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EXHIBIT 10.3
CONTRIBUTION AND ASSUMPTION AGREEMENT
THIS CONTRIBUTION AND ASSUMPTION AGREEMENT dated as of August
________, 1999 (this "Agreement"), is entered into by and among ALLIANCE
RESOURCE HOLDINGS, INC., a Delaware corporation (formerly known as Alliance
Coal Corporation) ("Alliance Holdings"); ALLIANCE RESOURCE MANAGEMENT GP, LLC,
a Delaware limited liability company ("MGP"); ALLIANCE RESOURCE GP, LLC, a
Delaware limited liability company ("SGP"); ALLIANCE RESOURCE PARTNERS, L.P., a
Delaware limited partnership (the "Partnership"); ALLIANCE RESOURCE OPERATING
PARTNERS, L.P., a Delaware limited partnership (the "Operating
Partnership"); ALLIANCE COAL, LLC, a Delaware limited liability company
("Alliance Coal"); MC MINING, LLC, a Delaware limited liability company ("MC
Mining"); XXXXXX COUNTY COAL, LLC, a Delaware limited liability company
("Xxxxxx County"); TOPTIKI COAL, LLC, a Delaware limited liability company
("Toptiki Coal"); PONTIKI COAL, LLC, a Delaware limited liability company
("Pontiki Coal"); ALLIANCE PROPERTIES, LLC, a Delaware limited liability
company ("Alliance Properties"); BACKBONE MOUNTAIN, LLC, a Delaware limited
liability company ("Backbone Mountain"); WHITE COUNTY COAL, LLC, a Delaware
limited liability company ("White County"); MT. XXXXXX TRANSFER TERMINAL, LLC,
a Delaware limited liability company ("Mt. Xxxxxx"); XXXXXXX COUNTY COAL, LLC,
a Delaware limited liability company ("Xxxxxxx County"); METTIKI COAL, LLC, a
Delaware limited liability company ("Mettiki Coal"); METTIKI COAL (WV), LLC, a
Delaware limited liability company ("MCWV"); ALLIANCE LAND, LLC, a Delaware
limited liability company ("Alliance Land"); XXXXXXX COUNTY COAL, LLC, a
Delaware limited liability
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company ("Xxxxxxx County"); and EXCEL MINING, LLC, a Delaware limited liability
company ("Excel Mining") (MC Mining, Xxxxxx County, Toptiki Coal, Pontiki Coal,
Alliance Properties, Backbone Mountain, White County, Mt. Xxxxxx, Xxxxxxx
County, Mettiki Coal, MCWV, Alliance Land, Xxxxxxx County and Excel Mining are
sometimes collectively referred to in this Agreement as the "Alliance Coal
Subsidiaries")
RECITALS
WHEREAS, SGP and Xxxxxx X. Xxxxxxx (the "Organizational Limited
Partner") have heretofore formed the Partnership pursuant to the Delaware
Revised Uniform Limited Partnership (the "Delaware Act") for the purpose of
serving as a limited partner of the Operating Partnership; and
WHEREAS, SGP contributed $10.00 to the capital of the Partnership and
received a 1% general partner interest therein, and the Organizational Limited
Partner contributed $990.00 to the capital of the Partnership and received a
99% limited partner interest therein; and
WHEREAS, SGP and the Organizational Limited Partner have heretofore
formed the Operating Partnership pursuant to the Delaware Act for the purpose
of acquiring membership interests in Alliance Coal; and
WHEREAS, SGP contributed $10.00 to the capital of the Operating
Partnership and received a 1% general partner interest therein, and the
Organizational Limited Partner contributed $990.00 to the capital of the
Operating Partnership and received a 99% limited partner interest therein; and
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WHEREAS, Alliance Holdings has formed and owns all of the membership
interest in Alliance Coal; and
WHEREAS, the Initial Transactions have occurred; and
WHEREAS, SGP has entered into a note purchase agreement (the "Note
Purchase Agreement") with certain institutional investors providing for the
issuance by SGP of $180 million of ___% senior notes due 2014; and
WHEREAS, SGP has entered into a bank credit agreement (the "Bank
Credit Agreement") providing for a term loan facility of up to $50 million, a
$25 million working capital facility and a $25 million revolving credit
facility; and
WHEREAS, concurrently with the consummation of the transactions
contemplated by this Agreement, MGP, SGP and the Partnership have entered into
that certain First Amended and Restated Agreement of Limited Partnership of the
Operating Partnership (the "Operating Partnership Agreement"); and
WHEREAS, concurrently with the consummation of the transactions
contemplated by this Agreement, MGP, SGP and the Organizational Limited Partner
have entered into that certain First Amended and Restated Agreement of Limited
Partnership of the Partnership (the "Partnership Agreement");
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the parties to this Agreement undertake and agree as
follows:
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ARTICLE I
DEFINITIONS; INITIAL TRANSACTIONS
1.1 Definitions. The following capitalized terms shall have the meanings
given below.
"Agreement" means this Contribution and Assumption Agreement.
"Alliance Coal" has the meaning assigned to such term in the opening
paragraph of this Agreement.
"Alliance Coal Subsidiaries" has the meaning assigned to such term in
the opening paragraph of this Agreement.
"Alliance Entities" means MGP, SGP, the Partnership, the Operating
Partnership, Alliance Coal and the Alliance Coal Subsidiaries.
"Alliance Holdings" has the meaning assigned to such term in the
opening paragraph of this Agreement.
"Alliance Land" has the meaning assigned to such term in the opening
paragraph of this Agreement.
"Alliance Properties" has the meaning assigned to such term in the
opening paragraph of this Agreement.
"Backbone Mountain" has the meaning assigned to such term in the
opening paragraph of this Agreement.
"Bank Credit Agreement" has the meaning assigned to such term in the
Recitals to this Agreement.
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"Common Units" means common limited partner interests in the
Partnership.
"Delaware Act" has the meaning assigned to such term in the Recitals
to this Agreement.
"Effective Time" means 12:01 a.m. Eastern Standard Time on August __,
1999.
"Environmental Laws" shall mean any federal, state and local law,
rule, regulation or enforceable order, as in effect as of the date of this
Agreement, that regulates or imposes liability with respect to the health,
environment, ecology or work place.
"Excel Mining" has the meaning assigned to such term in the opening
paragraph of this Agreement.
"Existing Indebtedness" means indebtedness, liabilities and
obligations of SGP under (i) the Note Purchase Agreement and (ii) the Bank
Credit Agreement.
"Xxxxxx County" has the meaning assigned to such term in the opening
paragraph of this Agreement.
"Hazardous Materials" shall mean those materials in any way regulated
by any Environmental Law.
"Xxxxxxx County" has the meaning assigned to such term in the opening
paragraph of this Agreement.
"Initial Transactions" has the meaning assigned to such term in
Section 1.2.
"Laws" means any and all laws, statutes, ordinances, rules or
regulations promulgated by a governmental authority, orders of a governmental
authority, judicial decisions, decisions of arbitrators or determinations of
any governmental authority or court.
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"Liabilities" means obligations, responsibilities and liabilities
(whether based in common law or statute or arising under written contract or
otherwise, known or unknown, fixed or contingent, real or potential, tangible
or intangible, now existing or hereafter arising), including, without
limitation, liabilities for violations of Environmental Laws and the disposal,
release, spill, leakage, migration or transportation of Hazardous Materials.
"MC Mining" has the meaning assigned to such term in the opening
paragraph of this Agreement.
"MCWV" has the meaning assigned to such term in the opening paragraph
of this Agreement.
"Mettiki Coal" has the meaning assigned to such term in the opening
paragraph of this Agreement.
"MGP" has the meaning assigned to such term in the opening paragraph
of this Agreement.
"Mt. Xxxxxx" has the meaning assigned to such term in the opening
paragraph of this Agreement.
"Note Purchase Agreement" has the meaning assigned to such term in
the Recitals to this Agreement.
"Operating Partnership" has the meaning assigned to such term in the
opening paragraph of this Agreement.
"Operating Partnership Agreement" has the meaning assigned to such
term in the Recitals to this Agreement.
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"Organizational Limited Partner" has the meaning assigned to such
term in the Recitals to this Agreement.
"Partnership" has the meaning assigned to such term in the opening
paragraph of this Agreement.
"Partnership Agreement" has the meaning assigned to such term in the
Recitals to this Agreement.
"Pontiki Coal" has the meaning assigned to such term in the opening
paragraph of this Agreement.
"Retained Liabilities" means (i) all Liabilities related to the
assets and businesses of Alliance Holdings and its affiliates that are either
retained by Alliance Holdings and its affiliates (other than the Alliance
Entities) after the Effective Time [or that were disposed of by Alliance
Holdings or any of its affiliates or predecessors prior to the Effective Time]
and (ii) all federal, state and local income tax liabilities attributable to
operation of the assets and business of Alliance Holdings and its affiliates
prior to the Effective Time, including any such income tax liabilities that may
result from the consummation of the transactions contemplated by this
Agreement.
"SGP" has the meaning assigned to such term in the opening paragraph
of this Agreement.
"SGP OLP Interest" has the meaning assigned to such term in Section
2.1.
"Subordinated Units" means subordinated limited partner interests in
the Partnership.
"Xxxxxxx County" has the meaning assigned to such term in the opening
paragraph of this Agreement.
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"White County" has the meaning assigned to such term in the opening
paragraph of this Agreement.
1.2 Initial Transactions. The following transactions have occurred prior
to the date hereof (the "Initial Transactions"):
(a) REP Sales Inc. merged into MAPCO Coal Inc.
[(b) Permac Inc., Raven Coal Company, Inc., Race Fork Coal
Corporation and South Atlantic Coal Company, Inc. merged into South Atlantic
Coal LLC.]
(c) Scotts Branch Company and MC Mining, Inc. merged into MC Mining.
(d) Alliance Coal Corporation contributed its 100% member interest in
MC Mining to MAPCO Coal Inc.
(e) Xxxxx County Coal Corporation and Xxxxxx County Coal Corporation
merged into Xxxxxx County.
(f) Toptiki Coal Corporation merged into Toptiki Coal.
(g) Pontiki Coal Corporation merged into Pontiki Coal.
(h) MAPCO Coal Land Corporation and MAPCO Coal Land & Development
Corporation merged into Alliance Properties.
[(i) Xxxx International Mining Corporation was liquidated.]
(j) Xxxxxxx County Coal Corporation merged into Backbone Mountain.
(k) White County Coal Corporation merged into White County.
(l) Mt. Xxxxxx Coal Transfer Company merged into Mt. Xxxxxx.
(m) Xxxxxxx County Coal Corporation merged into Xxxxxxx County.
(n) Mettiki Coal Corporation merged into Mettiki Coal.
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(o) Mettiki Coal Corporation (West Virginia) merged into MCWV.
(p) MLDC Corporation merged into Alliance Land.
(q) Alliance Power Corporation merged into Alliance Power, LLC.
(r) MAPCO Coal International was dissolved.
(s) MAPCO Coal Inc. merged into Alliance Coal.
(t) Alliance Coal distributed the stock of South Atlantic Coal, LLC
to Alliance Coal Corporation.
(u) Alliance Coal Corporation changed its name to Alliance Resource
Holdings, Inc.
1.3. Concurrent Transactions.
(a) Alliance Holdings has previously formed SGP and Alliance Holdings
hereby contributes all of the member interests in Alliance Coal to SGP in
exchange for all of the member interests in SGP.
(b) SGP and the Operating Partnership agree that upon completion of
the public offering by the Partnership as set forth in Section 2.1 below, SGP
will contribute its 100% interest in Alliance Coal to the Operating Partnership
in exchange for certain partnership interests, debt assumption and cash as more
fully set forth below, and SGP will contribute its limited partner interest in
the Operating Partnership to the Partnership in exchange for Partnership
interests as more fully set forth below.
[(c) Certain members of Alliance Holdings management and certain
funds affiliated with The Beacon Group, LP purchase all the member interests in
MGP for [$6.3 million]].
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(d) The Subsidiaries distribute [$___ million of] working capital
assets to Alliance Coal and Alliance Coal distributes such working capital
assets to SGP.
(e) SGP borrows $180 million under the Note Purchase Agreement and
[$48.6 million] under the term loan facility of the Bank Credit Agreement.
ARTICLE II
PUBLIC OFFERING AND CASH CONTRIBUTIONS
2.1 Public Cash Contribution. The parties to this Agreement acknowledge a
cash contribution to the Partnership of [$179.4 million] from the public in
exchange for [8,969,335] Common Units.
2.2 MGP Cash Contribution to Partnership. MGP hereby contributes [$3.1
million] in cash to the Partnership in exchange for a .99% managing general
partner interest and incentive distribution rights in the Partnership and the
Partnership hereby accepts such cash contribution as a contribution to the
capital of the Partnership.
2.3 Partnership Cash Contribution. The Partnership hereby contributes cash
in the amount of [$179.4 million] to the Operating Partnership in exchange for
a limited partner interest in the Operating Partnership and the Operating
Partnership hereby accepts such cash contribution as a contribution to the
capital of the Operating Partnership.
2.4 MGP Cash Contribution to Operating Partnership. MGP hereby contributes
$3.1 million in cash to the Operating Partnership in exchange for a 1.0001%
managing general partner interest in the Operating Partnership and the
Operating Partnership hereby accepts such cash contribution as a contribution
to the capital of the Operating Partnership.
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ARTICLE III
ADDITIONAL CLOSING TRANSACTIONS
3.1 Contribution by SGP to the Operating Partnership. SGP hereby
contributes to the Operating Partnership a 100% member interest in Alliance
Coal in exchange for (a) a .01% special general partner interest in the
Operating Partnership, (b) a limited partner interest (such limited partner
interest, the "SGP OLP Interest") in the Operating Partnership and (c) the
assumption by the Operating Partnership of the indebtedness, liabilities and
obligations of SGP under the Existing Indebtedness, and the Operating
Partnership hereby accepts such interests from SGP, as a contribution to the
capital of the Operating Partnership.
3.2 Contribution by SGP to the Partnership. SGP hereby contributes to the
Partnership the SGP OLP Interest in exchange for (a) a .01% special general
partner interest in the Partnership and (b) [6,413,075] Subordinated Units and
the Partnership hereby accepts the SGP OLP Interest as a contribution to the
capital of the Partnership.
3.3 Operating Partnership Use of Proceeds. The parties to this Agreement
acknowledge that the Operating Partnership has used the cash received as set
forth in Article II above as follows: (a) reimbursement to SGP for certain
capital expenditures in the amount of [$81.1 million]; (b) payment of certain
transaction expenses in the aggregate amount of [$19.4 million] including,
without limitation, all of the syndication costs incurred by the Partnership in
connection with the public offering of the Common Units; (c) distribution of
cash in the aggregate amount of [$36.5 million] to Alliance Coal to replenish
the working capital previously distributed by Alliance Coal to SGP; and (d)
purchase of U.S. treasury notes in the aggregate amount of [$48.6 million]
which
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have been collaterally assigned by the Operating Partnership to the lenders
under the Bank Credit Agreement.
3.4 Alliance Coal Cash Contribution to Alliance Coal Subsidiaries.
Alliance Coal hereby distributes cash to the Alliance Coal Subsidiaries in an
amount sufficient to replenish the working capital of such Alliance Coal
Subsidiaries.
3.5 MGP Contribution to Alliance Coal. MGP hereby contributes to Alliance
Coal [$3,139] in cash in exchange for a .001% managing member interest in
Alliance Coal and Alliance Coal hereby accepts such cash contribution as a
contribution to the capital of Alliance Coal.
3.6 SGP Distribution to Alliance Holdings. SGP hereby distributes [$314.2
million] to Alliance Holdings.
ARTICLE IV
ASSUMPTION OF EXISTING INDEBTEDNESS
4.1. Assumption of Existing Indebtedness by the Operating Partnership. In
connection with the transactions contemplated by Section 3.1 hereof, the
Operating Partnership hereby assumes and agrees to duly and timely pay, perform
and discharge the Existing Indebtedness, to the full extent that SGP has been
heretofore or would have been in the future, were it not for the execution and
delivery of this Agreement, obligated to pay, perform and discharge the
Existing Indebtedness; provided, however, that said assumption and agreement to
duly and timely pay, perform and discharge the Existing Indebtedness shall not
(i) increase the obligation of the Operating Partnership with respect to the
Existing Indebtedness beyond that of SGP, (ii) waive any valid defense that was
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available to SGP with respect to the Existing Indebtedness or (iii) enlarge any
rights or remedies of any lender under, or holder of, the Existing Indebtedness
or any portion thereof.
ARTICLE V
INDEMNIFICATION
5.1. Indemnification With Respect to Existing Indebtedness. The Operating
Partnership shall indemnify, defend and hold harmless SGP, its officers and
directors, its successors and assigns from and against any and all claims,
demands, costs, Liabilities and expenses (including court costs and reasonable
attorneys' fees) of every kind, character and description, arising from or
relating to the Existing Indebtedness.
5.2 Indemnification with Respect to Retained Liabilities. Alliance
Holdings shall indemnify, defend and hold harmless the Alliance Entities, their
respective officers and directors and their respective successors and assigns
from and against any and all claims, demands, costs, Liabilities (including,
without limitation, Liabilities arising by way of active and passive
negligence) and expenses (including court costs and reasonable attorneys' fees)
of every kind, character and description, whether known or unknown, accrued or
contingent, and whether or not reflected on the books and records of Alliance
Holdings as of the Effective Time, arising from or relating to the Retained
Liabilities.
ARTICLE VI
FURTHER ASSURANCES
6.1. Further Assurances. From time to time after the date hereof, and
without any further consideration, each party upon request from another shall
execute, acknowledge and deliver all such additional instruments, notices and
other documents, and will do all such other acts and things, all
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in accordance with applicable law, as may be reasonably necessary or
appropriate to more fully and effectively carry out the purposes and intent of
this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1. Order of Completion of Transactions; Effective Time. The transactions
provided for in Articles I, II, III and IV of this Agreement shall be completed
on the date of this Agreement in the following order:
First, the transactions provided for in Article I shall be
completed; Second, the transactions provided for in Article
II shall be completed; Third, the transactions provided for
in Article III shall be completed; and Fourth, the
transactions provided for in Article IV shall be completed.
7.2. Costs. The Operating Partnership shall pay all sales, use and similar
taxes arising out of the contributions and deliveries to be made hereunder, and
shall pay all documentary, filing, recording, transfer, deed, and conveyance
taxes and fees required in connection therewith, if any.
7.3. Headings: References: Interpretation. All Article and Section
headings in this Agreement are for convenience only and shall not be deemed to
control or affect the meaning or construction of any of the provisions hereof.
The words "hereof," "herein" and "hereunder" and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole, including,
without limitation, all Schedules and Exhibits attached hereto, and not to any
particular provision of this Agreement. All references herein to Articles,
Sections, Schedules and Exhibits, if any, shall, unless the context requires a
different construction, be deemed to be references to the Articles and Sections
of this Agreement and the Schedules and Exhibits attached hereto, and all such
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Schedules and Exhibits attached hereto are hereby incorporated herein and made
a part hereof for all purposes. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders, and the singular shall include the plural and vice versa. The
use herein of the word "including" following any general statement, term or
matter shall not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or to
similar items or matters, whether or not non-limiting language (such as
"without limitation," "but not limited to," or words of similar import) is used
with reference thereto, but rather shall be deemed to refer to all other items
or matters that could reasonably fall within the broadest possible scope of
such general statement, term or matter.
7.4. Successors and Assigns. The Agreement shall be binding upon and inure
to the benefit of the parties signatory hereto and their respective successors
and assigns.
7.5. No Third Party Rights. The provisions of this Agreement are intended
to bind the parties signatory hereto as to each other and are not intended to
and do not create rights in any other person or confer upon any other person
any benefits, rights or remedies and no person is or is intended to be a third
party beneficiary of any of the provisions of this Agreement.
7.6. Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
7.7. Governing Law. 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 wholly within such state without giving effect to conflict
of law principles thereof.
7.8. Severability. If any of the provisions of this Agreement are held by
any court of competent jurisdiction to contravene, or to be invalid under, the
laws of any political body having
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jurisdiction over the subject matter hereof, such contravention or invalidity
shall not invalidate the entire Agreement. Instead, this Agreement shall be
construed as if it did not contain the particular provision or provisions held
to be invalid, and an equitable adjustment shall be made and necessary
provision added so as to give effect to the intention of the parties as
expressed in this Agreement at the time of execution of this Agreement.
7.9. Amendment or Modification. This Agreement may be amended or modified
from time to time only by the written agreement of all the parties hereto.
7.10 Integration. This Agreement supersedes all previous understandings or
agreements between the parties, whether oral or written, with respect to its
subject matter. This document is an integrated agreement which contains the
entire understanding of the parties. No understanding, representation, promise
or agreement, whether oral or written, is intended to be or shall be included
in or form part of this Agreement unless it is contained in a written amendment
hereto executed by the parties hereto after the date of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first above written.
ALLIANCE RESOURCE HOLDINGS, INC.,
a Delaware corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
ALLIANCE RESOURCE MANAGEMENT GP,
LLC, a Delaware limited liability company
By:
----------------------------------------
Name:
--------------------------------------
Title:
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ALLIANCE RESOURCE GP, LLC,
a Delaware limited liability company
By:
----------------------------------------
Name:
--------------------------------------
Title:
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ALLIANCE RESOURCE PARTNERS, L.P.
a Delaware limited partnership
By: Alliance Resource GP, LLC,
its general partner
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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ALLIANCE RESOURCE OPERATING
PARTNERS, L.P., a Delaware limited partnership
By: Alliance Resource GP, LLC,
its general partner
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ALLIANCE COAL, LLC,
a Delaware limited liability company
By:
------------------------------------------
Name:
----------------------------------------
Title:
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MC MINING, LLC,
a Delaware limited liability company
By:
------------------------------------------
Name:
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Title:
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XXXXXX COUNTY COAL, LLC,
a Delaware limited liability company
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
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TOPTIKI COAL, LLC
a Delaware limited liability company
By:
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Name:
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Title:
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PONTIKI COAL, LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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ALLIANCE PROPERTIES, LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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BACKBONE MOUNTAIN, LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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WHITE COUNTY COAL, LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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MT. XXXXXX TRANSFER TERMINAL, LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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XXXXXXX COUNTY COAL, LLC,
a Delaware limited liability company
By:
----------------------------------------
Name:
--------------------------------------
Title:
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METTIKI COAL, LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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METTIKI COAL (WV), LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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ALLIANCE LAND, LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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XXXXXXX COUNTY COAL, LLC,
a Delaware limited liability company
By:
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Name:
--------------------------------------
Title:
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EXCEL MINING, LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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