaries; such
interests will have been duly authorized and validly issued in accordance with
the limited liability company agreements of the Subsidiaries, as the same may be
amended and restated at or prior to the Closing Date (the "Subsidiary LLC
Agreements") and will be fully paid (to the extent required under the Subsidiary
LLC Agreements) and nonassessable (except as such nonassessability may be
affected by Section 18-607 of the Delaware LLC Act); and MAPCO Coal LLC will own
such member interests free and clear of all liens, encumbrances, security
interests, equities, charges or claims.
(n) At the Closing Date, after giving effect to the Transactions,
Alliance will own a 100% interest in the General Partner; such interest will
have been duly authorized and validly issued in accordance with the Limited
Liability Company Agreement of the General Partner (as the same may be amended
and restated at or prior to the Closing Date, the "General Partner LLC
Agreement" and together with the Partnership Agreement, the Intermediate
Partnership Agreement, the Operating Company LLC Agreements and the Subsidiary
LLC Agreements, the "Organization Agreements") and will be fully paid (to the
extent required under the General Partner LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Section 18-607 of the
Delaware LLC Act); and Alliance will own such member interest free and clear of
all liens, encumbrances, security interest, equities, charges or claims.
(o) None of the General Partner, the Partnership, the Intermediate
Partnership, the Operating Companies or the Subsidiaries has any subsidiaries
(other than the Partnership, the Intermediate Partnership, the Operating
Companies or the Subsidiaries themselves which, individually or considered as a
whole, would be deemed to be a significant subsidiary (as such term is defined
in Section 1-02(w) of Regulation S-X of the Act).
(p) Except as described in the Prospectus, there are no preemptive
rights or other rights to subscribe for or to purchase, nor any restriction upon
the voting or transfer of, any limited partner interests in the Partnership or
any interest in the Alliance Entities pursuant to the Organization Agreements,
or any agreement or other instrument to which any Alliance Entity is a party or
by which any one of them may be bound. Neither the filing of the Registration
Statement nor the offering or sale of the Units as contemplated by this
Agreement gives rise to any rights for or relating to the registration of any
Units or other securities of the Alliance Entities. Except as described in the
Prospectus, there are no outstanding options or warrants to purchase (i) any
Common Units or Subordinated Units or other partnership interests in the
Partnership or (ii) any interests in the other Alliance Entities. The Units,
when issued and delivered against payment therefor as provided herein, the
Subordinated Units and the Incentive Distribution Rights, when issued and
delivered in accordance with the terms of the Partnership Agreement, and the
Notes, when issued and delivered in accordance with the terms of the Note
Purchase Agreement, will conform in all material respects to the description
thereof contained in the Prospectus. The Partnership has all requisite power and
authority to issue, sell and deliver (i) the Units, in accordance with and upon
the terms and conditions set forth in this Agreement, the Partnership Agreement
and the Registration Statement and Prospectus and (ii) the Subordinated Units
and Incentive Distribution Rights, in accordance with the terms and conditions
set forth in the Partnership Agreement. The
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General Partner has all requisite power and authority to issue, sell and deliver
the Notes, in accordance with and upon the terms and conditions set forth in the
Note Purchase Agreement. The Intermediate Partnership has all requisite power
and authority to assume the General Partner's obligations under the Notes in
accordance with and upon the terms and conditions set forth in the Note Purchase
Agreement and the Contribution and Conveyance Agreement. At the Closing Date and
the Option Closing Date, all corporate, partnership and limited liability
company action, as the case may be, required to be taken by the Alliance
Entities or any of their shareholders, members or partners for the
authorization, issuance, sale and delivery of the Units, the Subordinated Units
and Incentive Distribution Rights, the execution and delivery of the Operative
Agreements (as defined in Section 6(r)) and the consummation of the transactions
(including the Transactions) contemplated by this Agreement and the Operative
Agreements, shall have been validly taken.
(q) The execution and delivery of, and the performance by each of
the Alliance Parties of their respective obligations under, this Agreement have
been duly and validly authorized by each of the Alliance Parties, and this
Agreement has been duly executed and delivered by each of the Alliance Parties,
and constitutes the valid and legally binding agreement of each of the Alliance
Parties, enforceable against each of the Alliance Parties in accordance with its
terms, provided that the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws.
(r) At or before the Closing Date, the Partnership Agreement will
have been duly authorized, executed and delivered by the General Partner and the
Organizational Limited Partner and will be a valid and legally binding agreement
of the General Partner and the Organizational Limited Partner, enforceable
against the General Partner and the Organizational Limited Partner in accordance
with its terms; at or before the Closing Date, the General Partner LLC Agreement
will have been duly authorized, executed and delivered by Alliance and will be a
valid and legally binding agreement of Alliance, enforceable against Alliance in
accordance with its terms; at or before the Closing Date, the Intermediate
Partnership Agreement will have been duly authorized, executed and delivered by
the General Partner and the Partnership and will be a valid and legally binding
agreement of the General Partner and the Partnership, enforceable against the
General Partner and the Partnership in accordance with its terms; at or before
the Closing Date, the Operating Company LLC Agreements will have been duly
authorized, executed and delivered by each of the General Partner and the
Intermediate Partnership and will be valid and legally binding agreements of the
General Partner and the Intermediate Partnership, enforceable against each of
them in accordance with their respective terms; at or before the Closing Date,
the Subsidiary LLC Agreements will have been duly authorized, executed and
delivered by the Intermediate Partnership and will be valid and legally binding
agreements of the Intermediate Partnership enforceable against it in accordance
with their respective terms; at or before the Closing Date, the Notes and the
Note Purchase Agreement will have been duly authorized, executed and delivered
by the General Partner and will be valid and legally binding agreements of the
General Partner enforceable against the General Partner in accordance with their
respective terms, and upon assumption of the Notes and the
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Note Purchase Agreement by the Intermediate Partnership pursuant to the Note
Purchase Agreement and the Contribution and Conveyance Agreement, will be valid
and legally binding agreements of the Intermediate Partnership enforceable
against the Intermediate Partnership in accordance with their respective terms;
at or before the Closing Date, each of Merger and the Conveyance Documents will
have been duly authorized, executed and delivered by the parties thereto and
will be valid and legally binding agreements of the parties thereto enforceable
against such parties in accordance with their respective terms; at or before the
Closing Date, an omnibus agreement (the "Omnibus Agreement") will have been duly
authorized, executed and delivered by each of the Partnership, the Intermediate
Partnership, the Operating Companies, the General Partner and Alliance and will
be a valid and legally binding agreement of each of them enforceable against
each of them in accordance with its terms; at or before the Closing Date, the
Bank Credit Agreement will have been duly authorized, executed and delivered by
the General Partner and will be a valid and legally binding agreement of the
General Partner enforceable against the General Partner in accordance with its
terms, and upon assumption of the Bank Credit Agreement by the Intermediate
Partnership pursuant to the Bank Credit Agreement and the Contribution and
Conveyance Agreement, will be a valid and legally binding agreement of the
Intermediate Partnership enforceable against the Intermediate Partnership in
accordance with its terms; provided that, with respect to each agreement
described in this Section 6(r), the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and provided, further, that the indemnity,
contribution and exoneration provisions contained in any of such agreements may
be limited by applicable laws and public policy. The Organization Agreements,
the Note Purchase Agreement, the Notes, the Merger and Conveyance Documents, the
Omnibus Agreement and the Bank Credit Agreement are herein collectively referred
to as the "Operative Agreements."
(s) None of the offering, issuance and sale by the Partnership of
the Units, the offering, issuance and sale by the General Partner of the Notes,
the execution, delivery and performance of this Agreement or the Operative
Agreements by the Alliance Entities which are parties thereto, or the
consummation of the transactions contemplated hereby and thereby (including the
Transactions) (i) conflicts or will conflict with or constitutes or will
constitute a violation of the agreement of limited partnership, limited
liability company agreement, certificate or articles of incorporation or bylaws
or other organizational documents of any of the Alliance Entities or Alliance,
(ii) conflicts or will conflict with or constitutes or will constitute a breach
or violation of, or a default under (or an event which, with notice or lapse of
time or both, would constitute such an event), any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which any of
the Alliance Entities or Alliance is a party or by which any of them or any of
their respective properties may be bound, (iii) violates or will violate any
statute, law or regulation or any order, judgment, decree or injunction of any
court or governmental agency or body directed to any of the Alliance Entities or
Alliance or any of their properties in a proceeding to which any of them or
their property is a party or (iv) will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of any of the
Alliance Entities or Alliance, in the case of clauses (ii), (iii) or (iv), which
conflicts, breaches, violations or defaults would have a
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material adverse effect upon the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Alliance
Entities, taken as a whole.
(t) No permit, consent, approval, authorization, order,
registration, filing or qualification of or with any court, governmental agency
or body is required in connection with the execution and delivery of, or the
consummation by the Alliance Entities of the transactions contemplated by, this
Agreement or the Operative Agreements (including the Transactions), except (i)
for such permits, consents, approvals and similar authorizations required under
the Securities Act, the Exchange Act and state securities or "Blue Sky" laws,
(ii) for such permits, consents, approvals, certificates and similar
authorizations which have been, or prior to the Closing Date will be, obtained
and (iii) for such permits, consents, approvals, certificates and similar
authorizations which, if not obtained, would not, individually or in the
aggregate, have a material adverse effect upon the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Alliance Parties, taken as a whole.
(u) None of the Alliance Entities or Alliance is in (i) violation of
its agreement of limited partnership, limited liability company agreement,
certificate or articles of incorporation or bylaws or other organizational
documents, or of any law, statute, ordinance, administrative or governmental
rule or regulation applicable to it or of any decree of any court or
governmental agency or body having jurisdiction over it or (ii) breach, default
(or an event which, with notice or lapse of time or both, would constitute such
an event) or violation in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any agreement, indenture, lease or other instrument to which
it is a party or by which it or any of its properties may be bound, which
breach, default or violation would, if continued, have a material adverse effect
on the condition (financial or other), business, prospects, properties, net
worth or results of operations of the Alliance Entities, taken as a whole, or
could materially impair the ability of any of the Alliance Parties to perform
their obligations under this Agreement or the Operative Agreements. To the
knowledge of the Alliance Parties, no third party to any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which any of
the Alliance Entities is a party or by which any of them is bound or to which
any of their properties are subject, is in default under any such agreement,
which breach, default or violation would, if continued, have a material adverse
effect on the condition (financial or other), business, prospects, properties,
net worth or results of operations of the Alliance Entities, taken as a whole.
(v) The accountants, Deloitte & Touche LLP, who have certified or
shall certify the audited financial statements included in the Registration
Statement, any Prepricing Prospectus and the Prospectus (or any amendment or
supplement thereto), are independent public accountants with respect to the
Alliance Entities as required by the Act and the applicable published rules and
regulations thereunder.
(w) At March 31, 1999, the Partnership would have had, on the
consolidated pro forma basis indicated in the Prospectus (and any amendment or
supplement thereto), a capitalization as set forth therein. The financial
statements (including the related notes and supporting schedules) included in
the Registration Statement, the Prepricing Prospectus dated __________, 1999 and
the
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Prospectus (and any amendment or supplement thereto) present fairly in all
material respects the financial position, results of operations and cash flows
of the entities purported to be shown thereby on the basis stated therein at the
respective dates or for the respective periods which have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except to the extent disclosed therein. The
selected historical and pro forma information set forth in the Registration
Statement, the Prepricing Prospectus dated __________, 1999 and the Prospectus
(and any amendment or supplement thereto) under the caption "Selected Historical
and Pro Forma Financial and Operating Data" is accurately presented in all
material respects and prepared on a basis consistent with the audited and
unaudited historical consolidated financial statements and pro forma financial
statements from which it has been derived. The pro forma financial statements of
the Partnership included in the Registration Statement, the Prepricing
Prospectus dated __________, 1999 and the Prospectus (and any amendment or
supplement thereto) have been prepared in all material respects in accordance
with the applicable accounting requirements of Article 11 of Regulation S-X of
the Commission; the assumptions used in the preparation of such pro forma
financial statements are, in the opinion of the management of the Alliance
Entities and Alliance, reasonable; and the pro forma adjustments reflected in
such pro forma financial statements have been properly applied to the historical
amounts in compilation of such pro forma financial statements.
(x) Except as disclosed in the Registration Statement, the
Prepricing Prospectus dated __________, 1999 and the Prospectus (or any
amendment or supplement thereto), subsequent to the respective dates as of which
such information is given in the Registration Statement, the Prepricing
Prospectus dated __________, 1999 and the Prospectus (or any amendment or
supplement thereto), (i) none of the Alliance Entities has incurred any
liability or obligation, indirect, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that, singly or in the
aggregate, is material to the Alliance Entities, taken as a whole, (ii) there
has not been any material change in the capitalization, or material increase in
the short-term debt or long-term debt, of the Alliance Entities and (iii) there
has not been any material adverse change, or any development involving or which
may reasonably be expected to involve, singly or in the aggregate, a prospective
material adverse change in the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Alliance
Entities, taken as a whole.
(y) There are no legal or governmental proceedings pending or, to
the knowledge of the Alliance Parties, threatened, against any of the Alliance
Entities, or to which any of the Alliance Entities is a party, or to which any
of their respective properties is subject, that are required to be described in
the Registration Statement or the Prospectus but are not described as required,
and there are no agreements, contracts, indentures, leases or other instruments
that are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that are
not described or filed as required by the Act.
(z) Upon consummation of the Transactions on the Closing Date, the
Operating Companies and the Subsidiaries will have good and indefeasible title
to all real property and good title to all personal property described in the
Prospectus to be owned by the Operating Companies and the Subsidiaries, free and
clear of all liens, claims, security interests or other encumbrances
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except (i) as described in the Prospectus and (ii) such as do not materially
interfere with the use of such properties taken as a whole as they have been
used in the past and are proposed to be used in the future as described in the
Prospectus; and all real property and buildings held under lease by the
Operating Companies and the Subsidiaries upon consummation of the Transactions
on the Closing Date will be held by the Operating Companies and the Subsidiaries
under valid and subsisting and enforceable leases with such exceptions as do not
materially interfere with the use of such properties taken as a whole as they
have been used in the past and are proposed to be used in the future as
described in the Prospectus. The Merger and Conveyance Documents were, or as of
the Closing Date will be, legally sufficient to transfer or convey to the
Operating Companies and the Subsidiaries all properties not already held by them
that are, individually or in the aggregate, required to enable the Operating
Companies and the Subsidiaries to conduct their operations (in all material
respects as contemplated by the Prospectus), subject to the conditions,
reservations and limitations contained in the Merger and Conveyance Documents
and those set forth in the Prospectus. The Operating Companies and the
Subsidiaries will, upon execution and delivery of the Merger and Conveyance
Documents, succeed in all material respects to the business, assets, properties,
liabilities and operations reflected by the pro forma financial statements of
the Partnership, except as disclosed in the Prospectus and the Merger and
Conveyance Documents.
(aa) The Partnership has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Units, will not distribute, any prospectus (as defined under the Act) in
connection with the offering and sale of the Units other than the Registration
Statement, any Prepricing Prospectus, the Prospectus or other materials, if any,
permitted by the Act, including Rule 134 of the general rules and regulations
thereunder.
(bb) Each of the Alliance Entities has, or at the Closing Date will
have, such permits, consents, licenses, franchises, certificates and
authorizations of governmental or regulatory authorities ("permits") as are
necessary to own its properties and to conduct its business in the manner
described in the Prospectus, subject to such qualifications as may be set forth
in the Prospectus and except for such permits which, if not obtained, would not
have, individually or in the aggregate, a material adverse effect upon the
ability of the Alliance Entities considered as a whole to conduct their
businesses in all material respects as currently conducted and as contemplated
by the Prospectus to be conducted; each of the Alliance Entities has, or at the
Closing Date will have, fulfilled and performed all its material obligations
with respect to such permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
results in any impairment of the rights of the holder of any such permit, except
for such revocations, terminations and impairments that would not have a
material adverse effect upon the ability of the Alliance Entities considered as
a whole to conduct their businesses in all material respects as currently
conducted and as contemplated by the Prospectus to be conducted, subject in each
case to such qualification as may be set forth in the Prospectus; and, except as
described in the Prospectus, none of such permits contains any restriction that
is materially burdensome to the Alliance Entities considered as a whole.
(cc) Each of the Alliance Entities has, or at the Closing Date will
have, such consents, easements, rights-of-way or licenses from any person
("rights-of-way") as are necessary
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to conduct its business in the manner described in the Prospectus, subject to
such qualifications as may be set forth in the Prospectus and except for such
rights-of-way which, if not obtained, would not have, individually or in the
aggregate, a material adverse effect upon the ability of the Alliance Entities
considered as a whole to conduct their businesses in all material respects as
currently conducted and as contemplated by the Prospectus to be conducted; each
of the Alliance Entities has, or at the Closing Date will have, fulfilled and
performed all its material obligations with respect to such rights-of-way and no
event has occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or would result in any impairment of the
rights of the holder of any such rights-of-way, except for such revocations,
terminations and impairments that would not have a material adverse effect upon
the ability of the Alliance Entities considered as a whole to conduct their
businesses in all material respects as currently conducted and as contemplated
by the Prospectus to be conducted, subject in each case to such qualification as
may be set forth in the Prospectus; and, except as described in the Prospectus,
none of such rights-of-way contains any restriction that is materially
burdensome to the Alliance Entities considered as a whole.
(dd) The Partnership (i) makes and keeps books, records and
accounts, which, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of assets and (ii) maintains systems of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or specific
authorization; (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (C) access to assets is
permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(ee) Each of the Alliance Entities and Alliance has filed (or has
obtained extensions with respect to) all material tax returns required to be
filed through the date hereof, which returns are complete and correct in all
material respects, and has timely paid all taxes shown to be due pursuant to
such returns, other than those (i) which, if not paid, would not have a material
adverse effect on the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Alliance Entities, taken
as a whole, or (ii) which are being contested in good faith.
(ff) None of the Alliance Entities is now, and after sale of the
Units to be sold by the Partnership hereunder and application of the net
proceeds from such sale as described in the Prospectus under the caption "Use of
Proceeds," none of the Alliance Entities will be, (i) an "investment company" or
a company "controlled by" an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or (ii) a "public utility company,"
"holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" thereof, under the Public Utility Holding Company Act of 1935, as
amended.
(gg) None of the Alliance Entities has sustained since the date of
the latest audited financial statements included in the Prospectus any material
loss or interference with its business from fire, explosion, flood or other
calamity whether or not covered by insurance, or from any labor
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dispute or court or governmental action, investigation, order or decree,
otherwise than as set forth or contemplated in the Prospectus.
(hh) None of the Alliance Entities or Alliance has violated any
environmental, safety, health or similar law or regulation applicable to its
business relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), or lacks any permits, licenses or other approvals
required of them under applicable Environmental Laws to own, lease or operate
their properties and conduct their business as described in the Prospectus or is
violating any terms and conditions of any such permit, license or approval,
which in each case would have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the Alliance Entities, taken as a whole.
(ii) Except as described in or contemplated by the Prospectus, no
material labor dispute with the employees of any of the Alliance Entities exists
or, to the knowledge of any of the Alliance Parties, is imminent.
(jj) The Alliance Entities maintain insurance covering their
properties, operations, personnel and businesses against such losses and risks
as are reasonably adequate to protect them and their businesses in a manner
consistent with other businesses similarly situated. None of the Alliance
Entities or Alliance has received notice from any insurer or agent of such
insurer that substantial capital improvements or other expenditures will have to
be made in order to continue such insurance, and all such insurance is
outstanding and duly in force on the date hereof and will be outstanding and
duly in force on the Closing Date.
(kk) Except as described in the Prospectus, there is (i) no action,
suit or proceeding before or by any court, arbitrator or governmental agency,
body or official, domestic or foreign, now pending or, to the knowledge of the
Alliance Parties, threatened, to which any of the Alliance Entities or Alliance,
or any of their respective subsidiaries, is or may be a party or to which the
business or property of any of the Alliance Entities or Alliance, or any of
their respective subsidiaries, is or may be subject, (ii) no statute, rule,
regulation or order that has been enacted, adopted or issued by any governmental
agency or that has been proposed by any governmental body and (iii) no
injunction, restraining order or order of any nature issued by a federal or
state court or foreign court of competent jurisdiction to which any of the
Alliance Entities or Alliance, or any of their respective subsidiaries, is or
may be subject, that, in the case of clauses (i), (ii) and (iii) above, is
reasonably expected to (A) singly or in the aggregate have a material adverse
effect on the condition (financial or other), business, prospects, properties,
net worth or results of operations of the Alliance Entities, taken as a whole,
(B) prevent or result in the suspension of the offering and issuance of the
Units or the Notes, or (C) in any manner draw into question the validity of this
Agreement or any Operative Agreement.
(ll) The sale and issuance of the Subordinated Units and the
Incentive Distribution Rights to the General Partner pursuant to the Partnership
Agreement and the sale and issuance of the Notes pursuant to the Note Purchase
Agreement are exempt from the registration requirements of
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the Act and the securities laws of any state having jurisdiction with respect
thereto, and none of the Alliance Entities or Alliance has taken or will take
any action that would cause the loss of such exemption.
(mm) The Units have been approved for listing on the New York Stock
Exchange ("NYSE"), subject only to official notice of issuance.
7. Indemnification and Contribution. (a) Each of the Alliance Parties,
jointly and severally, agrees to indemnify and hold harmless each of you and
each other Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Prepricing Prospectus or in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information furnished in writing to the
Partnership or the General Partner by or on behalf of any Underwriter through
you expressly for use in connection therewith; provided, however, that the
indemnification contained in this paragraph (a) with respect to any Prepricing
Prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) on account of any such loss, claim,
damage, liability or expense arising from the sale of the Units by such
Underwriter to any person if a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the Act and the
regulations thereunder, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such Prepricing
Prospectus was corrected in the Prospectus, provided that the Partnership has
delivered the Prospectus to the several Underwriters in requisite quantity and
on a timely basis to permit such delivery or sending. The foregoing indemnity
agreement shall be in addition to any liability which any Alliance Party may
otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against an Alliance Party, such Underwriter or such
controlling person shall promptly notify the Alliance Parties in writing, and
the Partnership shall assume the defense thereof, including the employment of
counsel and payment of all reasonable fees and expenses. The failure to notify
the indemnifying party shall not relieve it from liability which it may have to
an indemnified party unless the indemnifying party is foreclosed by reason of
such delay from asserting a defense otherwise available to it. Such Underwriter
or any such controlling person shall have the right to employ separate counsel
in any such action, suit or proceeding and to participate in (but not control)
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (i) an Alliance
Party has agreed in writing to pay such fees and expenses, (ii) the Alliance
Parties have failed to assume the defense and employ counsel
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or (iii) the named parties to any such action, suit or proceeding (including any
impleaded parties) include both such Underwriter or such controlling person and
an Alliance Party, and such Underwriter or such controlling person shall have
been advised by its counsel that representation of such indemnified party and
such Alliance Party by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by the
same counsel has been proposed) due to actual or potential differing interests
between them (in which case the Alliance Parties shall not have the right to
assume the defense of such action, suit or proceeding on behalf of such
Underwriter or such controlling person). It is understood, however, that the
Alliance Parties shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Underwriters and controlling persons not having actual or potential
differing interests with you or among themselves, which firm shall be designated
in writing by Xxxxxxx Xxxxx Xxxxxx Inc., and that all such fees and expenses
shall be reimbursed as they are incurred. None of the Alliance Parties shall be
liable for any settlement of any such action, suit or proceeding effected
without its written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Alliance Parties agree, jointly and severally, to indemnify and
hold harmless any Underwriter, to the extent provided in the preceding
paragraph, and any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Alliance Parties, their respective directors and officers
who sign the Registration Statement, and any person who controls the Alliance
Parties within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Alliance
Parties to each Underwriter, but only with respect to information furnished in
writing by or on behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against an Alliance Party, any of such directors and officers or any
such controlling person based on the Registration Statement, the Prospectus or
any Prepricing Prospectus, or any amendment or supplement thereto, and in
respect of which indemnity may be sought against any Underwriter pursuant to
this paragraph (c), such Underwriter shall have the rights and duties given to
the Alliance Entities by paragraph (b) above (except that if an Alliance Party
shall have assumed the defense thereof such Underwriter shall not be required to
do so, but may employ separate counsel therein and participate in (but not
control) the defense thereof, but the fees and expenses of such counsel shall be
at such Underwriter's expense), and the Alliance Parties, any of such directors
and officers and any such controlling person shall have the rights and duties
given to the Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the Underwriters may
otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraph (a) or (c) hereof in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then an indemnifying party, in lieu of indemnifying such
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indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Alliance Entities and Alliance and its affiliates on
the one hand and the Underwriters on the other hand from the offering of the
Units, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Alliance Parties on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Alliance
Entities and Alliance and its affiliates on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Alliance Entities
and Alliance and its affiliates bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault of the Alliance Parties
on the one hand, and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Alliance Entities or any other affiliate
of the Alliance Parties on the one hand, or by the Underwriters on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Alliance Parties and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by a pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price of the Units underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7 are several
in proportion to the respective numbers of Firm Units set forth opposite their
names in Schedule I hereto (or such numbers of Firm Units increased as set forth
in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
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release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Alliance Parties set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Alliance Parties or any of their respective
directors or officers or any person controlling the Alliance Parties, (ii)
acceptance of any Units and payment therefor in accordance with the terms of
this Agreement, and (iii) any termination of this Agreement. A successor to any
Underwriter or any person controlling any Underwriter, or to the Alliance
Parties or any of their respective directors or officers or any person
controlling an Alliance Party shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
7.
8. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Units hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
to be declared effective before the offering of the Units may commence, the
registration statement or such post-effective amendment shall have become
effective not later than 5:30 p.m., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by Xxxxxxx Xxxxx
Barney Inc., and all filings, if any, required by Rules 424 and 430A under the
Act shall be or have been timely made, as the case may be; no stop order
suspending the effectiveness of the registration statement shall have been
issued and no proceeding for that purpose shall have been instituted or, to the
knowledge of the Alliance Parties or any Underwriter, threatened by the
Commission and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, prospects, properties, net worth or results of operations of any of
the Alliance Entities not contemplated by the Prospectus, which in your opinion,
would materially adversely affect the market for the Units, or (ii) any event or
development relating to or involving any of the Alliance Entities or any
executive officer or director of any of such entities which makes any statement
made in the Prospectus untrue or which, in the opinion of the Partnership and
its counsel or the Underwriters and their counsel, requires the making of any
addition to or change in the Prospectus in order to state a material fact
required by the Act or any other law to be stated therein or necessary in order
to make the statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion,
materially adversely affect the market for the Units.
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(c) You shall have received on the Closing Date, an opinion of
Xxxxxxx & Xxxxx L.L.P., special counsel for the Alliance Entities, dated the
Closing Date and addressed to you, to the effect that:
(i) Each of the Partnership and the Intermediate Partnership has
been duly formed and is validly existing in good standing as a limited
partnership under the Delaware LP Act with all necessary partnership
power and authority to own or lease its properties, assume the
liabilities being assumed by it pursuant to the Merger and Conveyance
Documents and conduct its business, in each case in all material
respects as described in the Registration Statement and the Prospectus.
(ii) Each of the Partnership and the Intermediate Partnership is
duly registered or qualified as a foreign limited partnership for the
transaction of business under the laws of the States set forth on
Exhibit A to this opinion; and, to such counsel's knowledge, such
jurisdictions are the only jurisdictions in which the character of the
business conducted by the Partnership and the Intermediate Partnership
or the nature or location of the properties owned or leased by it make
such registration or qualification necessary (except where the failure
to so register or so qualify would not (A) have a material adverse
effect on the condition (financial or other), business or results of
operations of the Alliance Entities, taken as a whole, or (B) subject
the limited partners of the Partnership to any material liability or
disability).
(iii) Each Operating Company has been duly formed and is validly
existing in good standing as a limited liability company under the
Delaware LLC Act with all necessary limited liability company power and
authority to own or lease its properties, assume the liabilities being
assumed by it pursuant to the Merger and Conveyance Documents and
conduct its business, in each case in all material respects as
described in the Registration Statement and the Prospectus.
(iv) Each Operating Company is duly registered or qualified as a
foreign limited liability company for the transaction of business under
the laws of the States set forth on Exhibit A to this opinion; and, to
such counsel's knowledge, such jurisdictions are the only jurisdictions
in which the character of the business conducted by each Operating
Company or the nature or location of the properties owned or leased by
it make such registration or qualification necessary (except where the
failure to so register or so qualify would not (A) have a material
adverse effect on the condition (financial or other), business or
results of operations of the Alliance Entities, taken as a whole, or
(B) subject the limited partners of the Partnership to any material
liability or disability).
(v) The General Partner has been duly formed and is validly
existing in good standing as a limited liability company under the
Delaware LLC Act, with all necessary limited liability company power
and authority to own or lease its properties, conduct its business and
act as general partner of the Partnership and the Intermediate
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Partnership and managing member of each of the Operating Companies, in
each case in all material respects as described in the Registration
Statement and the Prospectus.
(vi) The General Partner is duly registered or qualified as a
foreign limited liability company for the transaction of business under
the laws of the States set forth on Exhibit A to this opinion; and to
such counsel's knowledge, such jurisdictions are the only jurisdictions
in which the character of the business conducted by the General Partner
or the nature or location of the properties owned or leased by it make
such registration or qualification necessary (except where the failure
to so register or so qualify would not (A) have a material adverse
effect on the condition (financial or other), business or results of
operations of the Alliance Parties, taken as a whole, or (B) subject
the limited partners of the Partnership to any material liability or
disability).
(vii) The General Partner is the sole general partner of the
Partnership, with a 1% general partner interest in the Partnership;
such general partner interest has been duly authorized and validly
issued in accordance with the Partnership Agreement; and the General
Partner owns such general partner interest free and clear of all liens,
encumbrances, security interests, charges or claims (A) in respect of
which a financing statement under the Uniform Commercial Code of the
State of Delaware naming the General Partner as debtor is on file in
the office of the Secretary of State of the State of Delaware or (B)
otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LP Act.
(viii) The Subordinated Units, the Incentive Distribution Rights
and the limited partner interests represented thereby have been duly
authorized and validly issued in accordance with the Partnership
Agreement and are fully paid (to the extent required under the
Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus
under "The Partnership Agreement--Limited Liability"); after giving
effect to the Transactions, the General Partner will own [6,523,168]
Subordinated Units and all the Incentive Distribution Rights free and
clear of all liens, encumbrances, security interests, charges or claims
(A) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the General Partner as
debtor is on file in the office of the Secretary of State of the State
of Delaware or (B) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the
Delaware LP Act.
(ix) The [9,123,311] Common Units to be issued and sold to the
Underwriters by the Partnership pursuant to this Agreement and the
limited partner interests represented thereby have been duly authorized
by the Partnership Agreement and, when issued and delivered against
payment therefor as provided in this Agreement, will be validly issued,
fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by
matters described in the Prospectus under the caption "The Partnership
Agreement--Limited Liability"); other than the Subordinated Units and
the Incentive Distribution Rights owned by the General Partner, the
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Units will be the only limited partner interests of the Partnership
issued and outstanding at the Closing Date.
(x) The General Partner is the sole general partner of the
Intermediate Partnership, with a 1.0101% general partner interest in
the Intermediate Partnership; such general partner interest has been
duly authorized and validly issued in accordance with the Intermediate
Partnership Agreement; and the General Partner owns such general
partner interest free and clear of all liens, encumbrances, security
interests, charges or claims (A) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware
naming the General Partner as debtor is on file in the office of the
Secretary of State of the State of Delaware or (B) otherwise known to
such counsel, without independent investigation, other than those
created by or arising under the Delaware LP Act.
(xi) The Partnership owns a 98.9899% limited partner interest in
the Intermediate Partnership; such interest has been duly authorized
and validly issued in accordance with the Intermediate Partnership
Agreement and is fully paid (to the extent required under the
Intermediate Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus
under the caption "The Partnership Agreement -- Limited Liability");
and the Partnership owns such interest free and clear of all liens,
encumbrances, security interests, charges or claims (A) in respect of
which a financing statement under the Uniform Commercial Code of the
State of Delaware naming the Partnership as debtor is on file in the
office of the Secretary of State of the State of Delaware or (B)
otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LP Act.
(xii) The General Partner is the sole manager of each Operating
Company with a .001% managing interest in each Operating Company; such
managing interests have been duly authorized and validly issued in
accordance with the Operating Company LLC Agreements; and the General
Partner owns such managing interests free and clear of all liens,
encumbrances, security interests, charges or claims (A) in respect of
which a financing statement under the Uniform Commercial Code of the
State of Delaware naming the General Partner as debtor is on file in
the office of the Secretary of State of the State of Delaware or (B)
otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LLC Act.
(xiii) The Intermediate Partnership owns a 99.999% non-managing
interest in each Operating Company; such interests have been duly
authorized and validly issued in accordance with the Operating Company
LLC Agreements and are fully paid (to the extent required under the
Operating Company LLC Agreements) and nonassessable (except as such
nonassessability may be affected by Section 18-607 of the Delaware LLC
Act); and the Intermediate Partnership owns such interests free and
clear of all liens, encumbrances, security interests, charges or claims
(A) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the Intermediate
Partnership as debtor is on file in the office of the Secretary of
State of the State
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of Delaware, or (B) otherwise known to such counsel, without
independent investigation, other than those created by or arising under
the Delaware LLC Act.
(xiv) Alliance owns a 100% interest in the General Partner; such
interest has been duly authorized and validly issued in accordance with
the General Partner LLC Agreement and is fully paid (to the extent
required under the General Partner LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Section 18-607 of
the Delaware LLC Act); and Alliance owns such interest free and clear
of all liens, encumbrances, security interests, charges or claims (A)
in respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming Alliance as debtor is on file in
the office of the Secretary of State of the State of Delaware or (B)
otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LLC Act.
(xv) Except as described in the Prospectus, there are no
preemptive rights or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any limited partner
interests in the Alliance Entities pursuant to the Organization
Agreements, or any other agreement or instrument known to such counsel
to which an Alliance Entity is a party or by which any one of them may
be bound. To such counsel's knowledge, neither the filing of the
Registration Statement nor the offering or sale of the Units as
contemplated by this Agreement gives rise to any rights for or relating
to the registration of any Units or other securities of the Alliance
Entities. To such counsel's knowledge, except as described in the
Prospectus, there are no outstanding options or warrants to purchase
(A) any Common Units or Subordinated Units or other partnership
interests in the Partnership or (B) any interests in the other Alliance
Entities. The Partnership has all requisite power and authority to
issue, sell and deliver (A) the Units, in accordance with and upon the
terms and conditions set forth in this Agreement, the Partnership
Agreement and the Registration Statement and Prospectus, and (B) the
Subordinated Units and Incentive Distribution Rights, in accordance
with the terms and conditions set forth in the Partnership Agreement.
The General Partner has all requisite power and authority to issue,
sell and deliver the Notes, in accordance with and upon the terms and
conditions set forth in the Note Purchase Agreement. The Intermediate
Partnership has all requisite power and authority to assume the General
Partner's obligations under the Notes in accordance with and upon the
terms and conditions set forth in the Note Purchase Agreement and the
Contribution and Conveyance Agreement.
(xvi) This Agreement has been duly authorized and validly
executed and delivered by each of the Alliance Parties.
(xvii) Each of the Operative Agreements (other than the
Subsidiary LLC Agreements and the Merger Documents) to which any of the
Alliance Entities is a party has been duly authorized and validly
executed and delivered by each of the Alliance Entities parties
thereto. Each of the Operative Agreements (other than the Subsidiary
LLC Agreements and the Merger Documents) constitutes a valid and
binding obligation of each
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of the Alliance Entities parties thereto, enforceable against each such
party in accordance with its respective terms, subject to (A)
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws from time to time in effect affecting
creditors' rights and remedies generally and general principles of
equity (regardless of whether such principles are considered in a
proceeding at law or in equity) and (B) public policy, applicable law
relating to fiduciary duties and indemnification and an implied
covenant of good faith and fair dealing.
(xviii) None of the offering, issuance and sale by the
Partnership of the Units, the issuance and sale by the General Partner
of the Notes, the execution, delivery and performance of this Agreement
or the Operative Agreements by the Alliance Entities which are parties
thereto, or the consummation of the transactions contemplated hereby
and thereby (including the Transactions) (A) constitutes or will
constitute a violation of the Organization Agreements or the
certificate or articles of incorporation or bylaws or other
organizational documents of any of the Alliance Entities or Alliance,
(B) constitutes or will constitute a breach or violation of, or a
default under (or an event which, with notice or lapse of time or both,
would constitute such an event), any bond, debenture, note or any other
evidence of indebtedness or any agreement, indenture, lease or other
instrument known to such counsel to which any of the Alliance Entities
or Alliance or any of their properties may be bound, (C) results or
will result in any violation of the Delaware LP Act, the Delaware LLC
Act, the DGCL, or federal law, or (D) results or will result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of any of the Alliance Entities or Alliance, which
in the case of clauses (B), (C) or (D) would reasonably be expected to
have a material adverse effect on the financial condition, business or
results of operations of the Alliance Entities, taken as a whole.
(xix) No permit, consent, approval, authorization, order,
registration, filing or qualification of or with any federal or
Delaware court, governmental agency or body having jurisdiction over
the Alliance Entities or any of their respective properties is required
for the offering, issuance and sale by the Partnership of the Units,
the execution, delivery and performance of this Agreement or the
Operative Agreements by the Alliance Entities party thereto or the
consummation of the transactions (including the Transactions)
contemplated by this Agreement and the Operative Agreements, except (A)
as may be required under state securities or "Blue Sky" laws, as to
which such counsel need not express any opinion, (B) for such permits,
consents, approvals, and similar authorizations which have been
obtained, (C) for such permits, consents, approvals, and similar
authorizations which (i) are of a routine or administrative nature,
(ii) are not customarily obtained or made prior to the consummation of
transactions such as those contemplated by this Agreement and (iii) are
expected in the reasonable judgment of the General Partner to be
obtained in the ordinary course of business subsequent to the
consummation of the Transactions, (D) for such permits, consents,
approvals and similar authorizations which, if not obtained, would not,
individually or in the aggregate, have a material adverse effect upon
the condition (financial or other), business, prospects, properties,
net worth or results of operations conducted or to
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be conducted as described in the Prospectus by the Alliance Parties,
taken as a whole or (E) as disclosed in the Prospectus.
(xx) The statements in the Registration Statement and Prospectus
under the captions "The Transactions," "Cash Distribution Policy,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operation--The Partnership--Capital Resources, Liquidity and
Financial Condition," "Business--Regulation," "Business-- Environmental
Regulation," "Certain Relationships and Related Transactions,"
"Conflicts of Interest and Fiduciary Responsibilities," "Description of
the Common Units," "Description of the Subordinated Units" and "The
Partnership Agreement," insofar as they constitute descriptions of the
Operative Agreements or refer to statements of law or legal
conclusions, are accurate and complete in all material respects, and
the Units, the Common Units, the Subordinated Units and the Incentive
Distribution Rights and the Notes conform in all material respects to
the descriptions thereof contained in the Registration Statement and
Prospectus under the captions "Prospectus Summary--The Offering," "Cash
Distribution Policy," "Management's Discussion and Analysis of
Financial Condition and Results of Operations," "Description of the
Common Units," "Description of the Subordinated Units" and "The
Partnership Agreement."
(xxi) The opinion of Xxxxxxx & Xxxxx L.L.P. that is filed as
Exhibit 8.1 to the Registration Statement is confirmed and the
Underwriters may rely upon such opinion as if it were addressed to
them.
(xxii) The Registration Statement was declared effective under
the Act on ___________, 1999; to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
threatened by the Commission; and any required filing of the Prospectus
pursuant to Rule 424(b) has been made in the manner and within the time
period required by such Rule.
(xxiii) The Registration Statement and the Prospectus (except
for the financial statements and the notes and the schedules thereto
and the other financial, statistical and accounting data included in
the Registration Statement or the Prospectus, as to which such counsel
need not express any opinion) comply as to form in all material
respects with the requirements of the Act and the rules and regulations
promulgated thereunder.
(xxiv) To the knowledge of such counsel, (A) there is no legal
or governmental proceeding pending or threatened to which any of the
Alliance Entities is a party or to which any of their respective
properties is subject that is required to be disclosed in the
Prospectus and is not so disclosed and (B) there are no agreements,
contracts or other documents to which any of the Alliance Entities is a
party that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
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(xxv) None of the Alliance Parties is an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(xxvi) Upon delivery to the Underwriters of certificates
evidencing the Units issued in the name of the Underwriters and payment
by the Underwriters of the purchase price for the Units, the
Underwriters will acquire the Units free of any adverse claim (as such
term is defined in Section 8-302 of the New York Uniform Commercial
Code), assuming that the Underwriters are acting in good faith and
without notice of any adverse claim.
(xxvii) The Common Units have been approved for listing on the
NYSE, subject only to official notice of issuance and evidence of
satisfactory distribution.
(xxviii) The offer, sale and issuance of the Subordinated Units
and the Incentive Distribution Rights to the General Partner pursuant
to the Partnership Agreement, and the offer, sale and issuance of the
Notes pursuant to the Note Purchase Agreement are exempt from the
registration requirements of the Act and the securities laws of any
state having jurisdiction with respect thereto.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Alliance Entities and
the independent public accountants of the Partnership and your representatives,
at which the contents of the Registration Statement and the Prospectus and
related matters were discussed, and although such counsel has not independently
verified, is not passing on, and is not assuming any responsibility for the
accuracy, completeness or fairness of the statements contained in, the
Registration Statement and the Prospectus (except to the extent specified in the
foregoing opinion), no facts have come to such counsel's attention that lead
such counsel to believe that the Registration Statement (other than (i) the
financial statements included therein, including the notes and schedules thereto
and the auditors' reports thereon, (ii) the other historical, pro forma and
projected financial information and the statistical and accounting information
included therein and (iii) the exhibits thereto, as to which such counsel need
not comment), as of its effective date contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus (other than (i) the financial statements included therein, including
the notes and schedules thereto and the auditors' reports thereon and (ii) the
other historical, pro forma and projected financial information and the
statistical and accounting information included therein, as to which such
counsel need not comment), as of its issue date and the Closing Date contained
an untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Alliance
Entities and upon information obtained from public officials, (B) assume that
all documents submitted to them as originals are authentic, that all copies
submitted to them conform to the originals thereof, and that the signatures on
all documents examined by them are genuine, (C) state that their opinion is
limited to federal laws, the
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Delaware LP Act, the Delaware LLC Act, the DGCL and the laws of the State of New
York, (D) with respect to the opinions expressed in paragraphs (ii), (iv), (vi),
(viii) and (x) above as to the due qualification or registration as a foreign
limited partnership, corporation or limited liability company, as the case may
be, of each of the Alliance Entities, state that such opinions are based upon
the opinions of ______________________ provided pursuant to (f) below and upon
certificates of foreign qualification or registration provided by the Secretary
of State of the States of Indiana, Illinois, Kentucky, Maryland, Oklahoma and
West Virginia (each of which shall be dated as of a date not more than fourteen
days prior to the Closing Date and shall be provided to you), (E) state that
they express no opinion with respect to the title of any of the Alliance
Entities to any of their respective real or personal property, and (F) state
that they express no opinion with respect to state or local taxes or tax
statutes to which any of the limited partners of the Partnership or any of the
Alliance Entities may be subject.
You shall also have received on the Closing Date, a copy of the
opinions of Xxxxxxx & Xxxxx L.L.P. delivered pursuant to the Note Purchase
Agreement and the Bank Credit Agreement, substantially in the forms provided for
therein, accompanied by a letter dated the Closing Date and addressed to you
from such counsel stating that you are entitled to rely on such opinion as if it
were addressed to you.
(d) You shall have received on the Closing Date an opinion of
Xxxxxxx & Xxxxxx LLP, counsel for the Alliance Entities, dated the Closing Date
and addressed to you, to the effect that:
(i) Each Subsidiary has been duly formed and is validly existing
in good standing under the Delaware LLC Act, with all necessary limited
liability company power and authority to own or lease its properties,
assume the liabilities being assumed by it pursuant to the Merger and
Conveyance Documents and conduct its business, in each case in all
material respect as described in the Registration Statement and the
Prospectus.
(ii) [specify Subsidiaries as applicable] is duly registered or
qualified as a foreign limited liability company for the transaction of
business under the laws of the State of ________; and to such counsel's
knowledge, such jurisdiction is the only jurisdiction in which the
character of the business conducted by [specify Subsidiaries as
applicable] or the nature or location of the properties owned or leased
by it makes such registration or qualification necessary (except where
the failure to so register or so qualify would not (A) have a material
adverse effect on the condition (financial or other), business or
results of operations of the Alliance Entities, taken as a whole, or
(B) subject the limited partners of the Partnership to any material
liability or disability).
(iii) MAPCO Coal LLC owns a 100% interest in each of the
Subsidiaries; such interests have been duly authorized and validly
issued in accordance with the Subsidiary LLC Agreements and is fully
paid (to the extent required under the Subsidiary LLC Agreements) and
nonassessable (except as such nonassessability may be affected by
Section 18-607 of the Delaware LLC Act); MAPCO Coal LLC owns such
interests free and
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clear of all liens, encumbrances, security interests, charges or claims
(A) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming MAPCO Coal LLC as
debtor is on file in the office of the Secretary of State of the State
of Delaware or (B) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the
Delaware LLC Act.
(iv) Each of the Subsidiary LLC Agreements and the Merger
Documents to which any of the Alliance Entities is a party has been
duly authorized and validly executed and delivered by each of the
Alliance Entities parties thereto. Each of the Subsidiary Agreements
and the Merger Documents constitutes a valid and binding obligation of
each of the Alliance Entities parties thereto, enforceable against each
such party in accordance with its respective terms, subject to (A)
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws from time to time in effect affecting
creditors' rights and remedies generally and general principles of
equity (regardless of whether such principles are considered in a
proceeding at law or in equity) and (B) public policy, applicable law
relating to fiduciary duties and indemnification and an implied
covenant of good faith and fair dealing.
(v) Each of the Mergers became effective under the Delaware LLC
Act on ___, 1999.
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Alliance
Entities and upon information obtained from public officials, (B) assume that
all documents submitted to them as originals are authentic, that all copies
submitted to them conform to the originals thereof, and that the signatures on
all documents examined by them are genuine, and (C) state that such opinions are
limited to federal laws and the laws of the states of Delaware.
In rendering such opinion, such counsel shall state that such
opinion letter may be relied upon only by the Underwriters and its counsel in
connection with the Transactions and no other use or distribution of this
opinion letter may be made without such counsel's prior written consent.
(e) You shall have received on the Closing Date an opinion of Xxxxxx
X. Xxxxxxx, Vice President Law and Administration of Alliance, dated the Closing
Date and addressed to you, to the effect that:
(i) Alliance has been duly incorporated and is validly existing
in good standing under the laws of the State of Delaware, with all
necessary corporate power and authority to own or lease its properties
and conduct its business, in each case and all material respects as
described in the Registration Statement and the Prospectus.
(ii) Alliance is duly registered or qualified as a foreign
corporation for the transaction of business under the laws of the
States set forth on Exhibit A to this opinion;
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and, to such counsel's knowledge, such jurisdictions are the only
jurisdictions in which the character of the business conducted by
Alliance or the nature or location of the properties owned or leased by
it make such registration or qualification necessary (except where the
failure to so register or so qualify would not (A) have a material
adverse effect on the condition (financial or other), business or
results of operations of the Alliance Parties, taken as a whole, or (B)
subject the limited partners of the Partnership to any material
liability or disability.
(iii) To the knowledge of such counsel, none of the Alliance
Entities or Alliance is in (A) breach or violation of the provisions of
its agreement of limited partnership, limited liability company
operating agreement, certificate or articles of incorporation or bylaws
or other organizational documents or (B) default (and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default) or violation in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any agreement, indenture, lease or
other instrument to which it is a party or by which it or any of its
properties may be bound, which breach, default or violation would, if
continued, have a material adverse effect on the financial condition,
business or results of operations of the Alliance Entities, taken as a
whole, or could materially impair the ability of any of the Alliance
Entities to perform their obligations under this Agreement or the
Operative Agreements.
(iv) To the knowledge of such counsel, each of the Alliance
Entities has such permits, consents, licenses, franchises and
authorizations ("permits") issued by the appropriate federal, state or
local governmental or regulatory authorities as are necessary to own or
lease its properties and to conduct its business in the manner
described in the Prospectus, subject to such qualifications as may be
set forth in the Prospectus, and except for such permits which, if not
obtained would not reasonably be expected to have, individually or in
the aggregate, a material adverse effect upon the operations conducted
by the Alliance Entities, taken as a whole; and, to the knowledge of
such counsel, none of the Alliance Entities has received any notice of
proceedings relating to the revocation or modification of any such
permits which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected
to have a material adverse effect upon the operations conducted by the
Alliance Entities, taken as a whole.
(v) Except as described in the Prospectus, to the knowledge of
such counsel, there is no litigation, proceeding or governmental
investigation pending or threatened against any of the Alliance
Entities or Alliance which, if adversely determined to such Alliance
Entities or Alliance, is reasonably likely to have a material adverse
effect on the financial condition, business, properties, or results of
operations of the Alliance Entities, taken as a whole.
In addition, such counsel shall state that he has participated in
conferences with officers and other representatives of the Alliance Entities and
the independent public accountants of the Partnership and your representatives,
at which the contents of the Registration Statement and the
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Prospectus and related matters were discussed, and although such counsel has not
independently verified, is not passing on, and is not assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in, the Registration Statement and the Prospectus, no facts have come
to such counsel's attention that lead such counsel to believe that the
Registration Statement (other than (i) the financial statements included
therein, including the notes and schedules thereto and the auditors' reports
thereon, (ii) the other historical, pro forma and projected financial
information and the statistical and accounting information included therein, and
(iii) the exhibits thereto, as to which such counsel need not comment), as of
its effective date contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus (other than (i) the
financial statements included therein, including the notes and schedules thereto
and the auditors' reports thereon and (ii) the other historical, pro forma and
projected financial information and the statistical and accounting information
included therein, as to which such counsel need not comment), as of its issue
date and the Closing Date contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Alliance
Entities and upon information obtained from public officials, (B) assume that
all documents submitted to him as originals are authentic, that all copies
submitted to him conform to the originals thereof, and that the signatures on
all documents examined by him are genuine, (C) state that such opinions are
limited to federal laws and the Delaware LP Act, the Delaware LLC Act and the
DGCL and the laws of the State [of ________] and (D) state that he expresses no
opinion with respect to state or local taxes or tax statutes.
(f) You shall have received on the Closing Date, an opinion of each
of (i) ___________________ with respect to the State of Indiana, (ii)
__________________ with respect to the State of Illinois, (iii)
_________________ with respect to the State of Kentucky, and (iv)
___________________ with respect to the State of Maryland and (v)
__________________ with respect to the State of West Virginia, each of which is
acting as special local counsel for the Alliance Entities, dated the Closing
Date and addressed to you, to the effect that:
(i) Each Alliance Entity [as applicable] has been duly qualified
or registered as a foreign limited liability company or a foreign
limited partnership, as the case may be, for the transaction of
business under the laws of [insert applicable state].
(ii) Each Alliance Entity [as applicable] has all requisite
power and authority as a limited liability company or limited
partnership under the laws of the State of [insert applicable state] to
own or lease its properties and to conduct its business in the State of
[insert applicable state]; and upon the consummation of the
Transactions (assuming that the Partnership will not be liable under
the laws of the State of Delaware for the liabilities of the
Intermediate Partnership, the Operating Companies and the Subsidiaries
and assuming that the Unitholders will not be liable under the laws of
the State of Delaware for liabilities of the Partnership, the
Intermediate Partnership, the Operating Companies and the
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Subsidiaries), the Partnership will not be liable under the laws of the
State of [insert applicable state] for the liabilities of the
Intermediate Partnership, the Operating Companies and the Subsidiaries,
and the Unitholders will not be liable under the laws of the State of
[insert applicable state] for the liabilities of the Partnership, the
Intermediate Partnership, the Operating Companies and the Subsidiaries
except in each case to the same extent as under the laws of the State
of Delaware.
(iii) The execution, delivery and performance of the Conveyance
Agreements relating to the transfer of property in the State of [insert
applicable state] did not or will not violate any statute of the State
of [insert applicable state] or any rule, regulation or, to the
knowledge of such counsel, any order of any agency of the State of
[insert applicable state] having jurisdiction over any of the Alliance
Entities or any of their respective properties, except for any such
violations which, individually or in the aggregate, would not have a
material adverse effect upon the Unitholders or the operations
conducted in the State of [insert applicable state] by the Alliance
Entities taken as a whole.
(iv) Assuming that the Mergers are legally sufficient under
applicable Delaware law to vest in the Alliance Entities [as
applicable] the assets of the parties to the Mergers, then the Mergers
are legally sufficient, under the law of the State of [insert
applicable state], to so vest in the Alliance Entities [as applicable]
the assets of the parties to the Mergers located in the State of
[insert applicable state].
(v) The transfer of property in the State of [insert applicable
state] occurring by operation of law as a result of the Mergers does
not constitute an assignment or transfer of such property by the
parties to the Mergers under the laws of the State of [insert
applicable state] for purposes of contractual restrictions against
assignment or transfer of the rights of such parties to the Mergers
which do not specifically purport to cover transfers by merger or by
operation of law.
(vi) Each of the Conveyance Documents relating to the transfer
of property in the State of [insert applicable state], assuming the due
authorization, execution and delivery thereof by the parties thereto,
to the extent it is a valid and legally binding agreement under the
applicable law as stated therein and that such law applies thereto, is
a valid and legally binding agreement of the parties thereto under the
laws of the State of [insert applicable state], enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general application relating to or affecting creditors' rights
generally and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
each of the Conveyance Documents is in a form legally sufficient as
between the parties thereto to convey to the transferee thereunder all
of the right, title and interest of the transferor stated therein in
and to the properties located in the State of [insert applicable
state], as described in the Conveyance Documents, subject to the
conditions, reservations and limitations contained in the Conveyance
Documents, except motor vehicles or other property
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requiring conveyance of certificated title as to which the Conveyance
Documents are legally sufficient to compel delivery of such
certificated title.
(vii) Each of the assignments contained in the Conveyance
Documents (including, without limitation, the form of the exhibits and
schedules thereto) is in a form legally sufficient for recordation in
the appropriate public offices of the State of [insert applicable
state], to the extent such recordation is required, and, upon proper
recordation of any of such assignments in the State of [insert
applicable state], will constitute notice to all third parties under
the recordation statutes of the State of [insert applicable state]
concerning record title to the assets transferred thereby; recordation
in the office of the County Clerk for each county in which either of
the Operating Companies or any of the Subsidiaries owns property is the
appropriate public office in the State of [insert applicable state] for
the recordation of assignments of interests in real property located in
such county.
(viii) No permit, consent, approval, authorization, order,
registration, filing or qualification of or with any court,
governmental agency or body of the State of [insert applicable state]
having jurisdiction over the Alliance Entities or any of their
respective properties is required for the issuance and sale of the
Units by the Partnership, except (A) as may be required under state
securities or "Blue Sky" laws, as to which such counsel need not
express any opinion, (B) for such permits, consents, approvals and
similar authorizations which have been obtained, and (C) for such
permits, consents, approvals and similar authorizations which, if not
obtained, would not, individually or in the aggregate, have a material
adverse effect upon the condition (financial or other), business,
prospects, properties, net worth or results of operations conducted in
the State of [insert applicable state] by the Alliance Entities, taken
as a whole.
(ix) To the knowledge of such counsel, each of the Alliance
Entities has such permits, consents, licenses, franchises and
authorizations ("permits") issued by the appropriate [insert applicable
state] governmental or regulatory authorities as are necessary to own
or lease its properties and to conduct its business in the manner
described in the Prospectus, subject to such qualifications as may be
set forth in the Prospectus, and except for such permits which, if not
obtained would not reasonably be expected to have, individually or in
the aggregate, a material adverse effect upon the operations conducted
in the State of [insert applicable state] by the Alliance Entities,
taken as a whole; and, to the knowledge of such counsel, none of the
Alliance Entities has received any notice of proceedings relating to
the revocation or modification of any such permits which, individually
or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would reasonably be expected to have a material adverse
effect upon the operations conducted in the State of [insert applicable
state] by the Alliance Entities, taken as a whole.
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Alliance
Entities and upon information obtained from public officials, (B) assume that
all documents submitted to them as originals are authentic, that all copies
submitted to them conform to the originals thereof, and that the signatures on
all documents
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examined by them are genuine, (C) state that such opinions are limited to
federal laws and the laws of the State of [insert applicable state], excepting
therefrom municipal and local ordinances and regulations, (D) state that they
express no opinion with respect to the title of any of the real or personal
property purported to be transferred by the Conveyance Documents and express no
opinion regarding the accuracy of descriptions or references to real or personal
property, and (E) state that they express no opinion with respect to state or
local taxes or tax statutes to which any of the limited partners of the
Partnership or any of the Alliance Entities may be subject.
In rendering such opinion, such counsel shall state that (A) Xxxxxxx &
Xxxxx L.L.P., Xxxxxxx & Xxxxxx, LLP and Xxxxxx X. Xxxxxxx are hereby authorized
to rely upon such opinion letter in connection with the Transactions as if such
opinion letter were addressed and delivered to them on the date hereof and (B)
subject to the foregoing, such opinion letter may be relied upon only by the
Underwriters and its counsel in connection with the Transactions and no other
use or distribution of this opinion letter may be made without such counsel's
prior written consent.
(g) You shall have received on the Closing Date an opinion of Xxxxx
& Xxxxx, L.L.P., counsel for the Underwriters, dated the Closing Date and
addressed to you, with respect to the issuance and sale of the Units, the
Registration Statement and the Prospectus (together with any supplement or
amendment thereto) and other related matters as the Underwriters may reasonably
require.
(h) You shall have received a letter addressed to you and dated on
or prior to the date hereof from Xxxx Intentional Mining Consultants
substantially in the form heretofore approved by you.
(i) You shall have received letters addressed to you, and dated the
date hereof and the Closing Date from Deloitte & Touche LLP, independent public
accountants, substantially in the forms heretofore approved by you.
(j) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or taken or, to the knowledge of the
Partnership and the General Partner, shall be threatened by the Commission at or
prior to the Closing Date; (ii) there shall not have been any change in the
capitalization of any of the Alliance Entities, nor any material increase in the
short-term or the long-term debt of any of the Alliance Entities (other than in
the ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), any material adverse change in or affecting the condition (financial
or other), business, prospects, properties, net worth or results of operations
of the Alliance Entities, taken as a whole; (iv) the Alliance Entities shall not
have any liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the Alliance Entities taken
as a whole other than those reflected in the Registration Statement or the
Prospectus (or any
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amendment or supplement thereto); and (v) all the representations and warranties
of the Alliance Parties contained in this Agreement shall be true and correct on
and as of the date hereof and on and as of the Closing Date as if made on and as
of the Closing Date.
(k) The Alliance Parties shall not have failed at or prior to the
Closing Date to have performed or complied in all material respects with any of
their agreements herein contained and required to be performed or complied with
by them hereunder at or prior to the Closing Date.
(l) The NYSE shall have approved the Units for listing, subject only
to official notice of issuance and evidence of satisfactory distribution.
(m) The Alliance Entities shall have furnished or caused to be
furnished to you such further certificates and documents as you shall have
reasonably requested.
(n) Prior to or simultaneously with the sale of the Units on the
Closing Date, the closings under the Note Purchase Agreement and the Bank Credit
Agreement shall have occurred on substantially the terms described in the
Prospectus.
(o) There shall have been furnished to you at the Closing Date a
certificate reasonably satisfactory to you, signed on behalf of the Partnership
by the General Partner by the President or the Executive Vice President and the
Chief Financial Officer thereof to the effect that: (A) the representations and
warranties of each of the Alliance Parties (other than Alliance) contained in
this Agreement are true and correct at and as of the Closing Date as though made
at and as of the Closing Date; (B) each of the Alliance Parties (other than
Alliance) has in all material respects performed all obligations required to be
performed by it pursuant to the terms of this Agreement at or prior to the
Closing Date; (C) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been instituted
or taken or, to the knowledge of any of the Alliance Parties (other than
Alliance), threatened by the Commission, and all requests for additional
information on the part of the Commission have been complied with or otherwise
satisfied; (D) the Common Units have been duly approved for listing, subject to
official notice of issuance and evidence of a satisfactory distribution, on the
NYSE; and (E) no event contemplated by subsection (j) of this Section 8 in
respect of the Alliance Parties (other than Alliance) shall have occurred.
(p) There shall have been furnished to you at the Closing Date, a
certificate reasonably satisfactory to you, signed on behalf of Alliance by the
President or a Vice President thereof, respectively, to the effect that (A) the
representations and warranties of Alliance contained in this Agreement are true
and correct at and as of the Closing Date as though made at and as of the
Closing Date and (B) Alliance has in all material respects performed all
obligations required to be performed by it pursuant to the terms of this
Agreement at or prior to the Closing Date.
(q) On or prior to the date hereof, the Partnership shall have
furnished to you a letter substantially in the form of Exhibit B hereto from
each officer and each director of the General Partner.
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All such opinions, certificates, letters and other documents referred
to in this Section 8 will be in compliance with the provisions hereof only if
they are reasonably satisfactory in form and substance to you and your counsel.
The Partnership shall furnish to the Underwriters conformed copies of such
opinions, certificates, letters and other documents in such number as they shall
reasonably request.
The several obligations of the Underwriters to purchase Additional
Units hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 8, except that, if the Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (i), (m), (o) and (p) shall be
dated the Option Closing Date in question and the opinions called for by
paragraphs (c), (d), (e) and (g), as applicable, shall be revised to reflect the
sale of Additional Units.
9. Expenses. The Partnership agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Registration Statement, each
Prepricing Prospectus, the Prospectus, and all amendments or supplements to any
of them as may be reasonably requested for use in connection with the offering
and sale of the Units; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Units, including any stamp taxes in
connection with the original issuance and sale of the Units; (iv) the printing
(or reproduction) and delivery of this Agreement, the preliminary and
supplemental Blue Sky Memoranda, and all other agreements or documents printed
(or reproduced) and delivered in connection with the offering of the Units; (v)
the registration of the Common Units under the Exchange Act and the listing of
the Common Units on the NYSE; (vi) the registration or qualification of the
Units for offer and sale under the securities or Blue Sky laws of the several
states as provided in Section 5(g) hereof (including the reasonable fees,
expenses and disbursements of counsel for the Underwriters relating to the
preparation, printing or reproduction, and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and qualification); (vii)
the filing fees in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; (viii) the transportation and
other expenses incurred by or on behalf of officers and employees of the
Partnership in connection with presentations to prospective purchasers of the
Units; and (ix) the fees and expenses of the Partnership's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Partnership.
It is understood, however, that except as otherwise provided in this
Section 9 and Section 5(j) hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on any
resale of the Units by any Underwriter, any advertising expenses connected with
any offers they may make and the transportation and other expenses incurred by
the Underwriters on their own behalf in connection with presentations to
prospective purchasers of the Units.
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10. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Units may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Partnership by notifying you,
or by you, by notifying the Partnership.
If any one or more of the Underwriters shall fail or refuse to purchase
Units which it or they are obligated to purchase hereunder on the Closing Date,
and the aggregate number of Units which such defaulting Underwriter or
Underwriters are obligated but fail or refuse to purchase is not more than
one-tenth of the aggregate number of the Units which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter shall
be obligated, severally, in the proportion which the number of Firm Units set
forth opposite its name in Schedule I hereto bears to the aggregate number of
Firm Units set forth opposite the names of all non-defaulting Underwriters or in
such other proportion as you may specify in accordance with Section 20 of the
Master Agreement Among Underwriters of Xxxxxxx Xxxxx Xxxxxx Inc., to purchase
the Units which such defaulting Underwriter or Underwriters are obligated, but
fail or refuse, to purchase. If any one or more of the Underwriters shall fail
or refuse to purchase Units which it or they are obligated to purchase on the
Closing Date and the aggregate number of Units with respect to which such
default occurs is more than one-tenth of the aggregate number of Units which the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you and the Partnership for the purchase of such Units by one or
more non-defaulting Underwriters or other party or parties approved by you and
the Partnership are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any party hereto (other than the
defaulting Underwriter). In any such case which does not result in termination
of this Agreement, either you or the Partnership shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. If any one or
more of the Underwriters shall fail or refuse to purchase Additional Units which
it or they are obligated to purchase hereunder on the Option Closing Date, each
non-defaulting Underwriter shall be obligated, severally, in the proportion
which the number of Firm Units set forth opposite its name in Schedule I hereto
bears to the aggregate number of Firm Units set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
accordance with Section 20 of the Master Agreement Among Underwriters of Xxxxxxx
Xxxxx Barney Inc., to purchase the Additional Units which such defaulting
Underwriter or Underwriters are obligated, but fail or refuse, to purchase. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Partnership, purchases Units which a
defaulting Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
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11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to any Alliance Entity, by notice to the Partnership, if prior to
the Closing Date or any Option Closing Date (if different from the Closing Date
and then only as to the Additional Units), as the case may be, (i) trading in
securities generally on the New York Stock Exchange, the American Stock Exchange
or the Nasdaq National Market shall have been suspended or materially limited,
(ii) a general moratorium on commercial banking activities in New York shall
have been declared by either federal or state authorities, or (iii) there shall
have occurred any outbreak or escalation of hostilities or other international
or domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States is
such as to make it, in your judgment, impracticable or inadvisable to commence
or continue the offering of the Units at the offering price to the public set
forth on the cover page of the Prospectus or to enforce contracts for the resale
of the Units by the Underwriters. Notice of such termination may be given to the
Partnership by telegram, telecopy or telephone and shall be subsequently
confirmed by letter.
12. Information Furnished by the Underwriters. The statements set forth
in the last paragraph on the cover page, and the statements in the first, third,
ninth, tenth, twelfth and fourteenth paragraphs and the third sentence of the
sixth paragraph under the caption "Underwriting" in any Prepricing Prospectus
and in the Prospectus, constitute the only information furnished by or on behalf
of the Underwriters through you as such information is referred to in Sections
6(a) and 7 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to any of the Alliance Entities, at the
office of the Partnership at 0000 Xxxxx Xxxxxxx Xxxxxx, X.X. Xxx 00000, Xxxxx,
Oklahoma 74121-2027, Attention: Xxxxxx X. Xxxxxxx, or (ii) if to you, care of
Xxxxxxx Xxxxx Barney Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Alliance Parties, their directors and officers, and
the other controlling persons referred to in Section 7 hereof and their
respective successors and assigns, to the extent provided herein, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Underwriter of any of the
Units in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement
among the Alliance Parties and the Underwriters.
Very truly yours,
Alliance Resource Partners, L.P.
By: Alliance Resource GP, LLC
its General Partner
By:
----------------------------------
Name:
Title:
Alliance Operating Partners, L.P.
By:
----------------------------------
Name:
Title:
MAPCO Coal, LLC
By:
----------------------------------
Name:
Title:
MC Mining, LLC
By:
----------------------------------
Name:
Title:
Alliance Resource GP, LLC
By: Alliance Coal Corporation
its Sole Member
By:
----------------------------------
Name:
Title:
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Alliance Coal Corporation
By:
----------------------------------
Name:
Title:
Confirmed as of the date first
above mentioned on behalf of
the Underwriters named in Schedule I
hereto.
XXXXXXX XXXXX XXXXXX INC.
XXXXXX XXXXXXX & CO. INCORPORATED
X.X. XXXXXXX & SONS, INC.
XXXXXX BROTHERS INC.
By: XXXXXXX XXXXX BARNEY INC.
By:
-------------------------------
Managing Director
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SCHEDULE I
Alliance Resource Partners, L.P.
Number of Firm Units
Underwriter to be Purchased
----------- --------------------
Xxxxxxx Xxxxx Xxxxxx Inc. .................................
Xxxxxx Xxxxxxx & Co. Incorporated...........................
X. X. Xxxxxxx & Sons, Inc...................................
Xxxxxx Brothers Inc.........................................
-----------
Total [9,123,311]
=========
46
EXHIBIT A
Entity Jurisdiction in which registered or qualified
------ ---------------------------------------------
Alliance Resource Partners, L.P. Oklahoma
MAPCO Coal, LLC Indiana, Illinois, Kentucky, Maryland, West Virginia
MC Mining, LLC Kentucky
Alliance Resources GP, LLC Indiana, Illinois, Kentucky, Maryland, West Virginia,
Oklahoma
Alliance Operating Partners, LP Indiana, Illinois, Kentucky, Maryland, West Virginia,
Oklahoma
Alliance Coal Corporation Indiana, Illinois, Kentucky, Maryland, West Virginia,
Oklahoma
Xxxxxxx County Coal LLC Kentucky
Excel Mining LLC Kentucky
Xxxxxx County Coal LLC Kentucky
Pontiki Coal LLC Kentucky
MAPCO Land & Development LLC Indiana, Illinois, Kentucky, Maryland, West Virginia
Backbone Mountain LLC Maryland, West Virginia
White County Coal LLC Illinois
Mt. Xxxxxx Transfer Terminal LLC Indiana
Xxxxxxx County Coal LLC Kentucky
Mettiki Coal LLC Maryland, West Virginia
Mettiki Coal (West Virginia) LLC Maryland, West Virginia
MLDC LLC Indiana, Illinois, Kentucky, Maryland, West Virginia
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EXHIBIT B
[Letterhead of officer, director or holder of Common Units or
Subordinated Units]
Alliance Resource Partners, L.P.
Public Offering of Common Units
-------------------------------
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
X. X. Xxxxxxx & Sons, Inc.
Xxxxxx Brothers, Inc.
c/o Xxxxxxx Xxxxx Barney, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") among Alliance Resource
Partners, L.P., a Delaware limited partnership (the "Partnership"), Alliance
Operating Partnership, L.P., MAPCO Coal, LLC, MC Mining, LLC, Alliance Resource
GP, LLC, Alliance Coal Corporation, Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxx Xxxxxxx &
Co. Incorporated, X. X. Xxxxxxx & Sons, Inc. and Xxxxxx Brothers Inc., relating
to an underwritten public offering of common units representing limited partner
interests (the "Common Units") of the Partnership.
To induce you to enter into the Underwriting Agreement, the undersigned
agrees that it will not, for a period of 180 days after the date of the
Prospectus (as defined in the Underwriting Agreement) without the prior written
consent of Xxxxxxx Xxxxx Barney Inc., dispose of or hedge any Common Units or
Subordinated Units (as defined in the Underwriting Agreement), any securities
convertible into or exchangeable for, or that represent a right to receive,
Common Units or Subordinated Units or any securities that are senior to or on a
parity with Common Units, or grant any options or warrants to purchase Common
Units or Subordinated Units, other than the grant of Unit Options (as defined in
the Underwriting Agreement) or Restricted Units (as defined in the Underwriting
Agreement) pursuant to the Alliance Resource GP, LLC 1999 Long-Term Incentive
Plan and other than the redemption of Subordinated Units upon exercise of the
underwriters' over-allotment option.
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If for any reason the Underwriting Agreement is terminated before the
Closing Date (as defined in the Underwriting Agreement), the agreement set forth
above shall likewise be terminated.
Yours very truly,
[Signature of officer, director or common Unitholder]
[Name and address of officer, director or common
Unitholder]
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