Exhibit 1.1
Execution Version
8,750,000 Common Units
OXFORD RESOURCE PARTNERS, LP
Representing Limited Partner Interests
UNDERWRITING AGREEMENT
July 13, 2010
Barclays Capital Inc.
Citigroup Global Markets Inc.,
As Representatives of the several
Underwriters named in Schedule 1 attached hereto
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Oxford Resource Partners, LP, a Delaware limited partnership (the “
Partnership
”), proposes to
sell to the underwriters (the “
Underwriters
”) named in
Schedule 1
attached to this
agreement (this “
Agreement
”) 8,750,000 common units (the “
Firm Units
”) representing limited partner
interests in the Partnership (“
Common Units
”). In addition, the Partnership proposes to grant to
the Underwriters an option to purchase up to 1,312,500 additional Common Units on the terms set
forth in Section 2 hereof (the “
Option Units
”). The Firm Units and the Option Units, if purchased,
are hereinafter collectively called the “
Units
.”
This is to confirm the agreement among the Partnership, Oxford Resources GP, LLC, a Delaware
limited liability company and the general partner of the Partnership (the “
General Partner
”), and
Oxford Mining Company, LLC, an Ohio limited liability company and a wholly owned subsidiary of the
Partnership (the “
Operating Company
” and, together with the Partnership and the General Partner,
the “
Partnership Parties
”), concerning the purchase of the Units from the Partnership by the
Underwriters.
On the Initial Delivery Date (as defined in Section 4 hereof), immediately prior to the
closing of the offering of the Firm Units:
(a) the Partnership will distribute the right to receive cash in the amount of $21.0 million
to be collected from accounts receivable outstanding as of June 15, 2010 to the
General Partner,
C&T Coal, Inc., an Ohio corporation (“
C&T Coal
”), AIM Oxford Holdings, LLC, a Delaware limited
liability company (“
AIM Oxford
”) and the participants in the Oxford Resource Partners, LP Amended
and Restated Long-Term Incentive Plan that hold the Partnership’s common units at that time (the
“
LTIP Participants
”), pro rata, in accordance with their respective interests in the Partnership;
(b) each general partner unit held by the General Partner will automatically split into
1.82general partner units, with the result that the General Partner will be the record holder of an
aggregate of 244,607 general partner units, representing a 2.0% general partner interest in the
Partnership;
(c) each Class A common unit held by an LTIP Participant will automatically split into 1.82
Class A common units, with the result that the LTIP Participants will be the record holder of an
aggregate of 126,565 Class A common units, representing an aggregate 1.0% limited partner interest
in the Partnership;
(d) each Class B common unit held by C&T Coal will automatically split into 1.82 Class B
common units, with the result that C&T Coal will be the record holder of an aggregate of 3,999,696
Class B common units, representing an aggregate 32.7% limited partner interest in the Partnership;
and
(e) each Class B common unit held by AIM Oxford will automatically split into 1.82 Class B
common units, with the result that AIM Oxford will be the record holder of an aggregate of
7,859,487 Class B common units, representing an aggregate 64.3% limited partner interest in the
Partnership.
The transactions contemplated in clauses (a) through (e) above are referred to herein as the
“
Pre-Closing Transactions
.”
Upon the closing of the offering of the Firm Units:
(a) all of the Class B common units held by C&T Coal will automatically convert into (i)
532,476 Common Units, representing a 2.5% limited partner interest in the Partnership, and (ii)
3,467,220 subordinated units representing limited partner interests in the Partnership
(“
Subordinated Units
”), representing a 16.5% limited partner interest in the Partnership;
(b) all of the Class B common units held by AIM Oxford will automatically convert into (i)
1,046,327 Common Units, representing a 5.0% limited partner interest in the Partnership, and (ii)
6,813,160 Subordinated Units, representing a 32.5% limited partner interest in the Partnership;
(c) C&T Coal and AIM Oxford will contribute 59,022 Common Units and 115,978 Common Units,
respectively, to the General Partner as a capital contribution;
(d) the General Partner will contribute the 175,000 Common Units contributed to it by C&T Coal
and AIM Oxford to the Partnership in exchange for 175,000 general partner units in order to
maintain its 2.0% general partner interest in the Partnership;
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(e) the Third Amended and Restated Agreement of Limited Partnership of the Partnership (as the
same may be amended and restated on or prior to each Delivery Date, the “
Partnership Agreement
”),
will take effect, pursuant to which, among other things, the Class A common units will be
re-designated as Common Units;
(f) the Credit Agreement, dated July 6, 2010 (the “
Credit Agreement
”), by and among the
Operating Company, as borrower, and the lenders named therein shall have closed; and
(g) the Partnership will use the net proceeds from the offering of the Firm Units
and concurrent borrowings under the Credit Agreement as described under the heading “Use of
Proceeds” in the most recent Preliminary Prospectus (as defined below), including without
limitation, to purchase certain equipment pursuant to the lease termination and equipment purchase
letter agreements listed on Schedule 4 hereto, as amended (the “Lease Buyout Agreements”),
previously entered into by the Partnership and the Operating Company and the lessors named therein.
The transactions contemplated in clauses (a) through (e) above are referred to herein as the
“
Concurrent Transactions
” and, together with the Pre-Closing Transactions, are referred to herein
as the “
Transactions
.”
The Partnership, the General Partner, the Operating Company, Harrison Resources, LLC, an Ohio
limited liability company (“
Harrison Resources
”), Oxford Mining Company — Kentucky, LLC, a Kentucky
limited liability company (“
Oxford Kentucky
”), and Daron Coal Company, LLC, an Ohio limited
liability company (“
Daron
”), are referred to collectively herein as the “
Oxford Entities
.” The
Operating Company, Harrison Resources, Oxford Kentucky and Daron are referred to collectively
herein as the “
Subsidiaries
.”
1.
Representations, Warranties and Agreements of the Partnership Parties
. The Partnership
Parties jointly and severally represent, warrant and agree that:
(a)
Registration; Definitions; No Stop Order
. A registration statement (Registration
No. 333-165662) on Form S-1 relating to the Units has (i) been prepared by the Partnership
in conformity with the requirements of the Securities Act of 1933, as amended (the
“
Securities Act
”), and the rules and regulations (the “
Rules and Regulations
”) of the
Securities and Exchange Commission (the “
Commission
”) thereunder; (ii) been filed with the
Commission under the Securities Act; and (iii) become effective under the Securities Act.
Copies of such registration statement and any amendment thereto have been delivered by the
Partnership to you as the representatives (the “
Representatives
”) of the Underwriters. As
used in this Agreement:
(i) “
Applicable Time
” means 4:30 p.m. (New York City time) on July 13, 2010;
(ii) “
Effective Date
” means the date and time as of which the Registration
Statement was declared effective by the Commission;
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(iii) “
Issuer Free Writing Prospectus
” means each “free writing prospectus” (as
defined in Rule 405 of the Rules and Regulations) prepared by or on behalf of the
Partnership or used or referred to by the Partnership in connection with the
offering of the Units;
(iv) “
Preliminary Prospectus
” means any preliminary prospectus relating to the
Units included in the Registration Statement or filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations;
(v) “
Pricing Disclosure Package
” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with the information included in
Schedule 3
hereto, and each Issuer Free Writing Prospectus filed with the
Commission or used by the Partnership on or before the Applicable Time, other than a
road show that is an Issuer Free Writing Prospectus but is not required to be filed
under Rule 433 of the Rules and Regulations;
(vi) “
Prospectus
” means the final prospectus relating to the Units, as filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(vii) “
Registration Statement
” means the registration statement on Form S-1
(Registration No. 333-165662) relating to the Units, as amended as of the Effective
Date, including any Preliminary Prospectus, the Prospectus and all exhibits to such
registration statement.
Any reference to the “
most recent Preliminary Prospectus
” shall be deemed to refer to the
latest Preliminary Prospectus included in the Registration Statement or filed pursuant to
Rule 424(b) of the Rules and Regulations prior to or on the date hereof. The Commission has
not issued any order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding
for such purpose has been instituted or, to the knowledge of the Partnership Parties,
threatened by the Commission.
(b)
Partnership Not an “Ineligible Issuer.”
The Partnership was not at the time of
initial filing of the Registration Statement and at the earliest time thereafter that the
Partnership or another offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2) of the Rules and Regulations) of the Units, is not on the date hereof and
will not be on the applicable Delivery Date (as defined in Section 4 hereof) an “ineligible
issuer” (as defined in Rule 405 of the Rules and Regulations).
(c)
Registration Statement and Prospectus Conform to the Requirements of the Securities
Act.
The Registration Statement conformed and will conform in all material respects on the
Effective Date and on the applicable Delivery Date, and any amendment to the Registration
Statement filed after the date hereof will conform in all material respects when filed, to
the applicable requirements of the Securities Act and the Rules and Regulations. The most
recent Preliminary Prospectus conformed in all material respects on the Effective Date, and
the Prospectus will conform in all material
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respects when filed with the Commission pursuant
to Rule 424(b) and on the applicable Delivery Date, to the requirements of the Securities
Act and the Rules and Regulations.
(d)
No Material Misstatements or Omissions in the Registration Statement.
The
Registration Statement did not, as of the Effective Date, 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;
provided
that no representation or warranty is
made as to information contained in or omitted from the Registration Statement in reliance
upon and in conformity with written information furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(e).
(e)
No Material Misstatements or Omissions in Prospectus.
The Prospectus will not, as
of its date and on the applicable Delivery Date, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided
that no
representation or warranty is made as to information contained in or omitted from the
Prospectus in reliance upon and in conformity with written information furnished to the
Partnership through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section 8(e).
(f)
No Material Misstatements or Omissions in Pricing Disclosure Package.
The Pricing
Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided
that no representation or warranty is made as to information contained in or
omitted from the Pricing Disclosure Package in reliance upon and in conformity with written
information furnished to the Partnership through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, which information is specified in Section
8(e).
(g)
No Material Misstatements or Omissions in Issuer Free Writing Prospectuses.
Each
Issuer Free Writing Prospectus (including, without limitation, any road show that is a free
writing prospectus under Rule 433 of the Rules and Regulations), when considered together
with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading;
provided
that no representation or warranty is made as to information contained
in or omitted from each Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Partnership through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein, which information is specified
in Section 8(e).
(h)
Issuer Free Writing Prospectuses Conform to the Requirements of the Securities Act.
Each Issuer Free Writing Prospectus conformed or will conform in all material respects to
the requirements of the Securities Act and the Rules and Regulations
5
on the date of first
use, and the Partnership has complied with any filing requirements applicable to such Issuer
Free Writing Prospectus pursuant to the Rules and Regulations. The Partnership has not made
any offer relating to the Units that would constitute an Issuer Free Writing Prospectus
without the prior written consent of the Representatives. The Partnership has retained in
accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were not
required to be filed pursuant to the Rules and Regulations. The Partnership has taken all
actions necessary so that any road show (as defined in Rule 433 of the Rules and
Regulations) in connection with the offering of the Units will not be required to be filed
pursuant to the Rules and Regulations.
(i)
Formation, Qualification and Authority.
Each of the Oxford Entities has been duly
formed and is validly existing and in good standing as a limited partnership or limited
liability company, as the case may be, under the laws of its respective jurisdiction of
formation, with all partnership or limited liability company, as the case may be, power and
authority necessary to be the record holder of or hold its properties and conduct the
businesses in which it is engaged and, in the case of the General Partner, to act as the
general partner of the Partnership, in each case in all material respects as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus. Each of the
Oxford Entities is duly registered or qualified to do business in and is in good standing as
a foreign limited partnership or limited liability company, as applicable, in each
jurisdiction in which its record ownership or leasing of property or the conduct of its
businesses makes such qualification or registration necessary, except where the failure to
be so qualified or registered, individually or in the aggregate, would not reasonably be
expected to have a material adverse effect on the condition (financial or other), results of
operations, net worth, properties, business or prospects of the Partnership and its
Subsidiaries, taken as a whole (a “
Material Adverse Effect
”).
(j)
Ownership of the General Partner.
Subject to the last sentence of this Section
1(j), C&T Coal and AIM Oxford are the record holders of 33.7% and 66.3%, respectively, of
the issued and outstanding membership interests in the General Partner; such membership
interests have been duly authorized and validly issued in accordance with the Second Amended
and Restated Limited Liability Company Agreement of the General Partner, as amended (or, if
applicable, any predecessor agreement, the “
GP LLC Agreement
”), and are fully paid (to the
extent required under the GP LLC Agreement) and non-assessable (except as such
nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited
Liability Company Act (the “
Delaware LLC Act
”)); and C&T Coal and AIM Oxford are the record
holders of such membership interests free and clear of all liens, encumbrances, security
interests, charges or claims (“
Liens
”), except as disclosed in the Registration Statement,
the Pricing Disclosure Package and the Prospectus. At the Initial Delivery Date, Jeffrey M.
Gutman will receive a 0.5% profits participation interest in the General Partner; such
interest will be duly authorized and validly issued in accordance with the GP LLC Agreement
and will be fully paid (to the extent required under the GP LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Sections 18-607 and 18-804 of the
Delaware LLC Act); and Mr. Gutman will be the record holder of such interest free and clear
of all Liens, except as disclosed in the Pricing Disclosure Package and the Prospectus.
6
(k)
Ownership of the General Partner Interest in the Partnership.
The General Partner is and, after giving effect to the Transactions, at each Delivery
Date will be, the sole general partner of the Partnership with a 2.0% general partner
interest in the Partnership; such general partner interest is duly authorized and validly
issued in accordance with the Partnership Agreement; and the General Partner is the record
holder of such general partner interest free and clear of all Liens.
(l)
Ownership of Sponsor Units.
Assuming no purchase by the Underwriters of Option
Units on the Initial Delivery Date, at the Initial Delivery Date, C&T Coal will be the
record holder of 473,454 Common Units and 3,467,220 Subordinated Units and AIM Oxford will
be the record holder of 930,349 Common Units and 6,813,160 Subordinated Units (collectively,
the “
Sponsor Units
”), the Sponsor Units and the limited partner interests represented
thereby will have been 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 Sections 17-303,
17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the “
Delaware LP
Act
”)), and C&T Coal and AIM Oxford will be the record holders of their respective Sponsor
Units free and clear of all Liens.
(m)
Valid Issuance of Units.
At the Initial Delivery Date or the Option Unit Delivery
Date (as defined in Section 4 hereof), as the case may be, the Firm Units or the Option
Units, as the case may be, and the limited partner interests represented thereby, will be
duly authorized in accordance with the Partnership Agreement and, when issued and delivered
to the Underwriters against payment therefor in accordance with 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 Sections 17-303, 17-607 or
17-804 of the Delaware LP Act).
(n)
Ownership of Incentive Distribution Rights in the Partnership.
The General Partner
is the record holder of all of the incentive distribution rights in the Partnership (the
“
Incentive Distribution Rights
”) and such Incentive Distribution Rights 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 Sections 17-303, 17-607 and
17-804 of the Delaware LP Act); and the General Partner is the record holder of the
Incentive Distribution Rights free and clear of all Liens.
(o)
Capitalization of the Partnership.
Upon the consummation of the Transactions,
other than the Common Units held by the LTIP Participants, the Sponsor Units and the
Incentive Distribution Rights, the Units will be the only limited partner interests of the
Partnership issued and outstanding at each Delivery Date.
(p)
Ownership of the Operating Company.
At each Delivery Date, the Partnership will be
the record holder of 100% of the issued and outstanding membership interests in the
Operating Company; such membership interests have been duly authorized and validly issued in
accordance with the Amended and Restated Operating
7
Agreement of the Operating Company, as
amended (the “
Operating Company Operating Agreement
”), and are fully paid (to the extent
required under the Operating Company Operating Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in Section 1705.23 of the Ohio Limited
Liability Company Law (the “
Ohio LLC Law
”)); and the Partnership will be the record holder
of such membership interests free and clear of all Liens, other than Liens arising under the
Credit Agreement.
(q)
Ownership of Harrison Resources.
At each Delivery Date, the Operating Company will
be the record holder of 51% of the issued and outstanding membership interests in Harrison
Resources; such membership interests have been duly authorized in accordance with the
Amended and Restated Operating Agreement of Harrison Resources, as amended (the “
Harrison
Operating Agreement
”), and are fully paid (to the extent required under the Harrison
Operating Agreement) and nonassessable (except as such nonassessability may be affected by
matters described in Section 1705.23 of the Ohio LLC Law); and the Operating Company will be
the record holder of such membership interests free and clear of all Liens, other than Liens
arising under the Credit Agreement.
(r)
Ownership of Oxford Kentucky.
At each Delivery Date, the Operating Company will be
the record holder of 100% of the issued and outstanding membership interests in Oxford
Kentucky; such membership interests have been duly authorized in accordance with the Amended
and Restated Operating Agreement of Oxford Kentucky (the “
Oxford Kentucky Operating
Agreement
”) and are fully paid (to the extent required under the Oxford Kentucky Operating
Agreement) and nonassessable (except as such nonassessability may be affected by matters
described in the Kentucky Revised Statutes Section 275.230); and the Operating Company will
be the record holder of such membership interests free and clear of all Liens, other than
Liens arising under the Credit Agreement.
(s)
Ownership of Daron.
At each Delivery Date, the Operating Company will be the
record holder of 100% of the issued and outstanding membership interests in Daron; such
membership interests have been duly authorized in accordance with the Operating Agreement of
Daron (the “
Daron Operating Agreement
,” and together with the Operating Company Operating
Agreement, the Harrison Operating Agreement and the Oxford Kentucky Operating Agreement, the
“
Subsidiary Operating Agreements
”) and are fully paid (to the extent required under the
Daron Operating Agreement) and nonassessable (except as such nonassessability may be
affected by matters described in Section 1705.23 of the Ohio LLC Law); and the Operating
Company will be the record holder of such membership interests free and clear of all Liens,
other than Liens arising under the Credit Agreement.
(t)
No Other Subsidiaries.
Other than with respect to the other Oxford Entities, the
General Partner is not the record holder, and at each Delivery Date will not be the record
holder, directly or indirectly, of any equity or long-term debt securities of any
corporation, partnership, limited liability company, joint venture, association or other
entity. Other than with respect to the Subsidiaries, the Partnership is not the record
holder, and at each Delivery Date will not be the record holder, directly or indirectly, of
8
any equity or long-term debt securities of any corporation, partnership, limited liability
company, joint venture, association or other entity. Other than the Operating Company’s
interests as record holder of (i) a 51% membership interest in Harrison Resources, (ii) a
100% membership interest in Oxford Kentucky, and (iii) a 100% membership interest in Daron,
none of the Subsidiaries is a record holder, and at each Delivery Date will not be the
record holder, directly or indirectly, of any equity or long-term debt securities of any
corporation, partnership, limited liability company, joint venture, association or other
entity. Other than the Operating Company and Oxford Kentucky, the Partnership does not
have, and will not have at each Delivery Date, any subsidiaries that would be deemed to be a
“significant subsidiary” of the Partnership (as such term is defined in Section 1-02(w) of
Regulation S-X of the Securities Act).
(u)
No Preemptive Rights, Registration Rights or Options.
Except as identified in the
Pricing Disclosure Package or as set forth in the Partnership Agreement, the GP LLC
Agreement, the Investors’ Rights Agreement dated August 24, 2007 by and among Oxford
Resource Partners, LP, Oxford Resources GP, LLC, AIM Oxford Holdings, LLC, C&T Coal, Inc.,
Charles C. Ungurean and Thomas T. Ungurean (the “
Investors’ Rights Agreement
”), the
unitholder agreements with LTIP Participants or the Subsidiary Operating Agreements, there
are no (i) preemptive rights or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any equity interests in any of the Oxford
Entities or (ii) outstanding options or warrants to purchase any securities of any of the
Oxford Entities. Except for such rights that have been waived or complied with, none of (i)
the filing of the Registration Statement, (ii) the consummation of the transactions
(including the Transactions) contemplated by this Agreement or (iii) 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 Common Units or other securities of any of the Oxford Entities.
(v)
Authority and Authorization.
The Partnership has all requisite limited partnership
power and authority to issue, sell and deliver the Units in accordance with and upon the
terms and conditions set forth in this Agreement and the Partnership Agreement. Each of the
Partnership Parties has all requisite limited partnership or limited liability company power
and authority, as the case may be, to execute and deliver this Agreement and to perform its
respective obligations hereunder. At each Delivery Date, all limited partnership and
limited liability company action, as the case may be, required to be taken by any of the
Oxford Entities or any of their respective unitholders, members or partners for the
authorization, issuance, sale and delivery of the Units and the consummation of the
transactions (including the Transactions) contemplated by this Agreement, shall have been
validly taken.
(w)
Authorization, Execution and Delivery of this Agreement.
This Agreement has been
duly authorized and validly executed and delivered by or on behalf of each of the
Partnership Parties.
(x)
Authorization, Execution, Delivery and Enforceability of Certain Agreements.
On or
before the Initial Delivery Date:
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(i) the GP LLC Agreement will have been duly authorized, executed and delivered
by each of C&T Coal and AIM Oxford and will be a valid and legally binding
agreement, enforceable by and against each of C&T Coal and AIM Oxford in accordance
with its terms;
(ii) the Partnership Agreement will have been duly authorized, executed and
delivered by the General Partner and will be a valid and legally binding agreement
of the partners in the Partnership, enforceable by and against the partners in the
Partnership in accordance with its terms;
(iii) the Operating Company Operating Agreement will have been duly authorized,
executed and delivered by the Partnership and will be a valid and legally binding
agreement, enforceable by and against the Partnership in accordance with its terms;
(iv) the Harrison Operating Agreement will have been duly authorized, executed
and delivered by the Operating Company and will be a valid and legally binding
agreement, enforceable by and against the Operating Company in accordance with its
terms;
(v) the Oxford Kentucky Operating Agreement will have been duly authorized,
executed and delivered by the Operating Company and will be a valid and legally
binding agreement, enforceable by and against the Operating Company in accordance
with its terms;
(vi) the Daron Operating Agreement will have been duly authorized, executed and
delivered by the Operating Company and will be a valid and legally binding
agreement, enforceable by and against the Operating Company in accordance with its
terms;
(vii) the Credit Agreement will have been duly authorized, executed and
delivered by the Oxford Entities that are parties thereto and the other parties
thereto and will be a valid and legally binding agreement, enforceable by and
against the Oxford Entities that are parties thereto in accordance with its terms;
(viii) each of the Lease Buyout Agreements will have been duly authorized, and
where a signatory thereto executed and delivered by the Oxford Entities that are
parties thereto and will be a valid and legally binding agreement, enforceable by
and against the Oxford Entities that are parties thereto in accordance with its
terms; and
(ix) the Administrative and Operational Services Agreement (the “
Administrative
Services Agreement
”), by and among the Partnership, the Operating Company and the
General Partner, will have been duly authorized, executed and delivered by the
parties thereto and will be a valid and legally binding agreement, enforceable by
and against such parties in accordance with its terms;
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provided, however,
that with respect to each agreement described in this Section 1(x), the
enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer or
conveyance, 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 such agreements may be limited by
applicable laws relating to fiduciary duties, public policy and an implied covenant of good faith
and fair dealing.
(y)
No Conflicts
. None of (i) the offering, issuance and sale by the Partnership of
the Units and the application of the proceeds from the sale of the Units as described under
“
Use of Proceeds
” in the Pricing Disclosure Package, (ii) the execution, delivery and
performance of this Agreement by the Partnership Parties, or (iii) the consummation of the
transactions (including the Transactions) contemplated hereby (A) conflicts or will conflict
with or constitutes or will constitute a violation of the agreement of limited partnership,
limited liability company agreement, certificate of formation, articles of organization or
conversion or other constituent document of any of the Oxford Entities, (B) conflicts or
will conflict with or constitutes or will constitute a breach or violation of, or a default
(or an event that, with notice or lapse of time or both, would constitute such a default)
under any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which any of the Oxford Entities is a party or by which any of them or any of
their respective properties may be bound, (C) 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 Oxford Entities or any of their properties in a proceeding to
which any of them or their property is a party or (D) results or will result in the creation
or imposition of any Lien upon any property or assets of any of the Oxford Entities, which
conflicts, breaches, violations, defaults or Liens, in the case of clauses (B), (C) or (D)
would, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect or materially impair the ability of any of the Oxford Entities to consummate the
transactions (including the Transactions) contemplated under this Agreement.
(z)
No Consents.
No permit, consent, approval, authorization, order, registration,
filing or qualification of or with any court or governmental agency or body having
jurisdiction over any of the Oxford Entities or any of their properties or assets is
required in connection with (i) the offering, issuance or sale by the Partnership of the
Units, (ii) the application of the proceeds therefrom as described under “Use of Proceeds”
in the Pricing Disclosure Package, (iii) the execution and delivery of this Agreement by the
Partnership Parties or (iv) consummation of the transactions (including the Transactions)
contemplated hereby, except for (x) consents, approvals and similar authorizations as may be
required under the Securities Act, the Securities Exchange Act of 1934, as amended (the
“
Exchange Act
”), the state securities or “Blue Sky” laws of any jurisdiction or the by-laws
and rules of the Financial Industry Regulatory Authority, Inc. (“
FINRA
”) in connection with
the purchase and distribution of the Units by the Underwriters, (y) such consents that have
been, or prior to any such Delivery Date will be, obtained and (z) such consents that, if
not obtained, would not reasonably be expected to have a Material Adverse Effect or
materially impair the ability of any of the Oxford
11
Entities to consummate the transactions
(including the Transactions) contemplated under this Agreement.
(aa)
No Defaults.
None of the Oxford Entities (i) is in violation of its certificate
of limited partnership, agreement of limited partnership, limited liability company
agreement or other organizational documents, (ii) is in violation 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 (iii) is
in breach, default (or an event that, 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 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, in the case of clause
(ii) or (iii), would, if continued, reasonably be expected to have a Material Adverse Effect
or materially impair the ability of any of the Oxford Entities to consummate the
transactions (including the Transactions) contemplated under this Agreement.
(bb)
Conformity of Units to Description in the most recent Preliminary Prospectus.
The
Units, when issued and delivered in accordance with the terms of the Partnership Agreement
and this Agreement against payment therefor as provided therein and herein, will conform in
all material respects to the description thereof contained in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
(cc)
No Integration.
The Partnership has not sold or issued any securities that would
be integrated with the offering of the Units contemplated by this Agreement pursuant to the
Securities Act, the Rules and Regulations or the interpretations thereof by the Commission.
(dd)
No Material Adverse Change.
None of the Oxford Entities has sustained, since the
date of the latest audited financial statements included in the Pricing Disclosure Package,
any loss or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, and since such date, except as disclosed in the Pricing Disclosure
Package and the Prospectus, there has not been any change in the capitalization or increase
in the long-term debt of the Partnership or any of its Subsidiaries, or any adverse change
in or affecting the condition (financial or other), results of operations, partners’
capital, properties, management, business or prospects of the Partnership and its
Subsidiaries, taken as a whole, in each case except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(ee)
Conduct of Business.
Except as disclosed in the Pricing Disclosure Package and
the Prospectus, since the date as of which information is given in the Pricing Disclosure
Package, none of the Oxford Entities has (i) incurred any liability or obligation, direct or
contingent, that, individually or in the aggregate, is material to the Partnership and its
Subsidiaries, taken as a whole, other than liabilities and obligations
12
that were incurred in
the ordinary course of business, (ii) entered into any transaction not in the ordinary
course of business that, individually or in the aggregate, is material to the Partnership
and its Subsidiaries, taken as a whole, or (iii) issued or granted any securities; and
neither the Partnership nor any of its Subsidiaries has declared, paid or made any dividend
or distribution of any class of securities.
(ff)
Financial Statements.
The historical financial statements (including the related
notes and supporting schedules) included in the Pricing Disclosure Package (i) comply in all
material respects with the applicable requirements under the Securities Act and the Exchange
Act, (ii) present fairly the financial condition, results of operations and cash flows of
the entities purported to be shown thereby at the dates and for the periods indicated, and
(iii) have been prepared in accordance with accounting principles generally accepted in the
United States applied on a consistent basis throughout the periods involved. The summary
historical and pro forma financial and operating data included in the Pricing Disclosure
Package under the caption “Summary—Summary Historical and Pro Forma Financial and Operating
Data” and the selected historical and pro forma financial and operating data included in the
Pricing Disclosure Package under the caption “Selected Historical and Pro Forma Consolidated
Financial and Operating Data” are fairly presented and prepared on a basis consistent with
the audited and unaudited historical financial statements and pro forma financial
statements, as applicable, from which they have been derived. The other financial
information of the Partnership and its Subsidiaries, including non-GAAP financial measures,
contained in the Pricing Disclosure Package has been derived from the accounting records of
the Partnership and its Subsidiaries, and fairly presents the information purported to be
shown thereby.
(gg)
Pro Forma Financial Statements.
The pro forma financial statements included in
the Pricing Disclosure Package include assumptions that provide a reasonable basis for
presenting the significant effects directly attributable to the transactions and events
described therein, the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma adjustments reflect the proper application of those
adjustments to the historical financial statement amounts in the pro forma financial
statements included in the Pricing Disclosure Package. The pro forma financial statements
included in the Pricing Disclosure Package comply as to form in all material respects with
the applicable requirements of Regulation S-X under the Securities Act.
(hh)
Independent Registered Public Accounting Firm.
Grant Thornton LLP, who has
certified the consolidated financial statements of the Partnership and its Subsidiaries (and
of the Partnership’s predecessor and its subsidiaries) included in the Pricing Disclosure
Package, whose report appears in the Pricing Disclosure Package and who has delivered the
initial letter referred to in Section 7(g) hereof, are independent public accountants as
required by the Securities Act and the Rules and Regulations; and Ernst & Young LLP, who has
certified the combined financial statements for the carved-out surface mining operations of
Phoenix Coal Inc., an Ontario (Canada) corporation, included in the Pricing Disclosure
Package, whose report appears in the Pricing Disclosure Package and who has delivered the
initial letter referred to in Section 7(i) hereof, are independent public accountants under
Rule 101 of the AICPA’s Code of Professional Conduct, and its interpretations and rulings.
13
(ii)
Reserve Engineer.
John T. Boyd Company (the “
Engineer
”), whose reserve
evaluations are referenced or appear, as the case may be, in the Pricing Disclosure Package
were, as of March 3, 2010, and are, as of the date hereof, independent engineers with
respect to the Partnership; and the historical information underlying the estimates of the
reserves of the Partnership supplied by the Partnership to the Engineer for the purposes of
preparing the reserve report, dated as of March 3, 2010, referenced in the Pricing
Disclosure Package (the “
Reserve Report
”), was true and correct in all material respects on
the date of the Reserve Report and was prepared in all material respects in accordance with
customary industry practices.
(jj)
Title to Properties.
Each Oxford Entity has good and indefeasible title to all
real property and good title to all personal property described in the Pricing Disclosure
Package as owned of record by them, in each case free and clear of all Liens, except (i) as
are described in the Pricing Disclosure Package or (ii) as would not reasonably be expected
to have, individually or in the aggregate, a material adverse effect upon the ability of the
Partnership and its Subsidiaries, taken as a whole, to conduct their businesses in all
material respects as currently conducted and as contemplated in the Pricing Disclosure
Package;
provided
that, with respect to real property and buildings held under lease by the
Oxford Entities, such real property and buildings are held under valid and subsisting and
enforceable leases with such exceptions as do not materially interfere with the use of the
properties of the Partnership and its Subsidiaries, taken as a whole, as currently used and
as contemplated in the Pricing Disclosure Package.
(kk)
Rights of Way.
At each Delivery Date, each of the Oxford Entities will have such
consents, easements, rights-of-way or licenses from any person (collectively,
“
rights-of-way
”) as are necessary to conduct its business in the manner described in the
Pricing Disclosure Package, subject to such qualifications as may be set forth in the
Pricing Disclosure Package and except for such rights-of-way the failure of which to have
obtained, would not reasonably be expected to have, individually or in the aggregate, a
material adverse effect upon the ability of the Partnership and its Subsidiaries, taken as a
whole, to conduct their businesses in all material respects as currently conducted and as
contemplated in the Pricing Disclosure Package; at each Delivery Date, each Oxford Entity
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 failures to perform, revocations,
terminations and impairments that would not reasonably be expected to have a material
adverse effect upon the ability of the Partnership and its Subsidiaries, taken as a whole,
to conduct their businesses in all material respects as currently conducted and as
contemplated in the Pricing Disclosure Package, subject in each case to such qualification
as may be set forth in the Pricing Disclosure Package.
(ll)
Insurance
. One or more of the Oxford 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 Oxford Entities has
14
received notice from any
insurer or agent of such insurer that material capital improvements or other material
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 each Delivery Date.
(mm)
Statistical and Market Related Data.
The statistical and market-related data
included in the Pricing Disclosure Package under the captions “Summary,” “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,” “The Coal
Industry” and “Business” are based on or derived from sources that the Partnership Parties
believe to be reliable and accurate in all material respects.
(nn)
Investment Company.
None of the Oxford Entities is now, or after the sale of the
Units to be sold by the Partnership hereunder and the application of the net proceeds
therefrom as described under “Use of Proceeds” in the Pricing Disclosure Package and the
Prospectus, none of them will be, (i) an “investment company” within the meaning of the
Investment Company Act of 1940, as amended (the “
Investment Company Act
”), and the rules and
regulations of the Commission thereunder or (ii) a “business development company” (as
defined in Section 2(a)(48) of the Investment Company Act).
(oo)
Litigation
. Except as described in the Pricing Disclosure Package, 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 any of the
Partnership Parties, threatened, to which any of the Oxford Entities is or may be a party or
to which the business or property of any of the Oxford Entities is or may be subject, and
(ii) 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 Oxford Entities is or
may be subject and that would reasonably be expected to (A) individually or in the aggregate
have a Material Adverse Effect, or (B) prevent or result in the suspension of the offering
and issuance of the Units.
(pp)
No Omitted Descriptions.
There are no legal or governmental proceedings pending
or, to the knowledge of the Partnership Parties, threatened, against any of the Oxford
Entities, or to which any of the Oxford Entities is a party, or to which any of their
respective properties or assets is subject, that are required to be described in the
Registration Statement or the Pricing Disclosure Package 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 Pricing Disclosure Package or
to be filed as an exhibit to the Registration Statement that are not described or filed as
required by the Securities Act, the Rules and Regulations, the Exchange Act or the rules and
regulations thereunder.
(qq)
Certain Relationships.
Except as described in the Pricing Disclosure Package, no
relationship, direct or indirect, exists between or among the Partnership and its
Subsidiaries, on the one hand, and the directors, officers, partners, members, customers or
suppliers of any of the Oxford Entities, on the other hand, that is required to be described
in the Pricing Disclosure Package which is not so described.
15
(rr)
No Labor Disputes.
No labor dispute with the employees that are engaged in the
business of the Partnership or its Subsidiaries exists or, to the knowledge of the
Partnership Parties, is imminent or threatened that would reasonably be expected to have a
Material Adverse Effect.
(ss)
ERISA
. (i) Each “employee benefit plan” (within the meaning of Section 3(3) of
the Employee Retirement Security Act of 1974, as amended (“
ERISA
”)) for which any of the
Oxford Entities would have any material liability, excluding any multiemployer plan (within
the meaning of Section 4001(a)(3) of ERISA) (each a “
Plan
”) has been maintained in material
compliance with its terms and with the requirements of all applicable statutes, rules and
regulations including ERISA and the Code; (ii) with respect to each Plan subject to Title IV
of ERISA (a) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has
occurred or is reasonably expected to occur, (b) no “accumulated funding deficiency” (within
the meaning of Section 302 of ERISA or Section 412 of the Internal Revenue Code of 1986, as
amended (the “
Code
”)), whether or not waived, has occurred or is reasonably expected to
occur, (c) the fair market value of the assets under each Plan exceeds the present value of
all benefits accrued under such Plan (determined based on those assumptions used to fund
such Plan) and (d) none of the Oxford Entities has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA (other than contributions to the Plan or premiums to
the Pension Benefit Guaranty Corporation in the ordinary course and without default) in
respect of a Plan (including a “multiemployer plan”, within the meaning of Section
4001(a)(3) of ERISA); and (iii) each Plan that is intended to be qualified under Section
401(a) of the Code has been determined by the Internal Revenue Service to be so qualified
and nothing has occurred, whether by action or by failure to act, that would reasonably be
expected to cause the loss of such qualification.
(tt)
Tax Returns.
Each of the Oxford Entities has filed (or has obtained extensions
with respect to) all material federal, state and foreign income and franchise 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) that are being contested in good faith and for which adequate reserves
have been established in accordance with generally accepted accounting principles or (ii)
that, if not paid, would not reasonably be expected to result in a Material Adverse Effect.
(uu)
Books and Records.
Each of the Oxford Entities (i) makes and keeps accurate books
and records and (ii) maintains effective internal control over financial reporting as
defined in Rule 13a-15 under the Exchange Act and a system of internal accounting controls
sufficient to provide reasonable assurance 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 accounting
principles generally accepted in the United States and to maintain accountability for its
assets, (C) access to the assets of the Partnership and its Subsidiaries is permitted only
in accordance with management’s general or specific authorization and (D) the recorded
accountability for assets is compared with existing
16
assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(vv)
Disclosure Controls and Procedures.
(i) Each Oxford Entity has established and
maintains disclosure controls and procedures (to the extent required by and as such term is
defined in Rule 13a-15 under the Exchange Act), (ii) such disclosure controls and procedures
are designed to ensure that the information required to be disclosed by the Partnership in
the reports it files or will file or submit under the Exchange Act, as applicable, is
accumulated and communicated to management of the Partnership, including the General
Partner’s respective principal executive officers and principal financial officers, as
appropriate, to allow timely decisions regarding required disclosure to be made and (iii)
such disclosure controls and procedures are effective in all material respects to perform
the functions for which they were established to the extent required by Rule 13a-15 of the
Exchange Act.
(ww)
No Changes in Internal Controls.
Since the date of the most recent balance sheet
of the Partnership reviewed or audited by Grant Thornton LLP and the audit committee of the
Board of Directors of the General Partner, (i) none of the Oxford Entities has been advised
by Grant Thornton LLP of (A) any significant deficiencies in the design or operation of
internal controls over financial reporting that are reasonably likely to adversely affect
the ability of the Oxford Entities to record, process, summarize and report financial data,
or any material weaknesses in internal controls over financial reporting affecting any of
the Oxford Entities, or (B) any fraud, whether or not material, that involves management or
other employees who have a significant role in the internal controls over financial
reporting of the Oxford Entities, and (ii) since that date, there have been no significant
changes in the internal controls of any of the Oxford Entities that materially affected or
are reasonably likely to materially affect any internal controls over financial reporting
relating to any of the Oxford Entities.
(xx)
Sarbanes-Oxley Act of 2002
. At each Delivery Date, the Partnership and, to the
knowledge of the Partnership Parties, the General Partner’s directors or officers, in their
capacities as such, will be in compliance in all material respects with all applicable
provisions of the Sarbanes-Oxley Act of 2002, the rules and regulations promulgated in
connection therewith and the rules of the New York Stock Exchange that are effective and
applicable to the Partnership.
(yy)
Permits
. Each of the Oxford Entities has such permits, licenses, patents,
franchises, certificates of need and other approvals or authorizations of governmental or
regulatory authorities (“
Permits
”) as are necessary under applicable law to be the record
holders of their properties and conduct their businesses in the manner described in the
Pricing Disclosure Package, except for any of the foregoing that would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect; each of the
Oxford Entities has fulfilled and performed all of its obligations with respect to the
Permits, and no event has occurred that allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other impairment of the rights of
the holder of any such Permits, except as described in the Pricing Disclosure Package or
17
for
any of the foregoing that would not reasonably be expected to have a Material Adverse
Effect.
(zz)
Intellectual Property.
Each of the Oxford Entities is the record holder of or
possesses adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark registrations, copyrights,
licenses, know-how, software, systems and technology (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of its business and has no reason to believe that the
conduct of its business will conflict with, and none of the Oxford Entities has received any
notice of any claim of conflict with, any such rights of others.
(aaa)
Environmental Laws.
Except as described in the Pricing Disclosure Package, each
of the Oxford Entities (i) is, and at all times prior hereto has been, in compliance with
all laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other legal
requirements of any governmental authority, including without limitation any international,
national, state, provincial, regional, or local authority, relating to the protection of
human health or safety, the environment, or natural resources, or imposing liability or
standards of conduct concerning any Hazardous Materials (as defined below) (“
Environmental
Laws
”) applicable to such entity, which compliance includes, without limitation, obtaining,
maintaining and complying with all permits and authorizations and approvals required by
Environmental Laws to conduct their respective businesses, (ii) has received all permits
required of them under applicable Environmental Laws to conduct their respective businesses,
(iii) is in compliance with all terms and conditions of any such permits and (iv) has not
received notice of any actual or alleged violation of Environmental Law or of liability in
connection with the release into the environment of any Hazardous Material, except where
such noncompliance with Environmental Laws, failure to receive required permits, failure to
comply with the terms and conditions of such permits or receipt of notice would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Except as described in the Pricing Disclosure Package, (x) there are no proceedings that are
pending, or known to be contemplated, against any of the Oxford Entities under Environmental
Laws in which a governmental authority is also a party, other than such proceedings
regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be
imposed and (y) none of the Oxford Entities anticipates material capital expenditures
relating to Environmental Laws other than those incurred in the ordinary course of business
for the purchase of equipment used in mining and reclamation activities, that would,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
The term “
Hazardous Material
” means (A) any “hazardous substance” as defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,
(B) any “hazardous waste” as defined in the Resource Conservation and Recovery Act, as
amended, (C) any petroleum or petroleum product, (D) any polychlorinated biphenyl and (E)
any pollutant or contaminant or hazardous, dangerous or toxic chemical, material, waste or
substance regulated under or within the meaning of any other Environmental Law.
18
(bbb)
Discrimination
. None of the Oxford Entities is in violation of or has received
notice of any violation with respect to any federal or state law relating to discrimination
in the hiring, promotion or pay of employees, nor any applicable federal or state wage and
hour laws, the violation of any of which would reasonably be expected to have a Material
Adverse Affect.
(ccc)
FCPA.
None of the Oxford Entities, nor, to the knowledge of the Partnership
Parties, any director, officer, employee or agent of the Oxford Entities, has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; or (iii) violated
or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977 (the
“
FCPA
”).
(ddd)
Compliance with Money Laundering Laws.
The operations of the Oxford Entities are
and have been conducted at all times in compliance with applicable financial recordkeeping
and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “
Money Laundering Laws
”), and no
action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Oxford Entities with respect to the Money Laundering Laws is
pending or, to the knowledge of the Partnership Parties, threatened, except, in each case,
as would not reasonably be expected to have a Material Adverse Effect.
(eee)
OFAC.
None of the Oxford Entities nor, to the knowledge of the Partnership
Parties, any director, officer, agent, employee or affiliate of the Oxford Entities is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“
OFAC
”); and the Oxford Entities will not directly or
indirectly use the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(fff)
Directed Unit Sales.
None of the Directed Units distributed in connection with
the Directed Unit Program (each as defined in Section 3 hereof) will be offered or sold
outside of the United States. The Partnership has not offered, or caused the DUP Manager (as
defined in Section 3 hereof) to offer, Units to any person pursuant to the Directed Unit
Program (as defined in Section 3 hereof) with the specific intent to unlawfully influence
(i) a customer or supplier of any of the Oxford Entities to alter the customer’s or
supplier’s level or type of business with any such entity or (ii) a trade journalist or
publication to write or publish favorable information about any of the Oxford Entities or
their respective businesses or products.
(ggg)
No Distribution of Other Offering Materials.
None of the Oxford Entities has
distributed or, prior to the later to occur of any Delivery Date and completion of the
19
distribution of the Units, will distribute any offering material in connection with the
offering and sale of the Units other than any Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus to which the Representatives have consented in accordance
with Section 1(h) or 5(a)(v) hereof, any other materials, if any, permitted by the
Securities Act, including Rule 134 of the Rules and Regulations, and, in connection with the
Directed Unit Program described in Section 3 hereof, the enrollment materials prepared by
the DUP Manager on behalf of the Partnership.
(hhh)
Market Stabilization.
None of the Oxford Entities or any of their affiliates has
taken, directly or indirectly, any action designed to or which has constituted or which
would reasonably be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any securities of the Partnership or to
facilitate the sale or resale of the Units.
(iii)
Listing on the New York Stock Exchange.
The Units have been approved for listing
on the New York Stock Exchange, subject to official notice of issuance.
Any certificate signed by any officer of the Partnership Parties and delivered to the
Representatives or counsel for the Underwriters in connection with the offering of the Units shall
be deemed a representation and warranty by such entity, as to matters covered thereby, to each
Underwriter.
2.
Purchase of the Units by the Underwriters
. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this Agreement, the
Partnership agrees to sell 8,750,000 Firm Units to the several Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase the number of Firm Units set forth
opposite that Underwriter’s name in Schedule 1 hereto. The respective purchase obligations of the
Underwriters with respect to the Firm Units shall be rounded among the Underwriters to avoid
fractional Units, as the Representatives may determine.
In addition, the Partnership grants to the Underwriters an option to purchase up to 1,312,500
Option Units. Such option (the “
Option
”) is exercisable in the event that the Underwriters sell
more Common Units than the number of Firm Units in the offering and as set forth in Section 4
hereof. Each Underwriter agrees, severally and not jointly, to purchase the number of Option Units
(subject to such adjustments to eliminate fractional Units as the Representatives may determine)
that bears the same proportion to the total number of Option Units to be sold on such Delivery Date
as the number of Firm Units set forth in
Schedule 1
hereto opposite the name of such
Underwriter bears to the total number of Firm Units.
The price of both the Firm Units and any Option Units purchased by the Underwriters shall be
$17.2975 per Common Unit.
The Partnership shall not be obligated to deliver any of the Firm Units or Option Units to be
delivered on the applicable Delivery Date, except upon payment for all such Units to be purchased
on such Delivery Date as provided herein.
20
3.
Offering of Units by the Underwriters
. Upon authorization by the Representatives of
the release of the Firm Units, the several Underwriters propose to offer the Firm Units for sale
upon the terms and conditions to be set forth in the Prospectus.
It is understood that, in connection with the proposed offering of the Units, the Partnership
has requested Citigroup Global Markets Inc. (the “
DUP Manager
”) to administer a directed unit
program (the “
Directed Unit Program
”), under which up to 5% of the Firm Units (the “
Directed
Units
”) to be purchased by the several Underwriters will initially be reserved for offer and sale
by the DUP Manager, upon the terms and conditions to be set forth in the Pricing Disclosure Package
and subject to the terms of this Agreement, the applicable rules, regulations and interpretations
of FINRA and all other applicable laws, rules and regulations, to the officers, directors and
employees of the General Partner and certain of their respective friends and families (“
Directed
Unit Participants
”) who have heretofore delivered to the DUP Manager offers to purchase Firm Units
in form satisfactory to the DUP Manager and that any allocation of such Firm Units among such
persons will be made in accordance with timely directions received by the DUP Manager from the
Partnership;
provided
that under no circumstances will the DUP Manager or any Underwriter be liable
to the Partnership or to any such person for any action taken or omitted in good faith in
connection with such Directed Unit Program. It is further understood that any Directed Units not
affirmatively reconfirmed for purchase by any Directed Unit Participant in the Directed Unit
Program by 7:00 A.M., New York City time, on the first business day following the date hereof or
otherwise are not purchased by such persons will be offered by the Underwriters to the public upon
the terms and conditions set forth in the Pricing Disclosure Package.
The Partnership agrees to pay all reasonable fees and disbursements incurred by the
Underwriters in connection with the Directed Unit Program and any stamp duties or other taxes
incurred by the Underwriters in connection with the Directed Unit Program.
4.
Delivery of and Payment for the Units
. Delivery of and payment for the Firm Units shall be
made at 10:00 A.M., New York City time, on July 19, 2010 or on such other date or at such other
time as shall be determined by agreement between the Representatives and the Partnership. This date
and time are sometimes referred to as the “
Initial Delivery Date
.” Delivery of the Firm Units shall
be made to the Representatives for the account of each Underwriter against payment by the several
Underwriters through the Representatives of the respective aggregate purchase prices of the Firm
Units being sold by the Partnership to or upon the order of the Partnership by wire transfer in
immediately available funds to the accounts specified by the Partnership. The Partnership shall
deliver the Firm Units through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct. Time shall be of the essence, and delivery on the date
and at the time and place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder.
The Option granted in Section 2 hereof will expire 30 days after the date of this Agreement
and may be exercised in whole or from time to time in part by written notice being
given to the Partnership by the Representatives;
provided
that if such date falls on a day
that is not a business day, the Option granted in Section 2 hereof will expire on the next
succeeding business day. Such notice shall set forth the aggregate number of Option Units as to
which the option is being exercised, the names in which the Option Units are to be registered, the
21
denominations in which the Option Units are to be issued and the date and time, as determined by
the Representatives, when the Option Units are to be delivered;
provided, however,
that this date
and time shall not be earlier than the Initial Delivery Date nor earlier than the second business
day after the date on which the Option shall have been exercised nor later than the fifth business
day after the date on which the Option shall have been exercised. Each date and time the Option
Units are delivered is sometimes referred to as an “
Option Unit Delivery Date
,” and the Initial
Delivery Date and any Option Unit Delivery Date are sometimes each referred to as a “
Delivery
Date
.”
Delivery of the Option Units by the Partnership and payment for the Option Units by the
several Underwriters through the Representatives shall be made on the date specified in the
corresponding notice described in the preceding paragraph as the Option Unit Delivery Date, at
10:00 A.M., New York City time, or on such other date or at such other time as shall be determined
by agreement between the Representatives and the Partnership. On the Option Unit Delivery Date, the
Partnership shall deliver or cause to be delivered the Option Units to the Representatives for the
account of each Underwriter against payment by the several Underwriters through the Representatives
of the respective aggregate purchase prices of the Option Units being sold by the Partnership to or
upon the order of the Partnership by wire transfer in immediately available funds to the accounts
specified by the Partnership. The Partnership shall deliver the Option Units through the facilities
of the Depository Trust Company unless the Representatives shall otherwise instruct. Time shall be
of the essence, and delivery on the date and at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter hereunder.
5.
Further Agreements of the Partnership Parties and the Underwriters
. (a) Each of the
Partnership Parties, jointly and severally, covenants and agrees:
(i)
Preparation of Prospectus and Registration Statement.
To prepare the
Prospectus in a form approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) of the Rules and Regulations not later than the Commission’s
close of business on the second business day following the execution and delivery of
this Agreement; to make no further amendment or any supplement to the Registration
Statement or the Prospectus prior to the last Delivery Date except as provided
herein; to advise the Representatives, promptly after it receives notice thereof, of
the time when any amendment or supplement to the Registration Statement or the
Prospectus has been filed and to furnish the Representatives with copies thereof; to
advise the Representatives, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the
suspension of the qualification of the Units for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding or examination for
any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the use of
the Prospectus or any Issuer Free Writing Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
22
(ii)
Signed Copies of Registration Statement.
To furnish promptly to each of
the Representatives and to counsel for the Underwriters a signed copy of the
Registration Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits filed
therewith;
(iii)
Copies of Documents to Underwriters.
To deliver promptly to the
Representatives such number of the following documents as the Representatives shall
reasonably request: (A) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement), (B) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus and (C) each Issuer Free
Writing Prospectus; and, if the delivery of a prospectus is required at any time
after the date hereof in connection with the offering or sale of the Units or any
other securities relating thereto and if at such time any events shall have occurred
as a result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary to amend or supplement the Prospectus in order to comply with
the Securities Act, to notify the Representatives and, upon their request, to file
such document and to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many copies as the Representatives may from time to time
reasonably request of an amended or supplemented Prospectus that will correct such
statement or omission or effect such compliance;
(iv)
Filing of Amendment or Supplement.
To file promptly with the Commission
any amendment or supplement to the Registration Statement or the Prospectus that
may, in the judgment of the Partnership or the Representatives, be required by the
Securities Act or requested by the Commission; prior to filing with the Commission
any amendment or supplement to the Registration Statement or the Prospectus, to
furnish a copy thereof to the Representatives and counsel for the Underwriters and
obtain the consent of the Representatives to the filing, which consent shall not be
unreasonably withheld;
(v)
Issuer Free Writing Prospectus.
Not to make any offer relating to the
Units that would constitute an Issuer Free Writing Prospectus without the prior
written consent of the Representatives; to comply with all applicable requirements
of Rule 433 of the Rules and Regulations with respect to any Issuer Free Writing
Prospectus (including retaining in accordance with such rule any
Issuer Free Writing Prospectuses not required to be filed pursuant thereto);
and if at any time after the date hereof any events shall have occurred as a result
of which any Issuer Free Writing Prospectus, as then amended or supplemented, would
conflict with the information in the Registration Statement, the Pricing Disclosure
Package or the Prospectus or would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
23
statements therein, in the light of the circumstances under which they were made, not misleading, or, if
for any other reason it shall be necessary to amend or supplement any Issuer Free
Writing Prospectus, to notify the Representatives and, upon their request, to file
such document and to prepare and furnish without charge to each Underwriter as many
copies as the Representatives may from time to time reasonably request of an amended
or supplemented Issuer Free Writing Prospectus that will correct such conflict,
statement or omission or effect such compliance;
(vi)
Reports to Security Holders.
As soon as practicable after the Effective
Date (it being understood that the Partnership shall have until at least 410 days
or, if the fourth quarter following the fiscal quarter that includes the Effective
Date is the last fiscal quarter of the Partnership’s fiscal year, 455 days after the
end of the Partnership’s current fiscal quarter), to make generally available to the
Partnership’s security holders and to deliver to the Representatives an earnings
statement of the Partnership and its Subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Partnership, Rule 158 of the Rules and
Regulations);
(vii)
Qualifications
. Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Units for offering and sale
under the securities laws of such jurisdictions as the Representatives may request
and to comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Units;
provided
that in connection therewith the Partnership
shall not be required to (i) qualify as a foreign limited partnership in any
jurisdiction in which it would not otherwise be required to so qualify, (ii) file a
general consent to service of process in any such jurisdiction or (iii) subject
itself to taxation in any jurisdiction in which it would not otherwise be subject;
(viii)
Lock-Up Period; Lock-Up Letters
. For a period commencing on the date
hereof and ending on the 180th day after the date of the Prospectus (the “
Lock-Up
Period
”), not to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device that is designed to,
or could be expected to, result in the disposition by any person at any time in the
future of) any Common Units or securities convertible into or exchangeable for
Common Units (other than (A) the Units and Common Units or securities convertible
into or exchangeable for Common Units granted or issued pursuant to employee benefit
plans, qualified option plans or other employee or director compensation plans or
arrangements existing on the date hereof, or (B) Common
Units granted to Peter B. Lilly as disclosed in the Pricing Disclosure
Package), or sell or grant options, rights or warrants with respect to any Common
Units or securities convertible into or exchangeable for Common Units (other than
the grant of options pursuant to plans existing on the date hereof), (2) enter into
any swap or other derivatives transaction that transfers to another, in whole or in
part, any of the economic benefits or risks of being the record holder of such Common
24
Units, whether any such transaction described in clause (1) or (2) above is
to be settled by delivery of Common Units or other securities, in cash or otherwise,
(3) file or cause to be filed a registration statement, including any amendments,
with respect to the registration of any Common Units or securities convertible,
exercisable or exchangeable into Common Units or any other securities of the
Partnership (other than any registration statement on Form S-8) or (4) publicly
disclose the intention to do any of the foregoing, in each case without the prior
written consent of the Representatives, on behalf of the Underwriters, and to cause
the executive officers and directors of the General Partner and the unitholders of
the Partnership set forth on
Schedule 2
hereto to furnish to the
Representatives, prior to the Initial Delivery Date, an executed letter or letters,
substantially in the form of
Exhibit A
hereto (the “
Lock-Up Agreements
”);
notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period,
the Partnership issues an earnings release or material news or a material event
relating to the Partnership occurs, or (2) prior to the expiration of the Lock-Up
Period, the Partnership announces that it will release earnings results during the
16-day period beginning on the last day of the Lock-Up Period, then the restrictions
imposed in this paragraph shall continue to apply until the expiration of the 18-day
period beginning on the issuance of the earnings release or the announcement of the
material news or the occurrence of the material event, unless the Representatives,
on behalf of the Underwriters, waive such extension in writing;
(ix)
Application of Proceeds.
To apply the net proceeds from the sale of the
Units being sold by the Partnership as set forth in the Prospectus; and
(x)
Directed Unit Program.
In connection with the Directed Unit Program, to
ensure that the Directed Units will be restricted from sale, transfer, assignment,
pledge or hypothecation to the same extent as sales and dispositions of Common Units
by the Partnership are restricted pursuant to Section 5(a)(viii) hereof, and the
Representatives will notify the Partnership as to which Directed Unit Participants
will need to be so restricted. At the request of the DUP Manager, the Partnership
will direct the transfer agent to place stop transfer restrictions upon such
securities for such period of time as is consistent with Section 5(a)(viii) hereof;
and
(b) Each Underwriter severally agrees that such Underwriter shall not include any
“issuer information” (as defined in Rule 433 of the Rules and Regulations) in any “free
writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred
to by such Underwriter without the prior consent of the Partnership (any such issuer
information with respect to whose use the Partnership has given its consent,
“
Permitted Issuer Information
”);
provided
that (i) no such consent shall be required
with respect to any such issuer information contained in any document filed by the
Partnership with the Commission prior to the use of such free writing prospectus and (ii)
“issuer information,” as used in this Section 5(b), shall not be deemed to include
information prepared by or on behalf of such Underwriter on the basis of or derived from
issuer information.
25
6.
Expenses
. Each of the Partnership Parties covenants and agrees to pay or cause to be paid
all costs, expenses, fees and taxes incident to and in connection with (a) the authorization,
issuance, sale and delivery of the Units, and the preparation, printing, issuance and delivery of
certificates for the Units, including any stamp or transfer taxes in connection with the original
issuance and sale of the Units; (b) the preparation, printing and filing under the Securities Act
of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto; (c) the
distribution of the Registration Statement (including any exhibits thereto), any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement
thereto, all as provided in this Agreement; (d) the production and distribution of this Agreement,
any supplemental agreement among Underwriters, and any other related documents in connection with
the offering, purchase, sale and delivery of the Units; (e) services provided by the transfer agent
or registrar; (f) any filing fees in connection with the required review by FINRA of the terms of
sale of the Units; (g) the listing of the Units on the New York Stock Exchange or any other
exchange; (h) the qualification of the Units under the securities laws of the several jurisdictions
as provided in Section 5(a)(vii) and the preparation, printing and distribution of a Blue Sky
Memorandum (including the reasonable fees and expenses of counsel to the Underwriters related
thereto); (i) the preparation, printing and distribution of one or more versions of the Preliminary
Prospectus and the Prospectus for distribution in Canada, including in the form of a Canadian
“wrapper” (including related fees and expenses of Canadian counsel to the Underwriters); (j) the
offer and sale of Units by the Underwriters in connection with the Directed Unit Program, including
the reasonable fees and expenses of counsel to the Underwriters related thereto, the costs and
expenses of preparation, printing and distribution of the Directed Unit Program materials and all
stamp duties or other taxes incurred by the Underwriters in connection with the Directed Unit
Program; (k) the investor presentations on any “road show” undertaken in connection with the
marketing of the Units, including, without limitation, expenses associated with any electronic
roadshow, travel and lodging expenses of the Representatives and officers of the General Partner
and 50% of the cost of any aircraft chartered in connection with the road show; and (l) all other
costs and expenses incident to the performance of the obligations of the Partnership under this
Agreement;
provided
that, except as provided in this Section 6 and in Section 11, the Underwriters
shall pay their own costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Units which they may sell, the expenses of advertising any offering of the
Units made by the Underwriters and 50% of the cost of any aircraft chartered in connection with the
roadshow. The Partnership agrees to pay to Barclays Capital Inc. and Citigroup Global Markets Inc.
a structuring fee in an amount equal to 0.5% of the gross proceeds from the sale of the Units for
the evaluation, analysis and structuring of the Partnership.
7.
Conditions of Underwriters’ Obligations
. The respective obligations of the Underwriters
hereunder are subject to the accuracy, when made and on each Delivery Date, of the representations
and warranties of the Partnership Parties contained herein, to the performance by the Partnership
Parties of their obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with
Section 5(a)(i) hereof; the Partnership Parties shall have complied with all filing
requirements applicable to any Issuer Free Writing Prospectus used or referred
26
to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus
shall have been issued and no proceeding or examination for such purpose shall have been
initiated or threatened by the Commission; and any request of the Commission for inclusion
of additional information in the Registration Statement or the Prospectus or otherwise shall
have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Partnership Parties on or
prior to such Delivery Date that the Registration Statement, the Prospectus or the Pricing
Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of
a fact which, in the opinion of Andrews Kurth LLP, counsel to the Underwriters, is material
or omits to state a fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary (in the case of the Prospectus and the Pricing
Disclosure Package, in the light of the circumstances under which such statements were made)
to make the statements therein not misleading.
(c) All limited partnership and limited liability company proceedings and other legal
matters incident to the authorization, form and validity of this Agreement, the Units, the
Registration Statement, the Pricing Disclosure Package, the Prospectus and any Issuer Free
Writing Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby (including the Transactions) shall be reasonably
satisfactory in all material respects to counsel for the Underwriters, and the Partnership
Parties shall have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Latham & Watkins LLP shall have furnished to the Representatives its written
opinion, as counsel to the Partnership, addressed to the Underwriters and dated such
Delivery Date, in form and substance reasonably satisfactory to the Representatives,
substantially in the form attached hereto as
Exhibit B-1
.
(e) Squire, Sanders & Dempsey L.L.P. shall have furnished to the Representatives (i)
its written opinion, as counsel to the Partnership, addressed to the Underwriters and dated
such Delivery Date, in form and substance reasonably satisfactory to the Representatives,
substantially in the form attached hereto as
Exhibit B-2
and (ii) a copy of their
opinion delivered to the lenders under the Credit Facility and a reliance letter, dated
such Delivery Date, in the form attached hereto as
Exhibit B-3
entitling the
Underwriters to rely on such opinion as if it were addressed to them.
(f) The Representatives shall have received from Andrews Kurth LLP, counsel for the
Underwriters, such opinion or opinions, dated such Delivery Date, with respect to the
issuance and sale of the Units, the Registration Statement, the Prospectus and the Pricing
Disclosure Package and other related matters as the Representatives may reasonably require,
and the Partnership Parties shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters.
27
(g) At the time of execution of this Agreement, the Representatives shall have received
from Grant Thornton LLP a letter, in form and substance satisfactory to the Representatives,
addressed to the Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since the respective dates as
of which specified financial information is given in the most recent Preliminary Prospectus,
as of a date not more than three days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to underwriters in connection with registered
public offerings.
(h) With respect to the letter of Grant Thornton LLP referred to in the preceding
paragraph and delivered to the Representatives concurrently with the execution of this
Agreement (the “
GT initial letter
”), the Partnership Parties shall have furnished to the
Representatives a letter (the “
GT bring-down letter
”) of such accountants, addressed to the
Underwriters and dated such Delivery Date, (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the GT bring-down letter
(or, with respect to matters involving changes or developments since the respective dates as
of which specified financial information is given in the Prospectus, as of a date not more
than three days prior to the date of the GT bring-down letter), the conclusions and findings
of such firm with respect to the financial information and other matters covered by the GT
initial letter and (iii) confirming in all material respects the conclusions and findings
set forth in the GT initial letter.
(i) At the time of execution of this Agreement, the Representatives shall have received
from Ernst & Young LLP a letter, in form and substance satisfactory to the Representatives,
addressed to the Underwriters and dated the date hereof.
(j) With respect to the letter of Ernst & Young LLP referred to in the preceding
paragraph and delivered to the Representatives concurrently with the execution of this
Agreement (the “
EY initial letter
”), the Partnership Parties shall have furnished to the
Representatives a letter of such accountants, addressed to the Underwriters and dated such
Delivery Date, confirming in all material respects the conclusions and findings set forth in
the EY initial letter.
(k) At the time of execution of this Agreement, the Representatives shall have received
from John T. Boyd Company an initial letter (the “
initial expert letter
”), in form and
substance satisfactory to the Representatives, addressed to the Underwriters and dated the
date hereof and a subsequent letter dated as of the Delivery Date confirming in all material
respects the conclusions and findings set forth in the initial expert letter.
28
(l) The Partnership shall have furnished to the Representatives a certificate, dated
such Delivery Date, of the Chief Executive Officer and Chief Financial Officer of the
General Partner stating that:
(i) The representations, warranties and agreements of the Partnership Parties
in Section 1 hereof are true and correct on and as of such Delivery Date, and the
Partnership Parties have complied with all their agreements contained herein and
satisfied all the conditions to be performed or satisfied by the Partnership Parties
hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement
has been issued; and no proceedings or examination for that purpose have been
instituted or, to the knowledge of such officers, threatened; and
(iii) Such officers have carefully examined the Registration Statement, the
Prospectus and the Pricing Disclosure Package, and, in their opinion, (1) the
Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date
and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of
the Applicable Time, did not and do not contain any untrue statement of a material
fact and did not and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (except in the case of the
Registration Statement, in the light of the circumstances under which they were
made) not misleading;
(m) Except as described in the most recent Preliminary Prospectus, (i) none of the
Oxford Entities shall have sustained, since the date of the latest audited financial
statements included in the most recent Preliminary Prospectus, any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree or
(ii) since such date there shall not have been any change in the capitalization or increase
in long-term debt of any of the Oxford Entities or any change, or any development involving
a prospective change, in or affecting the condition (financial or other), results of
operations, partners’ capital, properties, management or business of the Oxford Entities
taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is,
in the judgment of the Representatives, so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the Units being
delivered on such Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(n) Subsequent to the execution and delivery of this Agreement there shall not have
occurred any of the following: (i) trading in securities generally on the New York
Stock Exchange shall have been suspended or materially limited, (ii) trading in any
securities of the Partnership on the New York Stock Exchange shall have been suspended or
materially limited or minimum prices shall have been established, (iii) a banking moratorium
shall have been declared by federal or state authorities, (iv) the United States shall have
become engaged in hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national emergency
29
or war by the United States or (v) there shall have occurred such a material adverse change in general
economic, political or financial conditions, including, without limitation, as a result of
terrorist activities after the date hereof (or the effect of international conditions on the
financial markets in the United States shall be such), in each case, as to make it, in the
judgment of the Representatives, impracticable or inadvisable to proceed with the public
offering or delivery of the Units being delivered on such Delivery Date on the terms and in
the manner contemplated in the Prospectus.
(o) The New York Stock Exchange shall have approved the Units for listing, subject only
to official notice of issuance.
(p) The Lock-Up Agreements between the Representatives and each of the parties listed
on
Schedule 2
hereto and, in the case of each participant in the Directed Unit
Program, the lock-up agreement contained in the Directed Unit Program materials and
delivered to the Representatives on or before the date of this Agreement, shall be in full
force and effect on such Delivery Date.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
8.
Indemnification and Contribution.
(a) Each of the Partnership Parties, jointly and severally, shall indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter, each affiliate of any Underwriter who has participated in the distribution of
the Units, each broker-dealer affiliate of any Underwriter and each other affiliate of any
Underwriter within the meaning of Rule 405 under the Rules and Regulations, and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage, liability or action
relating to purchases and sales of the Units), to which that Underwriter, director, officer,
employee, agent, affiliate or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or
is based upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in (A) any Preliminary Prospectus, the Registration Statement, the Prospectus or
any amendment or supplement thereto, (B) any Issuer Free Writing Prospectus or any amendment
or supplement thereto, (C) any Permitted Issuer Information used or referred to in any “free
writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred
to by any Underwriter or (D) any “road show” (as defined in Rule 433 of the Rules and
Regulations) not constituting an Issuer
Free Writing Prospectus (a “
Non-Prospectus Road Show
”) or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus or any amendment or supplement thereto, or in any
Permitted Issuer Information or any Non-Prospectus Road Show, any material fact required to
be stated therein or necessary to make the statements therein not misleading (in the case of
any Preliminary Prospectus, the Prospectus or any Issuer Free
30
Writing Prospectus, in the light of the circumstances under which such statements were made), and shall reimburse each
Underwriter and each such director, officer, employee, agent, affiliate or controlling
person promptly upon demand for any legal or other expenses reasonably incurred by that
Underwriter, director, officer, employee, agent, affiliate or controlling person in
connection with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred;
provided, however,
that
the Partnership Parties shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or any such amendment or supplement thereto, or in any Permitted Issuer
Information or any Non-Prospectus Road Show, in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Partnership Parties through the
Representatives by or on behalf of any Underwriter specifically for inclusion therein, which
information consists solely of the information specified in Section 8(e) hereof. The
foregoing indemnity agreement is in addition to any liability which the Partnership Parties
may otherwise have to any Underwriter or to any director, officer, employee, agent,
affiliate or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless each
of the Partnership Parties, the General Partner’s directors and officers who sign or consent
to be included in the Registration Statement, and each person, if any, who controls any of
the Partnership Parties within the meaning of Section 15 of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Partnership Parties or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any amendment
or supplement thereto or in any Non-Prospectus Road Show, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus or any amendment or supplement thereto or in any
Non-Prospectus Road Show, any material fact required to be stated therein or necessary to
make the statements therein not misleading (in the case of any Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus, in light of the circumstances under which
such statements were made), but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Underwriter furnished to the Partnership
Parties through the Representatives by or on behalf of that Underwriter specifically for
inclusion therein, which information is limited to the information set forth in Section 8(e)
hereof. The foregoing indemnity agreement is in addition to any liability that any
Underwriter may otherwise have to the Partnership Parties or any such director, officer or
controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
any claim or the commencement of any action, the indemnified party shall, if a
31
claim in respect thereof is to be made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the claim or the commencement of that action;
provided,
however,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has been materially
prejudiced by such failure, and
provided further
that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of investigation;
provided,
however,
that the Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other Underwriters and their respective directors,
officers, employees, agents, affiliates and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Partnership Parties under this Section 8 if (i) the Partnership
Parties and the Underwriters shall have so mutually agreed in writing; (ii) the Partnership
Parties have failed within a reasonable time to retain counsel reasonably satisfactory to
the Underwriters; (iii) the Underwriters and their respective directors, officers,
employees, agents, affiliates and controlling persons shall have reasonably concluded, based
upon the advice of counsel, that there may be legal defenses available to them that are
different from or in addition to those available to the Partnership Parties (it being
understood, however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to any local counsel) in any one action, suit or
proceeding or series of related actions, suits or proceedings in the same jurisdiction
representing the indemnified parties who are parties to such action, suit or proceeding); or
(iv) the named parties in any such proceeding (including any impleaded parties) include both
any of the Underwriters or their respective directors, officers, employees, agents,
affiliates or controlling persons, on the one hand, and any of the Partnership Parties, on
the other hand, and representation of both sets of parties by the same counsel would be
inappropriate due to actual or potential differing interests between them, and in any such
event the reasonable fees and expenses of such separate counsel shall be paid by the
Partnership Parties. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding and does not
include any findings of fact or admissions of fault or culpability as to the indemnified
party, or (ii) be liable for any settlement of any such action effected without its written
32
consent (which consent shall not be unreasonably withheld), but if settled with the consent
of the indemnifying party or if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or
8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received by the
Partnership Parties, on the one hand, and the Underwriters, on the other, 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 Partnership
Parties, on the one hand, and the Underwriters, on the other, with respect to the statements
or omissions that resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative benefits
received by the Partnership Parties, on the one hand, and the Underwriters, on the other,
with respect to such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Units purchased under this Agreement (before deducting
expenses) received by the Partnership Parties, as set forth in the table on the cover page
of the Prospectus, on the one hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the Units purchased under this Agreement, as
set forth in the table on the cover page of the Prospectus, on the other hand. The relative
fault shall be determined by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Partnership Parties or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Partnership Parties and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section 8(d) were to be
determined by 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 into account the
equitable considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 8(d) shall be deemed to include, for purposes of this
Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the net proceeds from the sale of
the Units underwritten by it exceeds the amount of any damages that such Underwriter
has otherwise paid or become liable to pay by reason of any 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
33
misrepresentation. The Underwriters’ obligations to contribute as provided in this Section 8(d) are several in
proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Partnership Parties acknowledge and
agree that the statements regarding the delivery of Units by the Underwriters set forth on
the cover page of the Prospectus, and the statements in the first paragraph following the
table under the subheading “Commissions and Expenses,” the third paragraph under the
subheading “Lock-Up Agreements,” the statements set forth under the subheadings
“Stabilization, Short Positions and Penalty Bids,” “Electronic Distribution,” “Discretionary
Sales,” and the third sentence under the subheading “Offering Price Determination,” in each
case, appearing under the caption “Underwriting” in the Pricing Disclosure Package and the
Prospectus are correct and constitute the only information concerning such Underwriters
furnished in writing to the Partnership Parties by or on behalf of the Underwriters
specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement thereto or in
any Non-Prospectus Road Show.
(f) The Partnership Parties shall indemnify and hold harmless the DUP Manager
(including its directors, officers, employees, agents, affiliates and joint ventures who
have participated in the distribution of the Directed Units, its broker-dealer affiliates,
and its affiliates within the meaning of Rule 405 of the
Rules and Regulations) and each person, if any, who controls the DUP Manager within the
meaning of Section 15 of the Securities Act, from and against any loss, claim, damage or
liability or any action in respect thereof to which the DUP Manager may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action (i) arises out of, or is based upon, any untrue statement or alleged untrue statement
of a material fact contained in any material prepared by or with the approval of any of the
Partnership Parties for distribution to Directed Unit Participants in connection with the
Directed Unit Program or 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,
(ii) arises out of, or is based upon, the failure of the Directed Unit Participant to pay
for and accept delivery of Directed Units that the Directed Unit Participant agreed to
purchase or (iii) is otherwise related to the Directed Unit Program;
provided
that the
Partnership Parties shall not be liable under this clause (iii) for any loss, claim, damage,
liability or action that is determined in a final judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of the DUP
Manager. The Partnership Parties shall reimburse the DUP Manager promptly upon demand for
any legal or other expenses reasonably incurred by it in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred.
9.
Defaulting Underwriters
. If, on any Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Units that the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number of Firm Units set
forth opposite the name of each remaining non-defaulting Underwriter
34
in
Schedule 1
hereto
bears to the total number of Firm Units set forth opposite the names of all the remaining
non-defaulting Underwriters in
Schedule 1
hereto;
provided, however,
that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the Units on such Delivery
Date if the total number of Units that the defaulting Underwriter or Underwriters agreed but failed
to purchase on such date exceeds 9.09% of the total number of Units to be purchased on such
Delivery Date, and any remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the number of Units that it agreed to purchase on such Delivery Date pursuant to the
terms of Section 2. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the Units to be purchased on such Delivery Date. If the remaining Underwriters or
other underwriters satisfactory to the Representatives do not elect to purchase the Units that the
defaulting Underwriter or Underwriters agreed but failed to purchase on such Delivery Date, this
Agreement (or, with respect to any Option Unit Delivery Date, the obligation of the Underwriters to
purchase, and of the Partnership to sell, the Option Units) shall terminate without liability on
the part of any non-defaulting Underwriter or any of the Partnership Parties, except that the
Partnership will continue to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11 hereof. As used in this Agreement, the term “Underwriter” includes, for all
purposes of this Agreement unless the context requires otherwise, any party not listed in
Schedule 1
hereto that, pursuant to this Section 9 hereof, purchases Units that a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Partnership Parties for damages caused by its default. If other Underwriters are obligated
or agree to purchase the Units of a defaulting or withdrawing Underwriter, either the
Representatives or the Partnership may postpone the Delivery Date for up to seven full business
days in order to effect any changes that in the opinion of counsel for the Partnership or counsel
for the Underwriters may be necessary in the Registration Statement, the Prospectus or in any other
document or arrangement.
10.
Termination
. The obligations of the Underwriters hereunder may be terminated by the
Representatives by notice given to and received by the Partnership Parties prior to delivery of and
payment for the Firm Units if, prior to that time, any of the events described in Sections 7(m) or
7(n) shall have occurred or if the Underwriters shall decline to purchase the Units for any reason
permitted under this Agreement.
11.
Reimbursement of Underwriters’ Expenses
. If the Partnership shall fail to tender the Units for delivery to the Underwriters by
reason of any failure, refusal or inability on the part of any Partnership Parties to perform any
agreement on its part to be performed, or because any other condition to the Underwriters’
obligations hereunder required to be fulfilled by the Partnership Parties is not fulfilled for any
reason, the Partnership will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including the reasonable fees and expenses of counsel) incurred by the Underwriters in connection
with this Agreement and the proposed purchase of the Units, and upon demand the Partnership shall
pay the full amount thereof to the Representatives. If this Agreement is terminated pursuant to Section 9 hereof
35
(Defaulting Underwriters) by reason of the default of one or more Underwriters,
the Partnership shall not be obligated to reimburse any Underwriter on account of such
Underwriter’s expenses.
12.
Research Analyst Independence
. Each of the Partnership Parties acknowledges that the
Underwriters’ research analysts and research departments are required to be independent from their
respective investment banking divisions and are subject to certain regulations and internal
policies, and that such Underwriters’ research analysts may hold views and make statements or
investment recommendations and/or publish research reports with respect to the Partnership and/or
the offering of the Units that differ from the views of their respective investment banking
divisions. Each of the Partnership Parties hereby waives and releases, to the fullest extent
permitted by law, any claims that the Partnership Parties may have against the Underwriters with
respect to any conflict of interest that may arise from the fact that the views expressed by their
independent research analysts and research departments may be different from or inconsistent with
the views or advice communicated to the Partnership Parties by such Underwriters’ investment
banking divisions. Each of the Partnership Parties acknowledges that each of the Underwriters is a
full service securities firm and as such from time to time, subject to applicable securities laws,
may effect transactions for its own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
13.
No Fiduciary Duty
. Each of the Partnership Parties acknowledges and agrees that in
connection with this offering, sale of the Units or any other services the Underwriters may be
deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or
otherwise, between the parties or any oral representations or assurances previously or subsequently
made by the Underwriters: (i) no fiduciary or agency relationship between any of the Partnership
Parties and any other person, on the one hand, and the Underwriters, on the other hand, exists;
(ii) the Underwriters are not acting as advisors, expert or otherwise, to any of the Partnership
Parties, including, without limitation, with respect to the determination of the public offering
price of the Units, and such relationship between the Partnership Parties, on the one hand, and the
Underwriters, on the other hand, is entirely and solely commercial, based on arms-length
negotiations; (iii) any duties and obligations that the Underwriters may have to any of the
Partnership Parties shall be limited to those duties and obligations specifically stated herein;
and (iv) the Underwriters and their respective affiliates may have interests that differ from those
of the Partnership Parties. Each of the Partnership Parties hereby waives any claims that any such
entity may have against the Underwriters with respect to any breach of fiduciary duty in
connection with this offering of Units.
14.
Notices, Etc
. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile
transmission to (i) Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019,
Attention: Syndicate Registration (Fax: 646-834-8133), with a copy, in the case of any
notice pursuant to Section 8(c), to the Director of Litigation, Office of the General
Counsel, Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019 and (ii)
Citigroup Global Markets Inc., to the General Counsel (fax no.: (212) 816-7912) and
36
confirmed to the General Counsel, Citigroup Global Markets Inc., at 388 Greenwich Street,
New York, New York 10013; and
(b) if to the Partnership, shall be delivered or sent by mail or facsimile transmission
to the address of the Company set forth in the Registration Statement, Attention: Michael B.
Gardner, General Counsel (Fax: (614) 754-7100).
Any such statements, requests, notices or agreements shall take effect at the time of receipt
thereof. The Partnership Parties shall be entitled to act and rely upon any request, consent,
notice or agreement given or made on behalf of the Underwriters by Barclays Capital Inc. on behalf
of the Representatives.
15.
Persons Entitled to Benefit of Agreement
. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Partnership Parties and their respective successors.
This Agreement and the terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of the Partnership
Parties contained in this Agreement shall also be deemed to be for the benefit of the directors,
officers, employees and agents of each of the Underwriters, each affiliate of any Underwriter who
has participated in the distribution of Units as underwriters, each broker-dealer affiliate of any
Underwriter and each other affiliate of any Underwriter within the meaning of Rule 405 of the Rules
and Regulations, and each person or persons, if any, who control any Underwriter within the meaning
of Section 15 of the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 8(b) hereof shall be deemed to be for the benefit of the General Partner’s directors and
officers who sign or consent to be included in the Registration Statement, and any person
controlling the Partnership Parties within the meaning of Section 15 of the Securities Act.
Nothing in this Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 15, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
16.
Survival
. The respective indemnities, representations, warranties and agreements of the Partnership
Parties and the Underwriters contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Units
and shall remain in full force and effect, regardless of any investigation made by or on behalf of
any of them or any person controlling any of them.
17.
Definition of the Terms “Business Day” and “Subsidiary”
. For purposes of this Agreement,
(a) “
business day
” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on
which banking institutions in New York City are generally authorized or obligated by law or
executive order to close and (b) “
subsidiary
” has the meaning set forth in Rule 405 of the Rules
and Regulations.
18.
Governing Law
.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
19.
Counterparts
. This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts shall each
37
be deemed to be an original but all such counterparts shall together constitute one and the same instrument.
20.
Headings
. The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
[Signature pages follow]
38
If the foregoing correctly sets forth the agreement between the Partnership Parties and the
Underwriters, please indicate your acceptance in the space provided for that purpose below.
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Very truly yours,
Oxford Resources GP, LLC
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By:
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/s/ Jeffrey M. Gutman
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Name:
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Jeffrey M. Gutman
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Title:
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Senior Vice President, Chief Financial
Officer and Treasurer
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Oxford Resource Partners, LP
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By:
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Oxford Resources GP, LLC,
its general partner
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By:
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/s/ Jeffrey M. Gutman
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Name:
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Jeffrey M. Gutman
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Title:
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Senior Vice President, Chief
Financial Officer and Treasurer
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Oxford Mining Company, LLC
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By:
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/s/ Jeffrey M. Gutman
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Name:
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Jeffrey M. Gutman
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Title:
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Senior Vice President, Chief Financial
Officer and Treasurer
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Accepted:
Barclays Capital Inc.
Citigroup Global Markets Inc.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
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Barclays Capital Inc.
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By:
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/s/
Victoria Hale
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Authorized Representative
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Citigroup Global Markets Inc.
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By:
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/s/
Phillip Battaglia
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Authorized Representative
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SCHEDULE 1
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Number of Firm Units
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Underwriters
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to be Purchased
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Barclays Capital Inc.
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2,843,750
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Citigroup Global Markets Inc.
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2,843,750
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Credit Suisse Securities (USA) LLC
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875,000
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Raymond James & Associates, Inc.
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875,000
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Wells Fargo Securities, LLC
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875,000
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UBS Securities LLC
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437,500
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Total
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8,750,000
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Schedule 1
SCHEDULE 2
PERSONS DELIVERING LOCK-UP AGREEMENTS
Directors
Brian D. Barlow
Matthew P. Carbone
Peter B. Lilly
George E. McCown
Gerald A. Tywoniuk
Officers
Michael B. Gardner
Jeffrey M. Gutman
Gregory J. Honish
Denise M. Maksimoski
Charles C. Ungurean
Thomas T. Ungurean
Unitholders
AIM Oxford Holdings, LLC
C&T Coal, Inc.
Schedule 2
SCHEDULE 3
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1.
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Public offering price for the Units: $18.50
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2.
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Number of Units: 8,750,000
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Schedule 3
SCHEDULE 4
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1.
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Letter dated May 3, 2010 for
Equipment Lease Payoff/Termination and Equipment Purchase
Transaction
executed by Caterpillar Financial Services Corporation in favor of Oxford
Resource Partners, LP, Oxford Resources GP, LLC, Oxford Mining Company, LLC and Oxford
Mining Company — Kentucky, LLC.
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2.
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Letter dated May 12, 2010 for
Equipment Lease Payoff/Termination and Equipment Purchase
Transaction
executed by General Electric Capital Corporation in favor of Oxford Resource
Partners, LP, Oxford Resources GP, LLC, Oxford Mining Company, LLC and Oxford Mining
Company — Kentucky, LLC.
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3.
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Letter dated May 10, 2010 for
Equipment Lease Termination and Equipment Purchase
Transaction
, and the related
Agreement Regarding Equipment Lease and Related Equipment
Transaction Purchase Amount Form
dated June 30, 2010, executed by OMCO Leasing Corporation
in favor of Oxford Resource Partners, LP, Oxford Resources GP, LLC, Oxford Mining Company,
LLC and Oxford Mining Company — Kentucky, LLC.
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4.
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Letter dated May 12, 2010 for
Equipment Lease Payoff/Termination and Equipment Purchase
Transaction
, and the related
Agreement Regarding Equipment Lease and Related Equipment
Transaction Purchase Amount Form
dated June 30, 2010, executed by Komatsu Financial Limited
Partnership in favor of Oxford Resource Partners, LP, Oxford Resources GP, LLC, Oxford
Mining Company, LLC and Oxford Mining Company — Kentucky, LLC.
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5.
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Letter dated June 29, 2010 for
Payoff Calculation and Payoff Transaction
executed by
Sovereign Bank in favor of Oxford Resource Partners, LP and Oxford Mining Company, LLC.
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6.
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Letter agreement dated June 2, 2010 for
Lease Payoff/Termination and Equipment Purchase
Transaction
between Marquette Equipment Finance, LLC, Oxford Resource Partners, LP and
Oxford Mining Company, LLC.
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Schedule 4
EXHIBIT A
LOCK-UP LETTER AGREEMENT
Barclays Capital Inc.
Citigroup Global Markets Inc.
As
Representatives of the several Underwriters
named in Schedule 1 to the Underwriting Agreement
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
The undersigned understands that you and certain other firms (the “
Underwriters
”) propose to
enter into an Underwriting Agreement (the “
Underwriting Agreement
”) providing for the purchase by
the Underwriters of common units (the “
Common Units
”) representing limited partner interests in
Oxford Resource Partners, LP, a Delaware limited partnership (the “
Partnership
”), and that the
Underwriters propose to reoffer the Common Units to the public (the “
Offering
”).
In consideration of the execution of the Underwriting Agreement by the Underwriters, and for
other good and valuable consideration, the undersigned hereby irrevocably agrees that, without the
prior written consent of Barclays Capital Inc. and Citigroup Global Markets Inc., on behalf of the
Underwriters, the undersigned will not, directly or indirectly, (1) offer for sale, sell, pledge,
or otherwise dispose of (or enter into any transaction or device that is designed to, or could be
expected to, result in the disposition by any person at any time in the future of) any Common Units
(including, without limitation, Common Units that may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the Securities and Exchange Commission
and Common Units that may be issued upon exercise of any options or warrants) or securities
convertible into or exercisable or exchangeable for Common Units, except for transfers of Common
Units (i) to an affiliate or (ii) as a bona fide gift (provided that in the case of any such
transfer (A) the transferee or donee shall execute and deliver a lock-up letter agreement
substantially in the form of this lock-up letter agreement and (B) no filing under Section 16(a) of
the Securities Exchange Act of 1934, as amended, reporting a reduction in beneficial ownership of
Common Units, shall be required or voluntarily made during the Lock-Up Period (as defined below)),
(2) enter into any swap or other derivatives transaction that transfers to another, in whole or in
part, any of the economic benefits or risks of ownership of the Common Units, whether any such
transaction described in clause (1) or (2)
above is to be settled by delivery of Common Units or other securities, in cash or otherwise,
(3) make any demand for or exercise any right or cause to be filed a registration statement,
including any amendments thereto, with respect to the registration of any Common Units or
securities convertible into or exercisable or exchangeable for Common Units or any other securities
of the Partnership or (4) publicly disclose the intention to do any of the foregoing, for a period
commencing on the date hereof and ending on the 180th day after the date of the Prospectus relating
to the Offering (such 180-day period, the “
Lock-Up Period
”).
Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the
Partnership issues an earnings release or material news or a material event relating to the
Partnership occurs or (2) prior to the expiration of the Lock-Up Period, the Partnership announces
that it will release earnings results during the 16-day period beginning on the last day of the
Lock-Up Period, then the restrictions imposed by this Lock-Up Letter Agreement shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the earnings release
or the announcement of the material news or the occurrence of the material event, unless the
Representatives waive such extension in writing. The undersigned hereby further agrees that, prior
to engaging in any transaction or taking any other action that is subject to the terms of this
Lock-Up Letter Agreement during the period from the date of this Lock-Up Letter Agreement to and
including the 34th day following the expiration of the Lock-Up Period, the undersigned will give
notice thereof to the Partnership and will not consummate such transaction or take any such action
unless the undersigned has received written confirmation from the Partnership that the Lock-Up
Period (as such may have been extended pursuant to this paragraph) has expired.
In furtherance of the foregoing, the Partnership and its transfer agent are hereby authorized
to decline to make any transfer of securities if such transfer would constitute a violation or
breach of this Lock-Up Letter Agreement.
It is understood that, if the Partnership notifies the Underwriters that it does not intend to
proceed with the Offering, if the Underwriting Agreement does not become effective, or if the
Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Units, the undersigned shall be
released from any obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Partnership and the Underwriters will proceed with the
Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of factors, including market
conditions. The Offering will only be made pursuant to an Underwriting Agreement, the terms of
which are subject to negotiation between the Partnership and the Underwriters.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will
execute any additional documents necessary in connection with the enforcement hereof. Any
obligations of the undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
A-2
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will
execute any additional documents necessary in connection with the enforcement hereof. Any
obligations of the undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
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Very truly yours,
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By:
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Name:
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Dated:
, 2010
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Title:
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A-3
Exhibit 3.1
Execution Version
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
OXFORD RESOURCE PARTNERS, LP
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS
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1
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Section 1.1
Definitions
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1
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ARTICLE II ORGANIZATION
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19
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Section 2.1
Formation
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19
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Section 2.2
Name
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19
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Section 2.3
Registered Office; Registered Agent; Principal Office; Other Offices
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19
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Section 2.4
Purpose and Business
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20
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Section 2.5
Powers
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20
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Section 2.6
Term
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20
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Section 2.7
Title to Partnership Assets
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20
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ARTICLE III RIGHTS OF LIMITED PARTNERS
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21
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Section 3.3
Outside Activities of the Limited Partners
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21
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Section 3.4
Rights of Limited Partners
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21
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ARTICLE IV CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS; REDEMPTION OF PARTNERSHIP INTERESTS
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22
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Section 4.1
Certificates
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22
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Section 4.2
Mutilated, Destroyed, Lost or Stolen Certificates
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22
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Section 4.3
Record Holders
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23
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Section 4.4
Transfer Generally
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23
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Section 4.5
Registration and Transfer of Limited Partner Interests
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23
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Section 4.6
Transfer of the General Partner’s General Partner Interest
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24
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Section 4.7
Transfer of Incentive Distribution Rights
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25
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Section 4.8
Restrictions on Transfers
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25
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Section 4.9
Citizenship Certificates; Non-citizen Assignees
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26
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Section 4.10
Redemption of Partnership Interests of Non-citizen
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26
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ARTICLE V CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS
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27
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Section 5.1
Intentionally Omitted
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27
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Section 5.2
Contributions by the General Partner and the Initial Limited Partners
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28
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Section 5.3
Contributions by Limited Partners
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28
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Section 5.4
Interest and Withdrawal of Capital Contributions
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28
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Section 5.5
Capital Accounts
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28
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Section 5.6
Issuances of Additional Partnership Securities
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30
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Section 5.7
Conversion of Subordinated Units
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31
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Section 5.8
Limited Preemptive Right
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32
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Section 5.9
Splits and Combinations
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32
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Section 5.10
Fully Paid and Non-Assessable Nature of Limited Partner Interests
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33
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Section 5.11
Issuance of Common Units in Connection with Reset of Incentive Distribution Rights
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33
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ARTICLE VI ALLOCATIONS AND DISTRIBUTIONS
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34
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Section 6.1
Allocations for Capital Account Purposes
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34
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Section 6.2
Allocations for Tax Purposes
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40
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Section 6.3
Requirement and Characterization of Distributions; Distributions to Record Holders
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42
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i
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Section 6.4
Distributions of IPO Proceeds, Credit Facility Proceeds and Available Cash from Operating Surplus
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42
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Section 6.5
Distributions of Available Cash from Capital Surplus
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44
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Section 6.6
Adjustment of Minimum Quarterly Distribution and Target Distribution Levels
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44
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Section 6.7
Special Provisions Relating to the Holders of Subordinated Units
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45
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Section 6.8
Special Provisions Relating to the Holders of Incentive Distribution Rights
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45
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Section 6.9
Entity-Level Taxation
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45
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ARTICLE VII MANAGEMENT AND OPERATION OF BUSINESS
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46
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Section 7.1
Management
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46
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Section 7.2
Certificate of Limited Partnership
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47
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Section 7.3
Restrictions on the General Partner’s Authority
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48
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Section 7.4
Reimbursement of the General Partner
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48
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Section 7.5
Outside Activities
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49
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Section 7.6
Loans from the General Partner; Loans or Contributions from the Partnership or Group Members
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50
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Section 7.7
Indemnification
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50
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Section 7.8
Liability of Indemnitees
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51
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Section 7.9
Resolution of Conflicts of Interest; Standards of Conduct and Modification of Duties
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52
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Section 7.10
Other Matters Concerning the General Partner
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53
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Section 7.11
Purchase or Sale of Partnership Securities
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53
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Section 7.12
Registration Rights of the General Partner and its Affiliates
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54
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Section 7.13
Reliance by Third Parties
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56
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ARTICLE VIII BOOKS, RECORDS, ACCOUNTING AND REPORTS
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56
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Section 8.1
Records and Accounting
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56
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Section 8.2
Fiscal Year
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57
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Section 8.3
Reports
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57
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ARTICLE IX TAX MATTERS
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57
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Section 9.1
Tax Returns and Information
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57
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Section 9.2
Tax Elections
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57
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Section 9.3
Tax Controversies
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58
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Section 9.4
Withholding
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58
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ARTICLE X ADMISSION OF PARTNERS
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58
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Section 10.1
Admission of Limited Partners
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58
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Section 10.2
Admission of Successor or Additional General Partner
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59
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Section 10.3
Amendment of Agreement and Certificate of Limited Partnership
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59
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ARTICLE XI WITHDRAWAL OR REMOVAL OF PARTNERS
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59
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Section 11.1
Withdrawal of the General Partner
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59
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Section 11.2
Removal of the General Partner
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60
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Section 11.3
Interest of Departing General Partner and Successor General Partner
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61
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Section 11.4
Termination of Subordination Period, Conversion of Subordinated Units and Extinguishment of Cumulative
Common Unit Arrearages
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62
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Section 11.5
Withdrawal of Limited Partners
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62
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ARTICLE XII DISSOLUTION AND LIQUIDATION
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62
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Section 12.1
Dissolution
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62
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Section 12.2
Continuation of the Business of the Partnership After Dissolution
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63
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ii
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Section 12.3
Liquidator
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63
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Section 12.4
Liquidation
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63
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Section 12.5
Cancellation of Certificate of Limited Partnership
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64
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Section 12.6
Return of Contributions
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64
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Section 12.7
Waiver of Partition
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64
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Section 12.8
Capital Account Restoration
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64
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ARTICLE XIII AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE
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65
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Section 13.1
Amendments to be Adopted Solely by the General Partner
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65
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Section 13.2
Amendment Procedures
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66
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Section 13.3
Amendment Requirements
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66
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Section 13.4
Special Meetings
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67
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Section 13.5
Notice of a Meeting
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67
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Section 13.6
Record Date
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67
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Section 13.7
Adjournment
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67
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Section 13.8
Waiver of Notice; Approval of Meeting
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68
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Section 13.9
Quorum and Voting
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68
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Section 13.10
Conduct of a Meeting
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68
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Section 13.11
Action Without a Meeting
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68
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Section 13.12
Right to Vote and Related Matters
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69
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ARTICLE XIV MERGER, CONSOLIDATION OR CONVERSION
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69
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Section 14.1
Authority
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69
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Section 14.2
Procedure for Merger, Consolidation or Conversion
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69
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Section 14.3
Approval by Limited Partners
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71
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Section 14.4
Certificate of Merger
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72
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Section 14.5
Effect of Merger, Consolidation or Conversion
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72
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ARTICLE XV RIGHT TO ACQUIRE LIMITED PARTNER INTERESTS
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73
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Section 15.1
Right to Acquire Limited Partner Interests
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73
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ARTICLE XVI GENERAL PROVISIONS
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74
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Section 16.1
Addresses and Notices; Written Communications
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74
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Section 16.2
Further Action
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74
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Section 16.3
Binding Effect
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74
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Section 16.4
Integration
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74
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Section 16.5
Creditors
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74
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Section 16.6
Waiver
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75
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Section 16.7
Third-Party Beneficiaries
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75
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Section 16.8
Counterparts
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75
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Section 16.9
Applicable Law; Forum, Venue and Jurisdiction
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75
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Section 16.10
Invalidity of Provisions
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76
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Section 16.11
Consent of Partners
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76
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Section 16.12
Facsimile Signatures
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76
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Section 16.13
Provisions Regarding Effective Time
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76
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ARTICLE XVII CERTAIN TRANSACTIONS IN CONNECTION WITH THE INITIAL PUBLIC OFFERING
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76
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Section 17.1
Non-Pro Rata Redemption of Common Units
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76
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iii
THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF OXFORD RESOURCE PARTNERS, LP
THIS THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF OXFORD RESOURCE PARTNERS,
LP, dated as of July 19, 2010, is by and among Oxford Resources GP, LLC, a Delaware limited
liability company, as the General Partner, and AIM Oxford, C&T Coal and any other Persons who now
are or hereafter become Partners in the Partnership or parties hereto as provided herein.
WHEREAS, the General Partner, AIM Oxford and C&T Coal entered into that certain First Amended
and Restated Agreement of Limited Partnership dated as of August 24, 2007 (the “First A/R
Partnership Agreement”);
WHEREAS, the General Partner approved that certain Second Amended and Restated Agreement of
Limited Partnership dated as of August 28, 2009 (the “Second A/R Partnership Agreement”) pursuant
to Section 13.1(h) of the First A/R Partnership Agreement;
WHEREAS, in connection with the Initial Public Offering by the Partnership, the Board of
Directors of the General Partner deems it necessary and appropriate to amend and restate the Second
A/R Partnership Agreement to provide for certain amendments in connection with the Initial Public
Offering; and
WHEREAS, pursuant to Article XIII of the Second A/R Partnership Agreement, the Second A/R
Partnership Agreement has been amended with the approval of the General Partner, the holders of at
least 90% of the Outstanding Units (as defined in the Second A/R Partnership Agreement) voting as a
single class, a majority of the Class A Common Units (as defined in the Second A/R Partnership
Agreement) and a majority of the Class B Common Units (as defined in the Second A/R Partnership
Agreement).
NOW, THEREFORE, the Second A/R Partnership Agreement is hereby amended and restated to provide
in its entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.1
Definitions
.
The following definitions shall be for all purposes, unless otherwise clearly indicated to the
contrary, applied to the terms used in this Agreement.
“
Acquisition
” means any transaction in which any Group Member acquires (through an asset
acquisition, merger, stock acquisition or other form of investment) control over all or a portion
of the assets, properties or business of another Person for the purpose of increasing the long-term
operating capacity, asset base or operating income of the Partnership Group from the operating
capacity, asset base or operating income of the Partnership Group existing immediately prior to
such transaction.
“
Additional Book Basis
” means the portion of any remaining Carrying Value of an Adjusted
Property that is attributable to positive adjustments made to such Carrying Value as a result of
Book-Up Events. For purposes of determining the extent that Carrying Value constitutes Additional
Book Basis:
(a) Any negative adjustment made to the Carrying Value of an Adjusted Property as a result of
either a Book-Down Event or a Book-Up Event shall first be deemed to offset or decrease that
portion of the Carrying Value of such Adjusted Property that is attributable to any prior positive
adjustments made thereto pursuant to a Book-Up Event or Book-Down Event.
(b) If Carrying Value that constitutes Additional Book Basis is reduced as a result of a
Book-Down Event and the Carrying Value of other property is increased as a result of such Book-Down
Event, an allocable portion of any such increase in Carrying Value shall be treated as Additional
Book Basis; provided, that the amount treated as Additional Book Basis pursuant hereto as a result
of such Book-Down Event shall not exceed the amount
1
by which the Aggregate Remaining Net Positive Adjustments after such Book-Down Event exceeds
the remaining Additional Book Basis attributable to all of the Partnership’s Adjusted Property
after such Book-Down Event (determined without regard to the application of this clause (b) to such
Book-Down Event).
“
Additional Book Basis Derivative Items
” means any Book Basis Derivative Items that are
computed with reference to Additional Book Basis. To the extent that the Additional Book Basis
attributable to all of the Partnership’s Adjusted Property as of the beginning of any taxable
period exceeds the Aggregate Remaining Net Positive Adjustments as of the beginning of such period
(the “Excess Additional Book Basis”), the Additional Book Basis Derivative Items for such period
shall be reduced by the amount that bears the same ratio to the amount of Additional Book Basis
Derivative Items determined without regard to this sentence as the Excess Additional Book Basis
bears to the Additional Book Basis as of the beginning of such period. With respect to a Disposed
of Adjusted Property, the Additional Book Basis Derivative Items shall be the amount of Additional
Book Basis taken into account in computing gain or loss from the disposition of such Disposed of
Adjusted Property.
“
Additional Limited Partner
” means a Person admitted to the Partnership as a Limited Partner
pursuant to Section 10.1(b) and who is shown as such on the books and records of the Partnership.
“
Adjusted Capital Account
” means the Capital Account maintained for each Partner as of the end
of each fiscal year of the Partnership, (a) increased by any amounts that such Partner is obligated
to restore under the standards set by Treasury Regulation Section 1.704-1(b)(2)(ii)(c) (or is
deemed obligated to restore under Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5)) and
(b) decreased by (i) the amount of all losses and deductions that, as of the end of such fiscal
year, are reasonably expected to be allocated to such Partner in subsequent years under Sections
704(e)(2) and 706(d) of the Code and Treasury Regulation Section 1.751-1(b)(2)(ii), and (ii) the
amount of all distributions that, as of the end of such fiscal year, are reasonably expected to be
made to such Partner in subsequent years in accordance with the terms of this Agreement or
otherwise to the extent they exceed offsetting increases to such Partner’s Capital Account that are
reasonably expected to occur during (or prior to) the year in which such distributions are
reasonably expected to be made (other than increases as a result of a minimum gain chargeback
pursuant to Section 6.1(d)(i) or 6.1(d)(ii)). The foregoing definition of Adjusted Capital Account
is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith. The “Adjusted Capital Account” of a Partner in respect
of a General Partner Unit, a Common Unit, a Subordinated Unit or an Incentive Distribution Right or
any other Partnership Interest shall be the amount that such Adjusted Capital Account would be if
such General Partner Unit, Common Unit, Subordinated Unit, Incentive Distribution Right or other
Partnership Interest were the only interest in the Partnership held by such Partner from and after
the date on which such General Partner Unit, Common Unit, Subordinated Unit, Incentive Distribution
Right or other Partnership Interest was first issued.
“
Adjusted Operating Surplus
” means, with respect to any period, Operating Surplus generated
with respect to such period, less (a)(i) any net increase in Working Capital Borrowings with
respect to such period and (ii) any net decrease in cash reserves for Operating Expenditures with
respect to such period not relating to an Operating Expenditure made with respect to such period,
plus (b)(i) any net decrease in Working Capital Borrowings with respect to such period, (ii) any
net decrease made in subsequent periods in cash reserves for Operating Expenditures initially
established with respect to such period to the extent such decrease results in a reduction in
Adjusted Operating Surplus in subsequent periods pursuant to clause (a)(ii) above and (iii) any net
increase in cash reserves for Operating Expenditures with respect to such period required by any
debt instrument for the repayment of principal, interest or premium. Adjusted Operating Surplus
does not include that portion of Operating Surplus included in clause (a)(i) of the definition of
Operating Surplus. Adjusted Operating Surplus includes that portion of Operating Surplus in clause
(a)(ii) of the definition of Operating Surplus only to the extent that cash is received by the
Partnership Group.
“
Adjusted Property
” means any property the Carrying Value of which has been adjusted pursuant
to Section 5.5(d)(i) or 5.5(d)(ii).
“
Affiliate
” means, with respect to any Person, any other Person that directly or indirectly
through one or more intermediaries controls, is controlled by or is under common control with, the
Person in question. As used herein, the term “control” means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of a Person, whether
through ownership of voting securities, by contract or otherwise.
2
“
Aggregate Quantity of IDR Reset Common Units
” has the meaning assigned to such term in
Section 5.11(a).
“
Aggregate Remaining Net Positive Adjustments
” means, as of the end of any taxable period, the
sum of the Remaining Net Positive Adjustments of all the Partners.
“
Agreed Allocation
” means any allocation, other than a Required Allocation, of an item of
income, gain, loss or deduction pursuant to the provisions of Section 6.1, including a Curative
Allocation (if appropriate to the context in which the term “Agreed Allocation” is used).
“
Agreed Value
” of any Contributed Property means the fair market value of such property or
other consideration at the time of contribution and, in the case of an Adjusted Property, the fair
market value of such Adjusted Property on the date of the revaluation event described in Section
5.5(d), in each case as determined by the General Partner. In making such determination, the
General Partner shall use such method as it determines to be appropriate to allocate the aggregate
Agreed Value of each Contributed Property or Adjusted Property contributed to the Partnership in a
single or integrated transaction among each separate property on a basis proportional to the fair
market value of each such Contributed Property or Adjusted Property.
“
Agreement
” means this Third Amended and Restated Agreement of Limited Partnership of Oxford
Resource Partners, LP, as it may be amended, supplemented or restated from time to time.
“
AIM Oxford
” means AIM Oxford Holdings, LLC, a Delaware limited liability company.
“
Associate
” means, when used to indicate a relationship with any Person, (a) any corporation
or organization of which such Person is a director, officer or partner or is, directly or
indirectly, the owner of 20% or more of any class of voting stock or other voting interest; (b) any
trust or other estate in which such Person has at least a 20% beneficial interest or as to which
such Person serves as trustee or in a similar fiduciary capacity; and (c) any relative or spouse of
such Person, or any relative of such spouse, who has the same principal residence as such Person.
“
Available Cash
” means, with respect to any Quarter ending prior to the Liquidation Date:
(a) the sum of (i) all cash and cash equivalents of the Partnership Group (or the Partnership
Group’s proportionate share of cash and cash equivalents in the case of Subsidiaries that are not
wholly owned) on hand at the end of such Quarter, (ii) if the General Partner so determines, all or
any portion of additional cash and cash equivalents of the Partnership Group (or the Partnership
Group’s proportionate share of cash and cash equivalents in the case of Subsidiaries that are not
wholly owned) on hand on the date of determination of Available Cash with respect to such Quarter
resulting from Working Capital Borrowings made subsequent to the end of such Quarter and (iii) all
cash and cash equivalents on hand on the date of determination of Available Cash resulting from
cash distributions received after the end of such Quarter from any Group Member’s equity interest
in any Person (other than a Subsidiary), which distributions are paid by such Person in respect of
operations conducted by such Person during such Quarter, less
(b) the amount of any cash reserves (or the Partnership’s proportionate share of cash reserves
in the case of Subsidiaries that are not wholly owned) established by the General Partner to (i)
provide for the proper conduct of the business of the Partnership Group (including reserves for
future capital expenditures and anticipated future credit needs of the Partnership Group)
subsequent to such Quarter, (ii) comply with applicable law or any loan agreement, security
agreement, mortgage, debt instrument or other agreement or obligation to which any Group Member is
a party or by which it is bound or its assets are subject or (iii) provide funds for distributions
under Section 6.4 or 6.5 in respect of any one or more of the next four Quarters; provided,
however, that the General Partner may not establish cash reserves pursuant to (iii) above if the
effect of establishing such reserves would be that the Partnership is unable to distribute the
Minimum Quarterly Distribution on all Common Units, plus any Cumulative Common Unit Arrearage on
all Common Units, with respect to such Quarter; and, provided further, that disbursements made by a
Group Member or cash reserves established, increased or reduced after the end of such Quarter but
on or before the date of determination of Available Cash with respect to such Quarter shall be
deemed to
3
have been made, established, increased or reduced, for purposes of determining Available Cash,
within such Quarter if the General Partner so determines.
Notwithstanding the foregoing, “Available Cash” with respect to the Quarter in which the
Liquidation Date occurs and any subsequent Quarter shall equal zero.
“
Board of Directors
” means the board of directors or board of managers of a corporation or
limited liability company or the board of directors or board of managers of the general partner of
a limited partnership, as applicable.
“
Book Basis Derivative Items
” means any item of income, deduction, gain or loss that is
computed with reference to the Carrying Value of an Adjusted Property (e.g., depreciation,
depletion, or gain or loss with respect to an Adjusted Property).
“
Book-Down Event
” means an event that triggers a negative adjustment to the Capital Accounts
of the Partners pursuant to Section 5.5(d).
“
Book-Tax Disparity
” means, with respect to any item of Contributed Property or Adjusted
Property, as of the date of any determination, the difference between the Carrying Value of such
Contributed Property or Adjusted Property and the adjusted basis thereof for federal income tax
purposes as of such date. A Partner’s share of the Partnership’s Book-Tax Disparities in all of its
Contributed Property and Adjusted Property will be reflected by the difference between such
Partner’s Capital Account balance as maintained pursuant to Section 5.5 and the hypothetical
balance of such Partner’s Capital Account computed as if it had been maintained strictly in
accordance with federal income tax accounting principles.
“
Book-Up Event
” means an event that triggers a positive adjustment to the Capital Accounts of
the Partners pursuant to Section 5.5(d).
“
Business Day
” means Monday through Friday of each week, except that a legal holiday
recognized as such by the government of the United States of America or the State of Ohio shall not
be regarded as a Business Day.
“
C&T Coal
” means C&T Coal, Inc., an Ohio corporation.
“
Capital Account
” means the capital account maintained for a Partner pursuant to Section 5.5.
The “Capital Account” of a Partner in respect of a General Partner Unit, a Common Unit, a
Subordinated Unit, an Incentive Distribution Right or any other Partnership Interest shall be the
amount that such Capital Account would be if such General Partner Unit, Common Unit, Subordinated
Unit, Incentive Distribution Right or other Partnership Interest were the only interest in the
Partnership held by such Partner from and after the date on which such General Partner Unit, Common
Unit, Subordinated Unit, Incentive Distribution Right or other Partnership Interest was first
issued.
“
Capital Contribution
” means (a) with respect to any Partner, any cash, cash equivalents or
the Net Agreed Value of Contributed Property that a Partner contributes to the Partnership
(including, in the case of an underwritten offering of Units, the amount of any underwriting
discounts or commissions) or (b) with respect to the General Partner only, (i) distributions of
cash that the General Partner is entitled to receive but otherwise waives such that the Partnership
retains such cash or (ii) Common Units that the General Partner contributes to the Partnership.
“
Capital Improvement
” means any (a) addition or improvement to the capital assets owned by any
Group Member, (b) acquisition of existing, or the construction of new or the improvement or
replacement of existing, capital assets (including, without limitation, coal mines and related
assets) or (c) capital contributions by a Group Member to a Person that is not a Subsidiary in
which a Group Member has an equity interest to fund such Group Member’s pro rata share of the cost
of the addition or improvement to or the acquisition of existing, or the construction of new, or
the improvement or replacement of existing, capital assets by such Person, in each case if such
addition, improvement, replacement, acquisition or construction is made to increase the long-term
operating capacity, asset base or operating income of the Partnership Group, in the case of clauses
(a) and (b), or such Person, in the case of clause (c), from the operating capacity, asset base or
operating income of the Partnership Group or
4
such Person, as the case may be, existing immediately prior to such addition, improvement,
replacement, acquisition or construction.
“
Capital Surplus
” has the meaning assigned to such term in Section 6.3(a).
“
Carrying Value
” means (a) with respect to a Contributed Property or Adjusted Property, the
Agreed Value of such property reduced (but not below zero) by all depreciation, amortization and
cost recovery deductions charged to the Partners’ Capital Accounts in respect of such Contributed
Property and (b) with respect to any other Partnership property, the adjusted basis of such
property for federal income tax purposes, all as of the time of determination;
provided,
that the
Carrying Value of any property shall be adjusted from time to time in accordance with Sections
5.5(d)(i) and 5.5(d)(ii) and to reflect changes, additions or other adjustments to the Carrying
Value for dispositions and acquisitions of Partnership properties, as deemed appropriate by the
General Partner.
“
Cause
” means a court of competent jurisdiction has entered a final, non-appealable judgment
finding the General Partner liable for actual fraud or willful misconduct in its capacity as a
general partner of the Partnership.
“
Certificate
” means (a) a certificate (i) substantially in the form of Exhibit A to the First
A/R Partnership Agreement (if such certificate was issued prior to August 28, 2009), substantially
in the form of Exhibit A to the Second A/R Partnership Agreement (if such certificate was issued on
or after August 28, 2009 and prior to the date hereof) or substantially in the form of Exhibit A to
this Agreement (if such certificate is issued on or after the date hereof), (ii) issued in global
form in accordance with the rules and regulations of the Depositary or (iii) in such other form as
may be adopted by the General Partner, issued by the Partnership evidencing ownership of one or
more Common Units or (b) a certificate, in such form as may be adopted by the General Partner,
issued by the Partnership evidencing ownership of one or more other Partnership Securities.
“
Certificate of Limited Partnership
” means the Certificate of Limited Partnership of the
Partnership filed with the Secretary of State of the State of Delaware as referenced in Section
7.2, as such Certificate of Limited Partnership may be amended, supplemented or restated from time
to time.
“
Citizenship Certification
” means a properly completed certificate in such form as may be
specified by the General Partner by which a Limited Partner certifies that he (and if he is a
nominee holding for the account of another Person, that to the best of his knowledge such other
Person) is an Eligible Citizen.
“
claim
” (as used in Section 7.12(d)) has the meaning assigned to such term in Section 7.12(d).
“
Closing Price
” means, in respect of any class of Limited Partner Interests, as of the date of
determination, the last sale price on such day, regular way, or in case no such sale takes place on
such day, the average of the closing bid and asked prices on such day, regular way, as reported in
the principal consolidated transaction reporting system with respect to securities listed on the
principal National Securities Exchange on which the respective Limited Partner Interests are listed
or admitted to trading or, if such Limited Partner Interests are not listed or admitted to trading
on any National Securities Exchange, the last quoted price on such day or, if not so quoted, the
average of the high bid and low asked prices on such day in the over-the-counter market, as
reported by the primary reporting system then in use in relation to such Limited Partner Interests
of such class, or, if on any such day such Limited Partner Interests of such class are not quoted
by any such organization, the average of the closing bid and asked prices on such day as furnished
by a professional market maker making a market in such Limited Partner Interests of such class
selected by the General Partner, or if on any such day no market maker is making a market in such
Limited Partner Interests of such class, the fair value of such Limited Partner Interests on such
day as determined by the General Partner.
“
Code
” means the Internal Revenue Code of 1986, as amended and in effect from time to time.
Any reference herein to a specific section or sections of the Code shall be deemed to include a
reference to any corresponding provision of any successor law.
“
Combined Interest
” has the meaning assigned to such term in Section 11.3(a).
5
“
Commences Commercial Service
” means the date on which a Capital Improvement is first placed
into commercial service following completion of construction, acquisition, development and testing,
as applicable.
“
Commission
” means the United States Securities and Exchange Commission or any successor
agency having jurisdiction under the Securities Act.
“
Commodity Hedge Contract
” means any commodity exchange, swap, forward, cap, floor, collar or
other similar agreement or arrangement entered into for the purpose of hedging the Partnership
Group’s exposure to fluctuations in the price of coal or other hydrocarbons in its operations and
not for speculative purposes.
“
Common Unit
” means a Partnership Security representing a fractional part of the Partnership
Interests of all Limited Partners and having the rights and obligations specified with respect to a
Common Unit in this Agreement. Prior to the IPO Closing Date, the Common Units were designated as
“Class A Common Units.” Simultaneously with the effectiveness of this Agreement, the “Class A
Common Units” are hereby redesignated as “Common Units.”
“
Common Unit Arrearage
” means, with respect to any Common Unit, whenever issued, as to any
Quarter within the Subordination Period, the excess, if any, of (a) the Minimum Quarterly
Distribution with respect to a Common Unit in respect of such Quarter over (b) the sum of all
Available Cash distributed with respect to a Common Unit in respect of such Quarter pursuant to
Section 6.4(b)(i)(A).
“
Conflicts Committee
” means any committee of the Board of Directors of the General Partner
that is designated as a “Conflicts Committee” and that is composed entirely of one or more
Independent Directors.
“
Contributed Property
” means each property or other asset, in such form as may be permitted by
the Delaware Act, but excluding cash, contributed to the Partnership. Once the Carrying Value of a
Contributed Property is adjusted pursuant to Section 5.5(d), such property shall no longer
constitute a Contributed Property, but shall be deemed an Adjusted Property.
“
Contribution Agreement
” means that certain Contribution and Sale Agreement, dated as of the
Contribution Agreement Closing Date, among C&T Coal, the General Partner, the Partnership, AIM
Oxford, Charles C. Ungurean and Thomas T. Ungurean, together with the additional conveyance
documents and instruments contemplated or referenced thereunder, as such may be amended,
supplemented or restated from time to time.
“
Contribution Agreement Closing Date
” means August 24, 2007.
“
Credit Facility Proceeds
” means the portion of the net proceeds of the Partnership’s
borrowings made simultaneously with the closing of the Initial Public Offering under its new credit
facility that, according to the disclosure set forth in the section of the Registration Statement
entitled “Use of Proceeds,” are to be distributed to the Non-Taxable Partners.
“
Cumulative Common Unit Arrearage
” means, with respect to any Common Unit, whenever issued,
and as of the end of any Quarter, the excess, if any, of (a) the sum of the Common Unit Arrearage
as to an Initial Common Unit for each of the Quarters within the Subordination Period ending on or
before the last day of such Quarter over (b) the sum of any distributions theretofore made pursuant
to Section 6.4(b)(i)(A) and Section 6.5(b) with respect to an Initial Common Unit (including any
distributions to be made in respect of the last of such Quarters).
“
Curative Allocation
” means any allocation of an item of income, gain, deduction, loss or
credit pursuant to the provisions of Section 6.1(d)(xi).
“
Current Market Price
” means, in respect of any class of Limited Partner Interests, as of the
date of determination, the average of the daily Closing Prices per Limited Partner Interest of such
class for the 20 consecutive Trading Days immediately prior to such date.
6
“
Delaware Act
” means the Delaware Revised Uniform Limited Partnership Act, 6 Del C. Section
17-101, et seq., as amended, supplemented or restated from time to time, and any successor to such
statute.
“
Departing General Partner
” means a former general partner from and after the effective date
of any withdrawal or removal of such former general partner pursuant to Section 11.1 or Section
11.2.
“
Depositary
” means, with respect to any Units issued in global form, The Depository Trust
Company and its successors and permitted assigns.
“
Disposed of Adjusted Property
” has the meaning assigned to such term in Section
6.1(d)(xii)(B).
“
Economic Risk of Loss
” has the meaning set forth in Treasury Regulation Section 1.752-2(a).
“
Eligible Citizen
” means a Person qualified to own interests in real property in jurisdictions
in which any Group Member does business or proposes to do business from time to time, and whose
status as a Limited Partner the General Partner determines does not or would not subject such Group
Member to a significant risk of cancellation or forfeiture of any of its properties or any interest
therein.
“
Employee/Director Unitholders
” means the employees and directors of the General Partner who
hold Common Units.
“
Estimated Incremental Quarterly Tax Amount
” has the meaning assigned to such term in Section
6.9.
“Estimated Reserve Replacement Expenditures”
means an estimate made by the Board of Directors
of the General Partner (subject to Special Approval) of the average quarterly Reserve Replacement
Expenditures that the Partnership Group will incur over the long term. In the case of Subsidiaries
that are not wholly owned by the Partnership, such estimate shall include the Partnership’s
proportionate share of the average quarterly Reserve Replacement Expenditures that such Subsidiary
will incur over the long term. Beginning after the IPO Closing Date, the estimate will be made
annually and whenever an event occurs that is likely to result in a material adjustment to the
amount of Reserve Replacement Expenditures over the long term. The Partnership shall disclose to
its Partners any change in the amount of Estimated Reserve Replacement Expenditures in its reports
made in accordance with Section 8.3 to the extent not previously disclosed. Except as provided in
the definition of Subordination Period, any adjustments to Estimated Reserve Replacement
Expenditures shall be prospective only.
“
Event of Withdrawal
” has the meaning assigned to such term in Section 11.1(a).
“
Excess Additional Book Basis
” (as used in the definition of Additional Book Basis Derivative
Items) has the meaning assigned to such term in the definition of Additional Book Basis Derivative
Items.
“
Expansion Capital Expenditures
” means cash expenditures for Acquisitions or Capital
Improvements, and shall not include Maintenance Capital Expenditures or Investment Capital
Expenditures. Expansion Capital Expenditures shall include interest payments (and related fees) on
debt incurred to finance the construction, acquisition or development of a Capital Improvement and
paid in respect of the period beginning on the date that a Group Member enters into a binding
obligation to commence construction, acquisition or development of a Capital Improvement and ending
on the earlier to occur of the date that such Capital Improvement Commences Commercial Service and
the date that such Capital Improvement is abandoned or disposed of. Debt incurred to fund such
interest payments or to fund distributions on equity issued (including incremental Incentive
Distributions related thereto) to fund the construction, acquisition or development of a Capital
Improvement as described in clause (a)(v) of the definition of Operating Surplus shall also be
deemed to be debt incurred to finance the construction, acquisition or development of a Capital
Improvement. Where capital expenditures are made in part for Expansion Capital Expenditures and in
part for other purposes, the General Partner shall determine the allocation between the amounts
paid for each.
“
Final Subordinated Units
” has the meaning assigned to such term in Section 6.1(d)(x)(A).
7
“
First A/R Partnership Agreement
” has the meaning assigned to such term in the recitals to
this Agreement.
“
First Liquidation Target Amount
” has the meaning assigned to such term in Section
6.1(c)(i)(D).
“
First Target Distribution
” means $0.5031 per Unit (or, with respect to the Quarter which
includes the IPO Closing Date, it means the product of $0.5031 multiplied by a fraction of which
the numerator is the number of days in such Quarter after the IPO Closing Date, and of which the
denominator is the total number of days in such Quarter), subject to adjustment in accordance with
Sections 5.11, 6.6 and 6.9.
“
Fully Diluted Basis
” means, when calculating the number of Outstanding Units for any period,
a basis that includes, in addition to the Outstanding Units, all Partnership Securities and
options, rights, warrants and appreciation rights relating to an equity interest in the Partnership
(a) that are convertible into or exercisable or exchangeable for Units that are senior to or pari
passu with the Subordinated Units, (b) whose conversion, exercise or exchange price is less than
the Current Market Price on the date of such calculation, (c) that may be converted into or
exercised or exchanged for such Units prior to or during the Quarter immediately following the end
of the period for which the calculation is being made without the satisfaction of any contingency
beyond the control of the holder other than the payment of consideration and the compliance with
administrative mechanics applicable to such conversion, exercise or exchange and (d) that were not
converted into or exercised or exchanged for such Units during the period for which the calculation
is being made; provided, however, that for purposes of determining the number of Outstanding Units
on a Fully Diluted Basis when calculating whether the Subordination Period has ended or
Subordinated Units are entitled to convert into Common Units pursuant to Section 5.7, such
Partnership Securities, options, rights, warrants and appreciation rights shall be deemed to have
been Outstanding Units only for the four Quarters that comprise the last four Quarters of the
measurement period; provided, further, that if consideration will be paid to any Group Member in
connection with such conversion, exercise or exchange, the number of Units to be included in such
calculation shall be that number equal to the difference between (i) the number of Units issuable
upon such conversion, exercise or exchange and (ii) the number of Units that such consideration
would purchase at the Current Market Price.
“
General Partner
” means Oxford Resources GP, and its successors and permitted assigns that are
admitted to the Partnership as general partner of the Partnership, in its capacity as general
partner of the Partnership (except as the context otherwise requires).
“
General Partner Interest
” means the ownership interest of the General Partner in the
Partnership (in its capacity as a general partner without reference to any Limited Partner Interest
held by it), which is evidenced by General Partner Units, and includes any and all benefits to
which the General Partner is entitled as provided in this Agreement, together with all obligations
of the General Partner to comply with the terms and provisions of this Agreement.
“
General Partner Unit
” means a fractional part of the General Partner Interest having the
rights and obligations specified with respect to the General Partner Interest. A General Partner
Unit is not a Unit.
“
Gross Liability Value
” means, with respect to any Liability of the Partnership described in
Treasury Regulation Section 1.752-7(b)(3)(i), the amount of cash that a willing assignor would pay
to a willing assignee to assume such Liability in an arm’s-length transaction. The Gross Liability
Value of each Liability of the Partnership described in Treasury Regulation Section
1.752-7(b)(3)(i) shall be adjusted at such times as provided in this Agreement for an adjustment to
Carrying Values.
“
Group
” means a Person that with or through any of its Affiliates or Associates has any
contract, arrangement, understanding or relationship for the purpose of acquiring, holding, voting
(except voting pursuant to a revocable proxy or consent given to such Person in response to a proxy
or consent solicitation made to 10 or more Persons), exercising investment power or disposing of
any Partnership Interests with any other Person that beneficially owns, or whose Affiliates or
Associates beneficially own, directly or indirectly, Partnership Interests.
“
Group Member
” means a member of the Partnership Group.
8
“
Group Member Agreement
” means the partnership agreement of any Group Member, other than the
Partnership, that is a limited or general partnership, the limited liability company agreement of
any Group Member that is a limited liability company, the certificate of incorporation and bylaws
or similar organizational documents of any Group Member that is a corporation, the joint venture
agreement or similar governing document of any Group Member that is a joint venture and the
governing or organizational or similar documents of any other Group Member that is a Person other
than a limited or general partnership, limited liability company, corporation or joint venture, as
such may be amended, supplemented or restated from time to time.
“
Hedge Contract
” means any Commodity Hedge Contract or Interest Rate Hedge Contract.
“
Holder
” as used in Section 7.12, has the meaning assigned to such term in Section 7.12(a).
“
IDR Reset Common Unit
” has the meaning assigned to such term in Section 5.11(a).
“
IDR Reset Election
” has the meaning assigned to such term in Section 5.11(a).
“
Incentive Distribution Right
” means a non-voting Limited Partner Interest, initially issued
to Oxford Resources GP, which Limited Partner Interest will confer upon the holder thereof only the
rights and obligations specifically provided in this Agreement with respect to Incentive
Distribution Rights (and no other rights otherwise available to or other obligations of a holder of
a Partnership Interest). Notwithstanding anything in this Agreement to the contrary, the holder of
an Incentive Distribution Right shall not be entitled to vote such Incentive Distribution Right on
any Partnership matter except as may otherwise be required by law.
“
Incentive Distributions
” means any amount of cash distributed to the holders of the Incentive
Distribution Rights pursuant to Sections 6.4(b)(i)(E), (F) and (G) and 6.4(b)(ii)(C), (D) and (E).
“
Incremental Income Taxes
” has the meaning assigned to such term in Section 6.9.
“
Indemnified Persons
” has the meaning assigned to such term in Section 7.12(d).
“
Indemnitee
” means (a) the General Partner, (b) any Departing General Partner, (c) any Person
who is or was an Affiliate of the General Partner or any Departing General Partner, (d) any Person
who is or was a member, partner, director, manager, officer, fiduciary or trustee of any Group
Member (other than any Person who is or was a Limited Partner of the Partnership in such Person’s
capacity as such), the general partner or any departing general partner or any Affiliate of any
Group Member, the General Partner or any Departing General Partner, (e) any Person who is or was
serving at the request of the General Partner or any Departing General Partner or any Affiliate of
the General Partner or any Departing General Partner as an officer, director, manager, member,
partner, fiduciary or trustee of another Person; provided that a Person shall not be an Indemnitee
by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, and
(f) any Person the General Partner designates as an “Indemnitee” for purposes of this Agreement.
“
Independent Director
” means any director that (a) is not a security holder, officer or
employee of the General Partner, (b) is not an officer, director or employee of any Affiliate of
the General Partner, (c) is not a holder of any ownership interest in the Partnership Group other
than Common Units and (d) meets the independence standards required of directors who serve on an
audit committee of a board of directors established by the Securities Exchange Act and the rules
and regulations of the Commission thereunder and by any National Securities Exchange on which the
Common Units are listed or admitted to trading.
“
Initial Common Unit
” means a Common Unit issued in the Initial Public Offering.
“
Initial Limited Partners
” means each of AIM Oxford, C&T Coal and Oxford Resources GP (with
respect to the Incentive Distribution Rights it holds.
9
“
Initial Public Offering
” means the initial public offering of Common Units by the
Partnership, as described in the Registration Statement, including any Common Units issued pursuant
to the exercise of the Over-Allotment Option.
“
Initial Unit Price
” means (a) with respect to the Common Units and the Subordinated Units,
the IPO Price, or (b) with respect to any other class or series of Units, the price per Unit at
which such class or series of Units is initially issued by the Partnership, as determined by the
General Partner, in each case adjusted as the General Partner determines to be appropriate to give
effect to any distribution, subdivision or combination of Units.
“
Interest Rate Hedge Contract
” means any interest rate exchange, swap, forward, cap, floor
collar or other similar agreement or arrangement entered into for the purpose of reducing the
exposure of the Partnership Group to fluctuations in interest rates in their financing activities
and not for speculative purposes.
“
Interim Capital Transactions
” means the following transactions if they occur prior to the
Liquidation Date: (a) borrowings, refinancings or refundings of indebtedness, (other than (i) for
items purchased on open account in the ordinary course of business or (ii) Working Capital
Borrowings) by any Group Member and sales of debt securities of any Group Member; (b) sales of
equity interests of any Group Member; (c) sales or other voluntary or involuntary dispositions of
any assets of any Group Member other than (i) sales or other dispositions of inventory, accounts
receivable and other assets in the ordinary course of business, and (ii) sales or other
dispositions of assets as part of normal retirements or replacements; (d) the termination of Hedge
Contracts prior to the termination date specified therein; (e) capital contributions received; or
(f) corporate reorganizations or restructurings.
“
Investment Capital Expenditures
” means capital expenditures other than Maintenance Capital
Expenditures and Expansion Capital Expenditures.
“
Investors’ Rights Agreement
” means the Investors’ Rights Agreement, dated as of the
Contribution Agreement Closing Date, by and among the Partnership, the General Partner, C&T Coal,
Charles C. Ungurean and Thomas T. Ungurean.
“
IPO Closing Date
” means the closing date of the sale of Common Units in the Initial Public
Offering.
“
IPO Price
” means the price per Common Unit at which the Underwriters offer the Common Units
for sale to the public as set forth on the cover page of the final prospectus filed pursuant to
Rule 424(b) of the rules and regulations of the Commission with respect to the Initial Public
Offering.
“
IPO Proceeds
” means the portion of the net proceeds received by the Partnership from the
issuance and sale on the IPO Closing Date of Common Units in the Initial Public Offering that,
according to the disclosure set forth in the section of the Registration Statement entitled “Use of
Proceeds,” are to be distributed to the Taxable Partners.
“
Liability
” means any liability or obligation of any nature, whether accrued, contingent or
otherwise.
“
Limited Partner
” means, unless the context otherwise requires, (a) the Organizational Limited
Partner prior to its withdrawal from the Partnership, each Initial Limited Partner, each Additional
Limited Partner and any Departing General Partner upon the change of its status from General
Partner to Limited Partner pursuant to Section 11.3, in each case, in such Person’s capacity as
limited partner of the Partnership; provided, however, that when the term “Limited Partner” is used
herein in the context of any vote or other approval, including Articles XIII and XIV, such term
shall not, solely for such purpose, include any holder of an Incentive Distribution Right (solely
with respect to its Incentive Distribution Rights and not with respect to any other Limited Partner
Interest held by such Person) except as may be required by law.
“
Limited Partner Interest
” means the ownership interest of a Limited Partner in the
Partnership, which may be evidenced by Common Units, Subordinated Units, Incentive Distribution
Rights or other Partnership Securities or a combination thereof or interest therein, and includes
any and all benefits to which such Limited Partner is entitled as provided in this Agreement,
together with all obligations of such Limited Partner to comply with the terms and
10
provisions of this Agreement; provided, however, that when the term “Limited Partner Interest”
is used herein in the context of any vote or other approval, including Articles XIII and XIV, such
term shall not, solely for such purpose, include any Incentive Distribution Right except as may be
required by law.
“
Limited Partner Unit
” means each of the Common Units, Subordinated Units and other Units
representing fractional parts of the Partnership Interests of all Limited Partners.
“
Liquidation Date
” means (a) in the case of an event giving rise to the dissolution of the
Partnership of the type described in clause (d) of Section 12.1 or clauses (a) and (b) of the first
sentence of Section 12.2, the date on which the applicable time period during which the holders of
Outstanding Units (or other required Persons) have the right to elect to continue the business of
the Partnership has expired without such an election being made and (b) in the case of any other
event giving rise to the dissolution of the Partnership, the date on which such event occurs.
“
Liquidator
” means one or more Persons selected by the General Partner to perform the
functions described in Section 12.4 as liquidating trustee of the Partnership within the meaning of
the Delaware Act.
“
Maintenance Capital Expenditures
” means cash expenditures (including expenditures for the
addition or improvement to, or the replacement of, the capital assets owned by any Group Member or
for the acquisition of existing, or the construction or development of new, capital assets) if such
expenditures are made to maintain, including over the long term, the operating capacity, asset base
or operating income of the Partnership Group. Maintenance Capital Expenditures consist of Reserve
Replacement Expenditures and Other Maintenance Capital Expenditures. Maintenance Capital
Expenditures shall not include Expansion Capital Expenditures or Investment Capital Expenditures.
Where Maintenance Capital Expenditures are made in part for Reserve Replacement Expenditures and in
part for Other Maintenance Capital Expenditures, the General Partner shall determine the allocation
for amounts paid for each.
“
Merger Agreement
” has the meaning assigned to such term in Section 14.1.
“
Minimum Quarterly Distribution
” means $0.4375 per Unit per Quarter (or with respect to the
Quarter which includes the IPO Closing Date, it means the product of $0.4375 multiplied by a
fraction of which the numerator is the number of days in such Quarter after the IPO Closing Date
and of which the denominator is the total number of days in such Quarter), subject to adjustment in
accordance with Section 5.11, Section 6.6 and Section 6.9.
“
National Securities Exchange
” means an exchange registered with the Commission under Section
6(a) of the Securities Exchange Act and any successor to such statute.
“
Net Agreed Value
” means (a) in the case of any Contributed Property, the Agreed Value of such
property reduced by any Liabilities either assumed by the Partnership upon such contribution or to
which such property is subject when contributed, (b) in the case of any property distributed to a
Partner by the Partnership, the Partnership’s Carrying Value of such property (as adjusted pursuant
to Section 5.5(d)(ii)) at the time such property is distributed, reduced by any Liabilities either
assumed by such Partner upon such distribution or to which such property is subject at the time of
distribution, in either case, as determined under Section 752 of the Code and (c) in the case of a
contribution of Common Units by the General Partner to the Partnership as a Capital Contribution,
an amount per Common Unit contributed equal to the Current Market Price per Common Unit as of the
date of the contribution.
“
Net Income
” means, for any taxable year, the excess, if any, of the Partnership’s items of
income and gain (other than those items taken into account in the computation of Net Termination
Gain or Net Termination Loss) for such taxable year over the Partnership’s items of loss and
deduction (other than those items taken into account in the computation of Net Termination Gain or
Net Termination Loss) for such taxable year. The items included in the calculation of Net Income
shall be determined in accordance with Section 5.5(b) and shall not include any items specially
allocated under Section 6.1(d); provided, that the determination of the items that have been
specially allocated under Section 6.1(d) shall be made as if Section 6.1(d)(xii) were not in this
Agreement.
11
“
Net Loss
” means, for any taxable year, the excess, if any, of the Partnership’s items of loss
and deduction (other than those items taken into account in the computation of Net Termination Gain
or Net Termination Loss) for such taxable year over the Partnership’s items of income and gain
(other than those items taken into account in the computation of Net Termination Gain or Net
Termination Loss) for such taxable year. The items included in the calculation of Net Loss shall be
determined in accordance with Section 5.5(b) and shall not include any items specially allocated
under Section 6.1(d); provided, that the determination of the items that have been specially
allocated under Section 6.1(d) shall be made as if Section 6.1(d)(xii) were not in this Agreement.
“
Net Positive Adjustments
” means, with respect to any Partner, the excess, if any, of the
total positive adjustments over the total negative adjustments made to the Capital Account of such
Partner pursuant to Book-Up Events and Book-Down Events.
“
Net Termination Gain
” means, for any taxable year, the sum, if positive, of all items of
income, gain, loss or deduction that are (a) recognized by the Partnership (i) after the
Liquidation Date or (ii) upon the sale, exchange or other disposition of all or substantially all
of the assets of the Partnership Group, taken as a whole, in a single transaction or a series of
related transactions (excluding any disposition to a member of the Partnership Group), or (b)
deemed recognized by the Partnership pursuant to Section 5.5(d). The items included in the
determination of Net Termination Gain shall be determined in accordance with Section 5.5(b) and
shall not include any items of income, gain or loss specially allocated under Section 6.1(d).
“
Net Termination Loss
” means, for any taxable year, the sum, if negative, of all items of
income, gain, loss or deduction that are (a) recognized by the Partnership (i) after the
Liquidation Date or (ii) upon the sale, exchange or other disposition of all or substantially all
of the assets of the Partnership Group, taken as a whole, in a single transaction or a series of
related transactions (excluding any disposition to a member of the Partnership Group), or (b)
deemed recognized by the Partnership pursuant to Section 5.5(d). The items included in the
determination of Net Termination Loss shall be determined in accordance with Section 5.5(b) and
shall not include any items of income, gain or loss specially allocated under Section 6.1(d).
“
Non-citizen Assignee
” means a Person whom the General Partner has determined does not
constitute an Eligible Citizen and as to whose Partnership Interest the General Partner has become
the substituted Limited Partner, all pursuant to Section 4.9.
“
Nonrecourse Built-in Gain
” means, with respect to any Contributed Properties or Adjusted
Properties that are subject to a mortgage or pledge securing a Nonrecourse Liability, the amount of
any taxable gain that would be allocated to the Partners pursuant to Sections 6.2(b)(i)(A),
6.2(b)(ii)(A) and 6.2(b)(iii) if such properties were disposed of in a taxable transaction in full
satisfaction of such liabilities and for no other consideration.
“
Nonrecourse Deductions
” means any and all items of loss, deduction or expenditure (including
any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the
principles of Treasury Regulation Section 1.704-2(b), are attributable to a Nonrecourse Liability.
“
Nonrecourse Liability
” has the meaning set forth in Treasury Regulation Section
1.752-1(a)(2).
“
Non-Taxable Partner
” means each of AIM Oxford and the General Partner.
“
Notice of Election to Purchase
” has the meaning assigned to such term in Section 15.1(b).
“
Operating Expenditures
” means the sum of (a) all Partnership Group Estimated Reserve
Replacement Expenditures and (b) all Partnership Group cash expenditures (or the Partnership
Group’s proportionate share of expenditures in the case of Subsidiaries that are not wholly owned),
including, but not limited to, taxes, employee and director compensation, reimbursements of
expenses of the General Partner, repayments of Working Capital Borrowings, debt service payments,
reclamation expenses, payments made in the ordinary course of business under Hedge Contracts
(provided that (i) with respect to amounts paid in connection with the initial purchase of any
Hedge Contract, such amounts shall be amortized over the life of the Hedge Contract, and (ii)
payments made in connection with the termination of any Hedge Contract prior to the expiration of
its stipulated settlement or termination date
12
shall be included in equal quarterly installments over the remaining scheduled life of such
Hedge Contract), Other Maintenance Capital Expenditures and non-Pro Rata repurchases of Partnership
Interests (other than those made with the proceeds of an Interim Capital Transaction); subject to
the following:
(i) deemed repayments of Working Capital Borrowings deducted from Operating Surplus under
clause (b)(iii) of the definition of Operating Surplus shall not constitute Operating Expenditures
when actually repaid;
(ii) payments (including prepayments and prepayment penalties) of principal of and premium on
indebtedness other than Working Capital Borrowings shall not constitute Operating Expenditures; and
(iii) Operating Expenditures shall not include (A) Expansion Capital Expenditures, (B)
Investment Capital Expenditures, (C) payment of transaction expenses (including taxes) relating to
Interim Capital Transactions, (D) distributions to Partners (including any distributions made
pursuant to Section 6.4(a)), (E) actual Reserve Replacement Expenditures, (F) Pro Rata repurchases
of Units, or reimbursement of expenses of the General Partner for such repurchases, (G) non-Pro
Rata repurchases of Partnership Interests funded with the proceeds of an Interim Capital
Transaction, or reimbursement of expenses of the General Partner for such repurchases, or (H) any
other payments made in connection with the Initial Public Offering that are described under “Use of
Proceeds” in the Registration Statement.
“
Operating Surplus
” means, with respect to any period commencing on the IPO Closing Date and
ending prior to the Liquidation Date, on a cumulative basis and without duplication,
(a) the sum of (i) $35 million, (ii) an amount equal to the aggregate amount of cash
distributed in respect of rights held by Partners entitling them to receive cash collected from
accounts receivable outstanding prior to the closing of the Initial Public Offering, (iii) all cash
receipts of the Partnership Group (or the Partnership Group’s proportionate share of cash receipts
in the case of Subsidiaries that are not wholly owned) for the period beginning on the IPO Closing
Date and ending on the last day of such period, but excluding cash receipts from Interim Capital
Transactions (except to the extent specified in Section 6.5, and provided that cash receipts from
the termination of a Hedge Contract prior to the expiration of its stipulated settlement or
termination date shall be included in Operating Surplus in equal quarterly installments over the
remaining scheduled life of such Hedge Contract), (iv) all cash receipts of the Partnership Group
after the end of such period but on or before the date of determination of Operating Surplus with
respect to such period resulting from Working Capital Borrowings and (v) the amount of cash
distributions paid (including incremental Incentive Distributions) on equity issued, other than
equity issued on the IPO Closing Date, to finance all or a portion of the construction, acquisition
or improvement of a Capital Improvement or replacement of a capital asset and paid in respect of
the period beginning on the date that the Group Member enters into a binding obligation to commence
the construction, acquisition or improvement of such Capital Improvement or replacement of such
capital asset and ending on the earlier to occur of the date such Capital Improvement or
replacement capital asset Commences Commercial Service and the date that it is abandoned or
disposed of (equity issued, other than equity issued on the IPO Closing Date, to fund interest
payments on debt incurred or distributions on equity issued, in each case during the period
described above in this clause (v), to finance the construction, acquisition or improvement of a
Capital Improvement or replacement of a capital asset shall also be deemed to be equity issued to
finance the construction, acquisition or improvement of such Capital Improvement or replacement of
such capital asset for purposes of this clause (v)); less
(b) the sum of (i) Operating Expenditures for the period beginning immediately after the IPO
Closing Date and ending on the last day of such period, (ii) the amount of cash reserves (or the
Partnership Group’s proportionate share of cash reserves in the case of Subsidiaries that are not
wholly owned) established by the General Partner to provide funds for future Operating
Expenditures; provided, however, that disbursements made (including contributions to a Group Member
or disbursements on behalf of a Group Member) or cash reserves established, increased or reduced
after the end of such period but on or before the date of determination of Available Cash with
respect to such period shall be deemed to have been made, established, increased or reduced, for
purposes of determining Operating Surplus, within such period if the General Partner so determines,
(iii) all Working Capital Borrowings not repaid within 12 months after having been incurred or
repaid within such 12-month period with the proceeds of additional Working Capital Borrowings and
(iv) any cash loss realized on disposition of an Investment Capital Expenditure.
13
Notwithstanding the foregoing, “Operating Surplus” with respect to the Quarter in which the
Liquidation Date occurs and any subsequent Quarter shall equal zero. Cash receipts from an
Investment Capital Expenditure shall be treated as cash receipts only to the extent they are a
return on principal, but in no event shall a return of principal be treated as cash receipts.
“
Opinion of Counsel
” means a written opinion of counsel (who may be regular counsel to the
Partnership or the General Partner or any of its Affiliates) acceptable to the General Partner.
“
Option Closing Date
” means the date or dates on which any Common Units are sold by the
Partnership to the Underwriters upon exercise of an Over-Allotment Option.
“
Organizational Limited Partner
” means AIM Oxford in its capacity as the organizational
limited partner of the Partnership pursuant to the original agreement of limited partnership of the
Partnership.
“Other Maintenance Capital Expenditures”
means Maintenance Capital Expenditures other than
Reserve Replacement Capital Expenditures, such as expenditures for the repair, refurbishment or
replacement of equipment.
“
Outstanding
” means, with respect to Partnership Securities, all Partnership Securities that
are issued by the Partnership and reflected as outstanding on the Partnership’s books and records
as of the date of determination; provided, however, that if at any time any Person or Group (other
than the General Partner or its Affiliates) beneficially owns 20% or more of the Outstanding
Partnership Securities of any class then Outstanding, all Partnership Securities owned by such
Person or Group shall not be voted on any matter and shall not be considered to be Outstanding when
sending notices of a meeting of Limited Partners to vote on any matter (unless otherwise required
by law), calculating required votes, determining the presence of a quorum or for other similar
purposes under this Agreement, except that Units so owned shall be considered to be Outstanding for
purposes of Section 14.3(e)(v) (such Units shall not, however, be treated as a separate class of
Partnership Securities for purposes of this Agreement); provided, further, that the foregoing
limitation shall not apply to (i) any Person or Group who acquired 20% or more of the Outstanding
Partnership Securities of any class then Outstanding directly from the General Partner or its
Affiliates (other than the Partnership), (ii) any Person or Group who acquired 20% or more of the
Outstanding Partnership Securities of any class then Outstanding directly or indirectly from a
Person or Group described in clause (i) provided that the General Partner shall have notified such
Person or Group in writing that such limitation shall not apply, or (iii) any Person or Group who
acquired 20% or more of any Partnership Securities issued by the Partnership with the prior
approval of the Board of Directors of the General Partner.
“
Over-Allotment Option
” means the over-allotment option granted to the Underwriters by the
Partnership pursuant to the Underwriting Agreement.
“Oxford Mining Company, LLC”
means Oxford Mining Company, LLC, a Delaware limited liability
company.
“
Oxford Resources GP
” means Oxford Resources GP, LLC, a Delaware limited liability company.
“
Partner Nonrecourse Debt
” has the meaning set forth in Treasury Regulation Section
1.704-2(b)(4).
“
Partner Nonrecourse Debt Minimum Gain
” has the meaning set forth in Treasury Regulation
Section 1.704-2(i)(2).
“
Partner Nonrecourse Deductions
” means any and all items of loss, deduction or expenditure
(including any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with
the principles of Treasury Regulation Section 1.704-2(i), are attributable to a Partner Nonrecourse
Debt.
“
Partners
” means the General Partner and the Limited Partners.
“
Partnership
” means Oxford Resource Partners, LP, a Delaware limited partnership.
14
“
Partnership Group
” means the Partnership and its Subsidiaries treated as a single
consolidated entity.
“
Partnership Interest
” means an interest in the Partnership, which shall include the General
Partner Interest and Limited Partner Interests.
“
Partnership Minimum Gain
” means that amount determined in accordance with the principles of
Treasury Regulation Section 1.704-2(d).
“
Partnership Security
” means any class or series of equity interest in the Partnership (but
excluding any options, rights, warrants, restricted units and appreciation rights relating to an
equity interest in the Partnership), including Common Units, Subordinated Units, General Partner
Units and Incentive Distribution Rights.
“
Percentage Interest
” means, as of any date of determination, (a) as to the General Partner
with respect to General Partner Units and as to any Unitholder with respect to Units (including the
General Partner with respect to Units), the product obtained by multiplying (i) 100% less the
percentage applicable to clause (b) below by (ii) the quotient obtained by dividing (A) the number
of General Partner Units held by the General Partner or the number of Units held by such
Unitholder, as the case may be, by (B) the total number of all Outstanding Units and General
Partner Units and (b) as to the holders of other Partnership Securities issued by the Partnership
in accordance with Section 5.6, the percentage established as a part of such issuance. The
Percentage Interest with respect to an Incentive Distribution Right shall at all times be zero.
“
Person
” means an individual or a corporation, firm, limited liability company, partnership,
joint venture, trust, unincorporated organization, association, government agency or political
subdivision thereof or other entity.
“
Per Unit Capital Amount
” means, as of any date of determination, the Capital Account, stated
on a per Unit basis, underlying any Unit held by a Person other than the General Partner or any
Affiliate of the General Partner who holds Units.
“
Plan of Conversion
” has the meaning assigned to such term in Section 14.1.
“
Pro Rata
” means (a) when used with respect to Units or any class thereof, apportioned equally
among all designated Units in accordance with their relative Percentage Interests, (b) when used
with respect to Partners or Record Holders, apportioned among all Partners or Record Holders in
accordance with their relative Percentage Interests and (c) when used with respect to holders of
Incentive Distribution Rights, apportioned equally among all holders of such Incentive Distribution
Rights in accordance with the relative number or percentage of such Incentive Distribution Rights
held by each such holder.
“
Purchase Date
” means the date determined by the General Partner as the date for purchase of
all Outstanding Limited Partner Interests of a certain class (other than Limited Partner Interests
owned by the General Partner and its Affiliates) pursuant to Article XV.
“
Quarter
” means, unless the context requires otherwise, a fiscal quarter of the Partnership
or, with respect to the fiscal quarter of the Partnership that includes the IPO Closing Date, the
portion of such quarter after the IPO Closing Date.
“
Recapture Income
” means any gain recognized by the Partnership (computed without regard to
any adjustment required by Section 734 or Section 743 of the Code) upon the disposition of any
property or asset of the Partnership, which gain is characterized as ordinary income because it
represents the recapture of deductions previously taken with respect to such property or asset.
“
Record Date
” means the date established by the General Partner or otherwise in accordance
with this Agreement for determining (a) the identity of the Record Holders entitled to notice of,
or to vote at, any meeting of Limited Partners or entitled to vote by ballot or give approval of
Partnership action in writing without a meeting or entitled to exercise rights in respect of any
lawful action of Limited Partners or (b) the identity of Record Holders entitled to receive any
report or distribution or to participate in any offer.
15
“
Record Holder
” means (a) the Person in whose name a Common Unit is registered on the books of
the Transfer Agent as of the opening of business on a particular Business Day or (b) with respect
to other Partnership Interests, the Person in whose name any such other Partnership Interest is
registered on the books that the General Partner has caused to be kept as of the opening of
business on such Business Day.
“
Redeemable Interests
” means any Partnership Interests for which a redemption notice has been
given, and has not been withdrawn, pursuant to Section 4.10.
“
Registration Statement
” means the Partnership’s Registration Statement on Form S-1
(Registration No. 333-165662) as it has been or as it may be amended or supplemented from time to
time, filed by the Partnership with the Commission under the Securities Act to register the
offering and sale of the Common Units in the Initial Public Offering.
“
Remaining Net Positive Adjustments
” means, as of the end of any taxable period, (i) with
respect to the Unitholders holding Common Units or Subordinated Units, the excess of (a) the Net
Positive Adjustments of the Unitholders holding Common Units or Subordinated Units as of the end of
such period over (b) the sum of those Partners’ Share of Additional Book Basis Derivative Items for
each prior taxable period, (ii) with respect to the General Partner (as holder of the General
Partner Units), the excess of (a) the Net Positive Adjustments of the General Partner as of the end
of such period over (b) the sum of the General Partner’s Share of Additional Book Basis Derivative
Items with respect to the General Partner Units for each prior taxable period and (iii) with
respect to the holders of Incentive Distribution Rights, the excess of (a) the Net Positive
Adjustments of the holders of Incentive Distribution Rights as of the end of such period over (b)
the sum of the Share of Additional Book Basis Derivative Items of the holders of the Incentive
Distribution Rights for each prior taxable period.
“
Required Allocations
” means (a) any limitation imposed on any allocation of Net Losses or Net
Termination Losses under Section 6.1(b) or Section 6.1(c)(ii) and (b) any allocation of an item of
income, gain, loss or deduction pursuant to Section 6.1(d)(i), Section 6.1(d)(ii), Section
6.1(d)(iv), Section 6.1(d)(v), Section 6.1(d)(vi), Section 6.1(d)(vii) or Section 6.1(d)(ix).
“
Requisite Amendment Approval
” has the meaning assigned to such term in the recitals to this
Agreement.
“
Reserve Replacement Expenditures
” means (a) any cash expenditures for the purchase of coal
reserves or interests in coal reserves in fee and (b) any cash expenditures for advance royalties
and other similar payments with respect to any lease of coal reserves or interests in coal
reserves; provided that in each case such expenditures are Maintenance Capital Expenditures.
“
Reset MQD
” has the meaning assigned to such term in Section 5.11(e).
“
Reset Notice
” has the meaning assigned to such term in Section 5.11(b).
“
Residual Gain
” or “
Residual Loss
” means any item of gain or loss, as the case may be, of the
Partnership recognized for federal income tax purposes resulting from a sale, exchange or other
disposition of a Contributed Property or Adjusted Property, to the extent such item of gain or loss
is not allocated pursuant to Section 6.2(b)(i)(A) or Section 6.2(b)(ii)(A), respectively, to
eliminate Book-Tax Disparities.
“
Retained Converted Subordinated Unit
” has the meaning assigned to such term in Section
5.5(c)(ii).
“Second A/R Partnership Agreement”
has the meaning assigned to such term in the recitals to
this Agreement.
“
Second Liquidation Target Amount
” has the meaning assigned to such term in Section
6.1(c)(i)(E).
“
Second Target Distribution
” means $0.5469 per Unit (or, with respect to the Quarter which
includes the IPO Closing Date, it means the product of $0.5469 multiplied by a fraction of which
the numerator is equal to the
16
number of days in such Quarter after the IPO Closing Date and of which the denominator is the
total number of days in such Quarter), subject to adjustment in accordance with Section 5.11,
Section 6.6 and Section 6.9.
“
Securities Act
” means the Securities Act of 1933, as amended, supplemented or restated from
time to time and any successor to such statute.
“
Securities Exchange Act
” means the Securities Exchange Act of 1934, as amended, supplemented
or restated from time to time and any successor to such statute.
“
Services Agreement
” means the General and Administrative Services Agreement, dated as of the
Contribution Agreement Closing Date, by and among the Partnership, the General Partner and certain
other members of the Partnership Group.
“
Share of Additional Book Basis Derivative Items
” means, in connection with any allocation of
Additional Book Basis Derivative Items for any taxable period, (i) with respect to the Unitholders
holding Common Units or Subordinated Units, the amount that bears the same ratio to such Additional
Book Basis Derivative Items as the Unitholders’ Remaining Net Positive Adjustments as of the end of
such period bears to the Aggregate Remaining Net Positive Adjustments as of that time, (ii) with
respect to the General Partner (as holder of the General Partner Units), the amount that bears the
same ratio to such Additional Book Basis Derivative Items as the General Partner’s Remaining Net
Positive Adjustments as of the end of such period bears to the Aggregate Remaining Net Positive
Adjustment as of that time, and (iii) with respect to the Partners holding Incentive Distribution
Rights, the amount that bears the same ratio to such Additional Book Basis Derivative Items as the
Remaining Net Positive Adjustments of the Partners holding the Incentive Distribution Rights as of
the end of such period bears to the Aggregate Remaining Net Positive Adjustments as of that time.
“
Special Approval
” means approval by a majority of the members of a Conflicts Committee.
“
Subordinated Unit
” means a Partnership Security representing a fractional part of the
Partnership Interests of all Limited Partners and having the rights and obligations specified with
respect to Subordinated Units in this Agreement. The term “Subordinated Unit” does not include a
Common Unit. A Subordinated Unit that is convertible into a Common Unit shall not constitute a
Common Unit until such conversion occurs.
“
Subordination Period
” means the period commencing on the IPO Closing Date and ending on the
first to occur of:
(a) the first date on which there are no longer outstanding any Subordinated Units due to the
conversion of Subordinated Units into Common Units pursuant to Section 5.7 or otherwise; and
(b) the date on which the General Partner is removed as general partner of the Partnership
upon the requisite vote by holders of Outstanding Units under circumstances where Cause does not
exist and Units held by the General Partner and its Affiliates are not voted in favor of such
removal.
“
Subsidiary
” means, with respect to any Person, (a) a corporation of which more than 50% of
the voting power of shares entitled (without regard to the occurrence of any contingency) to vote
in the election of directors or other governing body of such corporation is owned, directly or
indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such
Person or a combination thereof, (b) a partnership (whether general or limited) in which such
Person or a Subsidiary of such Person is, at the date of determination, a general or limited
partner of such partnership, but only if more than 50% of the partnership interests of such
partnership (considering all of the partnership interests of the partnership as a single class) is
owned, directly or indirectly, at the date of determination, by such Person, by one or more
Subsidiaries of such Person, or a combination thereof or (c) any other Person (other than a
corporation or a partnership) in which such Person, one or more Subsidiaries of such Person, or a
combination thereof, directly or indirectly, at the date of determination, has (i) at least a
majority ownership interest or (ii) the power to elect or direct the election of a majority of the
directors or other governing body of such Person.
17
“
Surviving Business Entity
” has the meaning assigned to such term in Section 14.2(b).
“
Target Distributions
” means, collectively, the First Target Distribution, Second Target
Distribution and Third Target Distribution.
“
Taxable Partner
” means each of C&T Coal and the Employee/Director Unitholders who hold Common
Units immediately prior to the closing of the Initial Public Offering.
“
Third Target Distribution
” means $0.6563 per Unit (or, with respect to the Quarter which
includes the IPO Closing Date, it means the product of $0.6563 multiplied by a fraction of which
the numerator is equal to the number of days in such Quarter after the IPO Closing Date and of
which the denominator is the total number of days in such Quarter), subject to adjustment in
accordance with Sections 5.11, 6.6 and 6.9.
“
Trading Day
” means, for the purpose of determining the Current Market Price of any class of
Limited Partner Interests, a day on which the principal National Securities Exchange on which such
class of Limited Partner Interests are listed is open for the transaction of business or, if
Limited Partner Interests of a class are not listed on any National Securities Exchange, a day on
which banking institutions in New York City generally are open.
“
transfer
” has the meaning assigned to such term in Section 4.4(a).
“
Transfer Agent
” means such bank, trust company or other Person (including the General Partner
or one of its Affiliates) as shall be appointed from time to time by the General Partner to act as
registrar and transfer agent for the Common Units; provided, that if no Transfer Agent is
specifically designated for any other Partnership Securities, the General Partner shall act in such
capacity.
“
Underwriters
” means the underwriters in the Initial Public Offering.
“
Underwriting Agreement
” means the underwriting agreement among the Underwriters and the
Partnership, providing for the purchase of Common Units by the Underwriters in connection with the
Initial Public Offering.
“
Unit
” means a Partnership Security that is designated as a “Unit” and shall include Common
Units and Subordinated Units but shall not include (i) General Partner Units (or the General
Partner Interest represented thereby) or (ii) Incentive Distribution Rights.
“
Unitholders
” means the holders of Units.
“
Unit Majority
” means (a) during the Subordination Period, at least a majority of the
Outstanding Common Units (excluding Common Units owned by the General Partner and its Affiliates),
voting as a separate class, and at least a majority of the Outstanding Subordinated Units, voting
as a separate class, and (b) after the end of the Subordination Period, at least a majority of the
Outstanding Common Units, voting as a single class.
“
Unpaid MQD
” has the meaning assigned to such term in Section 6.1(c)(i)(B).
“
Unrealized Gain
” attributable to any item of Partnership property means, as of any date of
determination, the excess, if any, of (a) the fair market value of such property as of such date
(as determined under Section 5.5(d)) over (b) the Carrying Value of such property as of such date
(prior to any adjustment to be made pursuant to Section 5.5(d) as of such date).
“
Unrealized Loss
” attributable to any item of Partnership property means, as of any date of
determination, the excess, if any, of (a) the Carrying Value of such property as of such date
(prior to any adjustment to be made pursuant to Section 5.5(d) as of such date) over (b) the fair
market value of such property as of such date (as determined under Section 5.5(d)).
18
“
Unrecovered Initial Unit Price
” means, at any time with respect to a Unit, the Initial Unit
Price less the sum of all distributions constituting Capital Surplus theretofore made in respect of
an Initial Common Unit and any distributions of cash (or the Net Agreed Value of any distributions
in kind) in connection with the dissolution and liquidation of the Partnership theretofore made in
respect of an Initial Common Unit, adjusted as the General Partner determines to be appropriate to
give effect to any distribution, subdivision or combination of such Units.
“
U.S. GAAP
” means United States generally accepted accounting principles consistently applied.
“
Withdrawal Opinion of Counsel
” has the meaning assigned to such term in Section 11.1(b).
“Working Capital Borrowings”
means borrowings incurred pursuant to a credit facility,
commercial paper facility or other similar financing arrangement that are used solely to pay
distributions to the Partners; provided that when such borrowings are incurred it is the intent of
the borrower to repay such borrowings within 12 months from the date of such borrowings other than
from additional Working Capital Borrowings.
Section 1.2
Construction.
Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include
the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and
verbs shall include the plural and vice versa; (b) references to Articles and Sections refer to
Articles and Sections of this Agreement; (c) the terms “include,” “includes,” “including” or words
of like import shall be deemed to be followed by the words “without limitation;” and (d) the terms
“hereof,” “herein” or “hereunder” refer to this Agreement as a whole and not to any particular
provision of this Agreement. The table of contents and headings contained in this Agreement are for
reference purposes only, and shall not affect in any way the meaning or interpretation of this
Agreement.
ARTICLE II
ORGANIZATION
Section 2.1
Formation
.
The General Partner and the Organizational Limited Partner previously formed the Partnership
as a limited partnership pursuant to the provisions of the Delaware Act, thereafter amended and
restated the original Agreement of Limited Partnership of Oxford Resource Partners, LP in its
entirety pursuant to the First A/R Partnership Agreement and subsequent thereto amended and
restated the First A/R Partnership Agreement in its entirety pursuant to the Second A/R Partnership
Agreement. This further amendment and restatement shall become effective as of the date first set
forth above. Except as expressly provided to the contrary in this Agreement, the rights, duties
(including fiduciary duties), liabilities and obligations of the Partners and the administration,
dissolution and termination of the Partnership shall be governed by the Delaware Act. All
Partnership Interests shall constitute personal property of the owner thereof for all purposes.
Section 2.2
Name
.
The name of the Partnership shall be “Oxford Resource Partners, LP.” The Partnership’s
business may be conducted under any other name or names as determined by the General Partner,
including the name of the General Partner. The words “Limited Partnership,” “LP,” “Ltd.” or similar
words or letters shall be included in the Partnership’s name where necessary for the purpose of
complying with the laws of any jurisdiction that so requires. The General Partner may change the
name of the Partnership at any time and from time to time without the consent or approval of any
Limited Partner and shall notify the Limited Partners of such change in the next regular
communication to the Limited Partners.
Section 2.3
Registered Office; Registered Agent; Principal
Office; Other Offices
.
Unless and until changed by the General Partner, the registered office of the Partnership in
the State of Delaware shall be located at 1209 Orange Street, Wilmington, New Castle County,
Delaware 19801, and the
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registered agent for service of process on the Partnership in the State of
Delaware at such registered office shall be The Corporation Trust Company. The principal office of
the Partnership shall be located at 41 South High Street, Suite 3450, Columbus, Ohio 43215, or such
other place as the General Partner may from time to time designate by notice to the Limited
Partners. The Partnership may maintain offices at such other place or places within or outside the
State of Delaware as the General Partner shall determine necessary or appropriate. The address of
the General Partner shall be 41 South High Street, Suite 3450, Columbus, Ohio 43215, or such other
place as the General Partner may from time to time designate by notice to the Limited Partners.
Section 2.4
Purpose and Business
.
The purpose and nature of the business to be conducted by the Partnership shall be to (a)
engage directly in, or enter into or form, hold and dispose of any corporation, partnership, joint
venture, limited liability company or other arrangement to engage indirectly in, any business
activity that is approved by the General Partner and that lawfully may be conducted by a limited
partnership organized pursuant to the Delaware Act and, in connection therewith, to exercise all of
the rights and powers conferred upon the Partnership pursuant to the agreements relating to such
business activity and (b) do anything necessary or appropriate to the foregoing, including the
making of capital contributions or loans to a Group Member; provided, however, that the General
Partner shall not cause the Partnership to engage, directly or indirectly, in any business activity
that the General Partner determines would cause the Partnership to be treated as an association
taxable as a corporation or otherwise taxable as an entity for federal income tax purposes. To the
fullest extent permitted by law, the General Partner shall have no duty or obligation to propose or
approve, and may decline to propose or approve, the conduct by the Partnership of any business free
of any fiduciary duty or obligation whatsoever to the Partnership, any Limited Partner and, in
declining to so propose or approve, shall not be required to act in good faith or pursuant to any
other standard imposed by this Agreement, any Group Member Agreement, any other agreement
contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity.
Section 2.5
Powers
.
The Partnership shall be empowered to do any and all acts and things necessary or appropriate
for the furtherance and accomplishment of the purposes and business described in Section 2.4 and
for the protection and benefit of the Partnership.
Section 2.6
Term
.
The term of the Partnership commenced upon the filing of the Certificate of Limited
Partnership in accordance with the Delaware Act and shall continue in existence until the
dissolution of the Partnership in accordance with the provisions of Article XII. The existence of
the Partnership as a separate legal entity shall continue until the cancellation of the Certificate
of Limited Partnership as provided in the Delaware Act.
Section 2.7
Title to Partnership Assets
.
Title to Partnership assets, whether real, personal or mixed and whether tangible or
intangible, shall be deemed to be owned by the Partnership as an entity, and no Partner,
individually or collectively, shall have any ownership interest in such Partnership assets or any
portion thereof. Title to any or all of the Partnership assets may be held in the name of the
Partnership, the General Partner, one or more of its Affiliates or one or more nominees, as the
General Partner may determine. The General Partner hereby declares and warrants that any
Partnership assets for which record title is held in the name of the General Partner or one or more
of its Affiliates or one or more nominees shall be held by the General Partner or such Affiliate or
nominee for the use and benefit of the Partnership in accordance with the provisions of this
Agreement; provided, however, that the General Partner shall use reasonable efforts to cause record
title to such assets (other than those assets in respect of which the General Partner determines
that the expense and difficulty of conveyancing makes transfer of record title to the Partnership
impracticable) to be vested in the Partnership as soon as reasonably practicable; provided,
further, that, prior to the withdrawal or removal of the General Partner or as soon thereafter as
practicable, the General Partner shall use reasonable efforts to effect the transfer of record
title to the Partnership and, prior to any such transfer, will provide for the use of such
assets in a manner satisfactory to any successor General Partner. All Partnership assets
shall be recorded as the
20
property of the Partnership in its books and records, irrespective of the
name in which record title to such Partnership assets is held.
ARTICLE III
RIGHTS OF LIMITED PARTNERS
Section 3.1
Limitation of Liability.
The Limited Partners shall have no liability under this Agreement except as expressly provided
in this Agreement or the Delaware Act.
Section 3.2
Management of Business.
No Limited Partner, in its capacity as such, shall participate in the operation, management or
control (within the meaning of the Delaware Act) of the Partnership’s business, transact any
business in the Partnership’s name or have the power to sign documents for or otherwise bind the
Partnership. Any action taken by any Affiliate of the General Partner or any officer, director,
employee, manager, member, general partner, agent or trustee of the General Partner or any of its
Affiliates, or any officer, director, employee, manager, member, general partner, agent or trustee
of a Group Member, in its capacity as such, shall not, to the fullest extent permitted by law, be
deemed to be participation in the control of the business of the Partnership by a limited partner
of the Partnership (within the meaning of Section 17-303(a) of the Delaware Act) and shall not
affect, impair or eliminate the limitations on the liability of the Limited Partners under this
Agreement.
Section 3.3
Outside Activities of the Limited Partners.
Subject to the provisions of Section 7.5, any Limited Partner shall be entitled to and may
have business interests and engage in business activities in addition to those relating to the
Partnership, including business interests and activities in direct competition with the Partnership
Group. Neither the Partnership nor any of the other Partners shall have any rights by virtue of
this Agreement in any business ventures of any Limited Partner.
Section 3.4
Rights of Limited Partners.
(a) In addition to other rights provided by this Agreement or by applicable law, and except as
limited by Section 3.4(b), each Limited Partner shall have the right, for a purpose reasonably
related to such Limited Partner’s interest as a Limited Partner in the Partnership, upon reasonable
written demand stating the purpose of such demand, and at such Limited Partner’s own expense:
(i) to obtain true and full information regarding the status of the business and financial
condition of the Partnership;
(ii) promptly after its becoming available, to obtain a copy of the Partnership’s federal,
state and local income tax returns for each year;
(iii) to obtain a current list of the name and last known business, residence or mailing
address of each Partner;
(iv) to obtain a copy of this Agreement and the Certificate of Limited Partnership and all
amendments thereto;
(v) to obtain true and full information regarding the amount of cash and a description and
statement of the Net Agreed Value of any other Capital Contribution by each Partner and that each
Partner has agreed to contribute in the future, and the date on which each became a Partner; and
(vi) to obtain such other information regarding the affairs of the Partnership as is just and
reasonable.
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(b) To the fullest extent permitted by law, the General Partner may keep confidential from the
Limited Partners, for such period of time as the General Partner deems reasonable, (i) any
information that the General Partner reasonably believes to be in the nature of trade secrets or
(ii) other information the disclosure of which the General Partner in good faith believes (A) is
not in the best interests of the Partnership Group, (B) could damage the Partnership Group or its
business or (C) that any Group Member is required by law or by agreement with any third party to
keep confidential (other than agreements with Affiliates of the Partnership the primary purpose of
which is to circumvent the obligations set forth in this Section 3.4).
ARTICLE IV
CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS;
REDEMPTION OF PARTNERSHIP INTERESTS
Section 4.1
Certificates.
Notwithstanding anything to the contrary in this Agreement, unless the General Partner shall
determine otherwise in respect of some or all of any or all classes of Partnership Interests,
Partnership Interests shall not be evidenced by physical certificates. Certificates that may be
issued shall be executed on behalf of the Partnership by the Chairman of the Board, Chief Executive
Officer, President, Chief Financial Officer or any Vice President and the Secretary, any Assistant
Secretary, or other authorized officer or director of the General Partner. If a Transfer Agent has
been appointed for a class of Partnership Interests, no Certificate for such class of Partnership
Interests shall be valid for any purpose until it has been countersigned by the Transfer Agent;
provided, however, that, if the General Partner elects to cause the Partnership to issue
Partnership Interests of such class in global form, the Certificate shall be valid upon receipt of
a certificate from the Transfer Agent certifying that the Partnership Interests have been duly
registered in accordance with the directions of the Partnership. Subject to the requirements of
Section 6.7(b) and Section 6.7(c), if Common Units are evidenced by Certificates, on or after the
date on which Subordinated Units are converted into Common Units pursuant to the terms of Section
5.7, the Record Holders of such Subordinated Units (i) if the Subordinated Units are evidenced by
Certificates, may exchange such Certificates for Certificates evidencing Common Units, or (ii) if
the Subordinated Units are not evidenced by Certificates, shall be issued Certificates evidencing
Common Units. With respect to any Units outstanding prior to the effectiveness of this Agreement
that are represented by physical certificates, the General Partner may determine that such Units
will no longer be represented by physical certificates and may, upon written notice to the holders
of such Units and subject to applicable law, take whatever actions it deems necessary or
appropriate to cause such Units to be registered in book entry or global form and may cause such
physical certificates to be cancelled or deemed cancelled.
Section 4.2
Mutilated, Destroyed, Lost or Stolen Certificates.
(a) If any mutilated Certificate is surrendered to the Transfer Agent (for Common Units) or
the General Partner (for Partnership Securities other than Common Units), the appropriate officers
of the General Partner on behalf of the Partnership shall execute, and the Transfer Agent (for
Common Units) or the General Partner (for Partnership Securities other than Common Units) shall
countersign and deliver in exchange therefor, a new Certificate evidencing the same number and type
of Partnership Securities as the Certificate so surrendered.
(b) The appropriate officers of the General Partner on behalf of the Partnership shall execute
and deliver, and the Transfer Agent (for Common Units) shall countersign, a new Certificate in
place of any Certificate previously issued, or issue uncertificated Common Units, if the Record
Holder of the Certificate:
(i) makes proof by affidavit, in form and substance satisfactory to the General Partner, that
a previously issued Certificate has been lost, destroyed or stolen;
(ii) requests the issuance of a new Certificate or the issuance of uncertificated Units before
the General Partner has notice that the Certificate has been acquired by a purchaser for value in
good faith and without notice of an adverse claim;
22
(iii) if requested by the General Partner, delivers to the General Partner a bond, in form and
substance satisfactory to the General Partner, with surety or sureties and with fixed or open
penalty as the General Partner may direct to indemnify the Partnership, the Partners, the General
Partner and the Transfer Agent against any claim that may be made on account of the alleged loss,
destruction or theft of the Certificate; and
(iv) satisfies any other reasonable requirements imposed by the General Partner.
If a Limited Partner fails to notify the General Partner within a reasonable period of time
after he has notice of the loss, destruction or theft of a Certificate, and a transfer of the
Limited Partner Interests represented by the Certificate is registered before the Partnership, the
General Partner or the Transfer Agent receives such notification, the Limited Partner shall be
precluded from making any claim against the Partnership, the General Partner or the Transfer Agent
for such transfer or for a new Certificate or uncertificated Units.
(c) As a condition to the issuance of any new Certificate or uncertificated Units under this
Section 4.2, the General Partner may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Transfer Agent) reasonably connected therewith.
Section 4.3
Record Holders.
The Partnership shall be entitled to recognize the Record Holder as the Partner with respect
to any Partnership Interest and, accordingly, shall not be bound to recognize any equitable or
other claim to, or interest in, such Partnership Interest on the part of any other Person,
regardless of whether the Partnership shall have actual or other notice thereof, except as
otherwise provided by law or any applicable rule, regulation, guideline or requirement of any
National Securities Exchange on which such Partnership Interests are listed or admitted to trading.
Without limiting the foregoing, when a Person (such as a broker, dealer, bank, trust company or
clearing corporation or an agent of any of the foregoing) is acting as nominee, agent or in some
other representative capacity for another Person in acquiring and/or holding Partnership Interests,
as between the Partnership on the one hand, and such other Persons on the other, such
representative Person (a) shall be the Partner of record and beneficially and (b) shall be bound by
this Agreement and shall have the rights and obligations of a Partner hereunder and as, and to the
extent, provided for herein.
Section 4.4
Transfer Generally.
(a) The term “transfer,” when used in this Agreement with respect to a Partnership Interest,
shall be deemed to refer to a transaction (i) by which the General Partner assigns its General
Partner Units to another Person or by which a holder of Incentive Distribution Rights assigns its
Incentive Distribution Rights to another Person, and includes a sale, assignment, gift, pledge,
encumbrance, hypothecation, mortgage, exchange or any other disposition by law or otherwise or (ii)
by which the holder of a Limited Partner Interest (other than an Incentive Distribution Right)
assigns such Limited Partner Interest to another Person who is or becomes a Limited Partner, and
includes a sale, assignment, gift, exchange or any other disposition by law or otherwise, excluding
a pledge, encumbrance, hypothecation or mortgage but including any transfer upon foreclosure of any
pledge, encumbrance, hypothecation or mortgage.
(b) No Partnership Interest shall be transferred, in whole or in part, except in accordance
with the terms and conditions set forth in this Article IV. Any transfer or purported transfer of a
Partnership Interest not made in accordance with this Article IV shall be null and void.
(c) Nothing contained in this Agreement shall prevent a disposition by any stockholder,
member, partner or other owner of the General Partner of any or all of the shares of stock, limited
liability company interests, partnership interests or other ownership interests in the General
Partner.
Section 4.5
Registration and Transfer of Limited Partner
Interests.
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(a) The General Partner shall keep or cause to be kept on behalf of the Partnership a register
in which, subject to such reasonable regulations as it may prescribe and subject to the provisions
of Section 4.5(b), the Partnership shall record the registration and transfer of Limited Partner
Interests. The Transfer Agent is hereby appointed registrar and transfer agent for the purpose of
registering Common Units and transfers of such Common Units as herein provided.
(b) The Partnership shall not recognize any transfer of Limited Partner Interests evidenced by
Certificates until the endorsed Certificates evidencing such Limited Partner Interests are
surrendered for registration of transfer. No charge shall be imposed by the General Partner for
such transfer; provided, that as a condition to the issuance of any new Certificate under this
Section 4.5, the General Partner may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed with respect thereto. Upon surrender of a Certificate
for registration of transfer of any Limited Partner Interests evidenced by a Certificate, and
subject to the provisions hereof, the appropriate officers of the General Partner on behalf of the
Partnership shall execute and deliver, and in the case of Certificates evidencing Limited Partner
Interests for which a Transfer Agent has been appointed the Transfer Agent shall countersign and
deliver, in the name of the holder or the designated transferee or transferees, as required
pursuant to the holder’s instructions, one or more new Certificates evidencing the same aggregate
number and type of Limited Partner Interests as was evidenced by the Certificate so surrendered.
(c) By acceptance of the transfer of a Limited Partner Interest in accordance with this
Section 4.5 and except as otherwise provided in Section 4.9, each transferee of a Limited Partner
Interest (including any nominee holder or an agent or representative acquiring such Limited Partner
Interests for the account of another Person) (i) shall be admitted to the Partnership as a Limited
Partner with respect to the Limited Partner Interests so transferred to such Person when any such
transfer or admission is reflected in the books and records of the Partnership and such Limited
Partner becomes the Record Holder of the Limited Partner Interests so transferred, (ii) shall
become bound, and shall be deemed to have agreed to be bound, by the terms of this Agreement, (iii)
represents that the transferee has the capacity, power and authority to enter into this Agreement
and (iv) makes the consents, acknowledgments and waivers contained in this Agreement, all with or
without execution of this Agreement by such Person. The transfer of any Limited Partner Interests
and the admission of any new Limited Partner shall not constitute an amendment to this Agreement.
(d) Subject to (i) the foregoing provisions of this Section 4.5, (ii) Section 4.3, (iii)
Section 4.8, (iv) with respect to any class or series of Limited Partner Interests, the provisions
of any statement of designations or an amendment to this Agreement establishing such class or
series, (v) any contractual provisions binding on any Limited Partner and (vi) provisions of
applicable law, including the Securities Act, Limited Partner Interests shall be freely
transferable.
(e) Subject to (i) the foregoing provisions of this Section 4.5, (ii) Section 4.3, (iii)
Section 4.8, (iv) Section 6.7 and (v) the provisions of applicable law, including the Securities
Act, the General Partner and its Affiliates shall have the right at any time to transfer their
Subordinated Units and Common Units (whether issued upon conversion of the Subordinated Units or
otherwise) to one or more Persons.
Section 4.6
Transfer of the General Partner’s General Partner
Interest.
(a) Subject to Section 4.6(c), prior to June 30, 2020, the General Partner shall not transfer
all or any part of its General Partner Interest to a Person unless such transfer (i) has been
approved by the prior written consent or vote of the holders of at least a majority of the
Outstanding Common Units (excluding Common Units held by the General Partner and its Affiliates) or
(ii) is of all, but not less than all, of its General Partner Interest to (A) an Affiliate of the
General Partner (other than an individual) or (B) another Person (other than an individual) in
connection with the merger or consolidation of the General Partner with or into such other Person
or the transfer by the General Partner of all or substantially all of its assets to such other
Person.
(b) Subject to Section 4.6(c), on or after June 30, 2020, the General Partner may transfer all
or any of its General Partner Interest without Unitholder approval.
(c) Notwithstanding anything herein to the contrary, no transfer by the General Partner of all
or any part of its General Partner Interest to another Person shall be permitted unless (i) the
transferee agrees to assume the
24
rights and duties of the General Partner under this Agreement and
to be bound by the provisions of this Agreement, (ii) the Partnership receives an Opinion of
Counsel that such transfer would not result in the loss of limited liability of any Limited Partner
under the Delaware Act or cause the Partnership to be treated as an association taxable as a
corporation or otherwise to be taxed as an entity for federal income tax purposes (to the extent
not already so treated or taxed) and (iii) such transferee also agrees to purchase all (or the
appropriate portion thereof, if applicable) of the partnership or limited liability company
interest of the General Partner as the general partner or managing member, if any, of each other
Group Member. In the case of a transfer pursuant to and in compliance with this Section 4.6, the
transferee or successor (as the case may be) shall, subject to compliance with Section 10.2, be
admitted to the Partnership as the General Partner immediately prior to the transfer of the General
Partner Interest, and the business of the Partnership shall continue without dissolution.
Section 4.7
Transfer of Incentive Distribution Rights.
The General Partner or any other holder of Incentive Distribution Rights may transfer any or
all of its Incentive Distribution Rights without Unitholder approval. Notwithstanding anything
herein to the contrary, (i) the transfer of Common Units issued pursuant to Section 5.11 shall not
be treated as a transfer of all or any part of the Incentive Distribution Rights and (ii) no
transfer of Incentive Distribution Rights to another Person shall be permitted unless the
transferee agrees to be bound by the provisions of this Agreement.
Section 4.8
Restrictions on Transfers.
(a) Except as provided in Section 4.8(d), and notwithstanding the other provisions of this
Article IV, no transfer of any Partnership Interests shall be made if such transfer would (i)
terminate the existence or qualification of the Partnership under the laws of the jurisdiction of
its formation or (ii) cause the Partnership to be treated as an association taxable as a
corporation or otherwise to be taxed as an entity for federal income tax purposes (to the extent
not already so treated or taxed).
(b) The General Partner may impose restrictions on the transfer of Partnership Interests if it
receives an Opinion of Counsel that such restrictions are necessary to avoid a significant risk of
the Partnership becoming taxable as a corporation or otherwise becoming taxable as an entity for
federal income tax purposes. The General Partner may impose such restrictions by amending this
Agreement; provided, however, that any amendment that would result in the delisting or suspension
of trading of any class of Limited Partner Interests on the principal National Securities Exchange
on which such class of Limited Partner Interests is then listed or admitted to trading must be
approved, prior to such amendment being effected, by the holders of at least a majority of the
Outstanding Limited Partner Interests of such class.
(c) The transfer of a Subordinated Unit that has converted into a Common Unit shall be subject
to the restrictions imposed by Section 6.7(b) and Section 6.7(c).
(d) Nothing contained in this Article IV, or elsewhere in this Agreement, shall preclude the
settlement of any transactions involving Partnership Interests entered into through the facilities
of any National Securities Exchange on which such Partnership Interests are listed or admitted to
trading.
(e) Each Certificate evidencing Partnership Interests shall bear a conspicuous legend in
substantially the form provided for in Section 4.8(f) of the First A/R Partnership Agreement (if
such Certificate was issued prior to August 28, 2009), Section 4.8(f) of the Second A/R Partnership
Agreement (if such Certificate was issued on or after August 28, 2009 and prior to the date hereof)
or in substantially the following form (if such Certificate is issued on or after the date hereof):
THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF OXFORD RESOURCE PARTNERS, LP
(THE “PARTNERSHIP”) THAT THIS SECURITY MAY NOT BE SOLD, OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED IF SUCH TRANSFER WOULD (A) VIOLATE THE THEN APPLICABLE FEDERAL OR
STATE SECURITIES LAWS OR RULES
AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION
OR ANY OTHER GOVERNMENTAL AUTHORITY WITH
25
JURISDICTION OVER SUCH TRANSFER, (B) TERMINATE THE
EXISTENCE OR QUALIFICATION OF THE PARTNERSHIP UNDER THE LAWS OF THE STATE OF DELAWARE, (C)
CAUSE THE PARTNERSHIP TO BE TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION OR OTHERWISE
TO BE TAXED AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE EXTENT NOT ALREADY SO
TREATED OR TAXED) OR (D) VIOLATE THE TERMS AND CONDITIONS OF THE PARTNERSHIP AGREEMENT. THE
GENERAL PARTNER OF THE PARTNERSHIP MAY IMPOSE ADDITIONAL RESTRICTIONS ON THE TRANSFER OF
THIS SECURITY IF IT RECEIVES AN OPINION OF COUNSEL THAT SUCH RESTRICTIONS ARE NECESSARY TO
AVOID A SIGNIFICANT RISK OF THE PARTNERSHIP BECOMING TAXABLE AS A CORPORATION OR OTHERWISE
BECOMING TAXABLE AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES. THE RESTRICTIONS SET FORTH
ABOVE SHALL NOT PRECLUDE THE SETTLEMENT OF ANY TRANSACTIONS INVOLVING THIS SECURITY ENTERED
INTO THROUGH THE FACILITIES OF ANY NATIONAL SECURITIES EXCHANGE ON WHICH THIS SECURITY IS
LISTED OR ADMITTED TO TRADING.
Section 4.9
Citizenship Certificates; Non-citizen Assignees.
(a) If any Group Member is or becomes subject to any federal, state or local law or regulation
that the General Partner determines would create a substantial risk of cancellation or forfeiture
of any property in which the Group Member has an interest based on the nationality, citizenship or
other related status of a Limited Partner, the General Partner may request any Limited Partner to
furnish to the General Partner, within 30 days after receipt of such request, an executed
Citizenship Certification or such other information concerning his nationality, citizenship or
other related status (or, if the Limited Partner is a nominee holding for the account of another
Person, the nationality, citizenship or other related status of such other Person) as the General
Partner may request. If a Limited Partner fails to furnish to the General Partner within the
aforementioned 30-day period such Citizenship Certification or other requested information or if
upon receipt of such Citizenship Certification or other requested information the General Partner
determines that a Limited Partner is not an Eligible Citizen, the Limited Partner Interests owned
by such Limited Partner shall be subject to redemption in accordance with the provisions of Section
4.10. In addition, the General Partner may require that the status of any such Limited Partner be
changed to that of a Non-citizen Assignee and, thereupon, the General Partner shall be substituted
for such Non-citizen Assignee as the Limited Partner in respect of the Non-citizen Assignee’s
Limited Partner Interests and shall vote such Limited Partner Interests in accordance with Section
4.9(d).
(b) The General Partner shall, in exercising voting rights in respect of Limited Partner
Interests held by it on behalf of Non-citizen Assignees, distribute the votes in the same ratios as
the votes of Partners (including the General Partner) in respect of Limited Partner Interests other
than those of Non-citizen Assignees are cast, either for, against or abstaining as to the matter.
(c) Upon dissolution of the Partnership, a Non-citizen Assignee shall have no right to receive
a distribution in kind pursuant to Section 12.4 but shall be entitled to the cash equivalent
thereof, and the Partnership shall provide cash in exchange for an assignment of the Non-citizen
Assignee’s share of any distribution in kind. Such payment and assignment shall be treated for
Partnership purposes as a purchase by the Partnership from the Non-citizen Assignee of his Limited
Partner Interest (representing his right to receive his share of such distribution in kind).
(d) At any time after a Non-citizen Assignee can and does certify that he has become an
Eligible Citizen, a Non-citizen Assignee may, upon application to the General Partner, request
admission as a Limited Partner with respect to any Limited Partner Interests of such Non-citizen
Assignee not redeemed pursuant to Section 4.10, and upon admission of such Non-citizen Assignee
pursuant to Section 10.1, the General Partner shall cease to be deemed to be the Limited Partner in
respect of the Non-citizen Assignee’s Limited Partner Interests.
Section 4.10
Redemption of Partnership Interests of Non-citizen.
(a) If at any time a Limited Partner or transferee fails to furnish a Citizenship
Certification or other information requested within the 30-day period specified in Section 4.9(a),
or if upon receipt of such Citizenship Certification or other information the General Partner
determines, with the advice of counsel, that a Limited Partner
26
or transferee is not an Eligible
Citizen, the Partnership may, unless the Limited Partner or transferee establishes to the
satisfaction of the General Partner that such Limited Partner or transferee is an Eligible Citizen,
or has transferred his Partnership Interests to a Person who is an Eligible Citizen, and who
furnishes a Citizenship Certification to the General Partner prior to the date fixed for redemption
as provided below, redeem the Limited Partner Interest of such Limited Partner or transferee as
follows:
(i) The General Partner shall, not later than the 30th day before the date fixed for
redemption, give notice of redemption to the Limited Partner or transferee, at his last address
designated on the records of the Partnership or the Transfer Agent, by registered or certified
mail, postage prepaid. The notice shall be deemed to have been given when so mailed. The notice
shall specify the Redeemable Interests or, if uncertificated, upon receipt of evidence satisfactory
to the General Partner of the ownership of the Redeemable Interests, the date fixed for redemption,
the place of payment, that payment of the redemption price will be made upon surrender of the
Certificate evidencing the Redeemable Interests (if such Redeemable Interests are certificated) and
that on and after the date fixed for redemption no further allocations or distributions to which
such person would otherwise be entitled in respect of the Redeemable Interests will accrue or be
made.
(ii) The aggregate redemption price for Redeemable Interests shall be an amount equal to the
lesser of (i) the Current Market Price (the date of determination of which shall be the date fixed
for redemption) of Limited Partner Interests of the class to be so redeemed and (ii) the price paid
for such Limited Partner Interests by the Limited Partner or transferee. The redemption price shall
be paid, as determined by the General Partner, in cash or by delivery of a promissory note of the
Partnership in the principal amount of the redemption price, bearing interest at the rate of 5%
annually and payable in three equal annual installments of principal together with accrued
interest, commencing one year after the redemption date.
(iii) Upon surrender by or on behalf of the Limited Partner or transferee, at the place
specified in the notice of redemption, of (x) if certificated, the Certificate evidencing the
Redeemable Interests, duly endorsed in blank or accompanied by an assignment duly executed in
blank, or (y) if uncertificated, upon receipt of evidence satisfactory to the General Partner of
the ownership of the Redeemable Interests, the Limited Partner or transferee or his duly authorized
representative shall be entitled to receive the payment therefor.
(iv) After the redemption date, Redeemable Interests shall no longer constitute issued and
Outstanding Limited Partner Interests.
(b) The provisions of this Section 4.10 shall also be applicable to Limited Partner Interests
held by a Limited Partner as nominee of a Person determined to be other than an Eligible Citizen.
(c) Nothing in this Section 4.10 shall prevent the recipient of a notice of redemption from
transferring his Limited Partner Interest before the redemption date if such transfer is otherwise
permitted under this Agreement. Upon receipt of notice of such a transfer, the General Partner
shall withdraw the notice of redemption, provided the transferee of such Limited Partner Interest
certifies to the satisfaction of the General Partner that he is an Eligible Citizen. If the
transferee fails to make such certification, such redemption shall be effected from the transferee
on the original redemption date.
ARTICLE V
CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS
Section 5.1
Intentionally Omitted.
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Section 5.2
Contributions by the General Partner and the Initial
Limited Partners.
(a) Prior to the IPO Closing Date, the General Partner, C&T Coal and AIM Oxford made capital
contributions in exchange for Partnership Interests. Oxford Resources GP hereby continues as
general partner of the Partnership. Each Person who was a limited partner of the Partnership
immediately prior to the effectiveness of this Agreement hereby continues as a limited partner.
(b) The General Partner hereby waives its rights to any distributions made on the IPO Closing
Date in exchange for (i) a continuation of its General Partner Interest equal to a 2% Percentage
Interest, subject to all of the rights, privileges and duties of the General Partner under this
Agreement, and (ii) a continuation of the Incentive Distribution Rights.
(c) Upon the issuance of additional Limited Partner Interests by the Partnership (other than
(i) any Common Units issued upon conversion of Subordinated Units and (ii) Common Units issued
pursuant to Section 5.11), the General Partner may, in exchange for a proportionate number of
General Partner Units, make additional Capital Contributions in an amount equal to the product
obtained by multiplying (i) the quotient determined by dividing (A) the General Partner’s
Percentage Interest immediately prior to the issuance of such additional Limited Partner Interests
by the Partnership by (B) 100% less the General Partner’s Percentage Interest immediately prior to
the issuance of such additional Limited Partner Interests by the Partnership times (ii) the amount
contributed to the Partnership by the Limited Partners in exchange for such additional Limited
Partner Interests. Except as set forth in Article XII, the General Partner shall not be obligated
to make any additional Capital Contributions to the Partnership.
Section 5.3
Contributions by Limited Partners
(a) On the IPO Closing Date and pursuant to the Underwriting Agreement, each Underwriter shall
contribute cash to the Partnership in exchange for the issuance by the Partnership of Common Units
to each Underwriter, all as set forth in the Underwriting Agreement.
(b) Upon the exercise, if any, of the Over-Allotment Option, each Underwriter shall contribute
cash to the Partnership in exchange for the issuance by the Partnership of Common Units to each
Underwriter, all as set forth in the Underwriting Agreement.
(c) No Limited Partner will be required to make any additional Capital Contribution to the
Partnership pursuant to this Agreement.
Section 5.4
Interest and Withdrawal of Capital Contributions.
No interest shall be paid by the Partnership on Capital Contributions. No Partner shall be
entitled to the withdrawal or return of its Capital Contribution, except to the extent, if any,
that distributions made pursuant to this Agreement or upon dissolution of the Partnership may be
considered as such by law and then only to the extent provided for in this Agreement. Except to the
extent expressly provided in this Agreement, no Partner shall have priority over any other Partner
either as to the return of Capital Contributions or as to profits, losses or distributions. Any
such return shall be a compromise to which all Partners agree within the meaning of Section
17-502(b) of the Delaware Act.
Section 5.5
Capital Accounts.
(a) The Partnership shall maintain for each Partner (or a beneficial owner of Partnership
Interests held by a nominee in any case in which the nominee has furnished the identity of such
owner to the Partnership in accordance with Section 6031(c) of the Code or any other method
acceptable to the General Partner) owning a Partnership Interest a separate Capital Account with
respect to such Partnership Interest in accordance with the rules of Treasury Regulation Section
1.704-1(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of all Capital
Contributions made to the Partnership with respect to such Partnership Interest and (ii) all items
of Partnership income and gain (including income and gain exempt from tax) computed in accordance
with Section
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5.5(b) and allocated with respect to such Partnership Interest pursuant to Section
6.1, and decreased by (x) the amount of cash or Net Agreed Value of all actual and deemed
distributions of cash or property made with respect to such Partnership Interest and (y) all items
of Partnership deduction and loss computed in accordance with Section 5.5(b) and allocated with
respect to such Partnership Interest pursuant to Section 6.1.
(b) For purposes of computing the amount of any item of income, gain, loss or deduction which
is to be allocated pursuant to Article VI and is to be reflected in the Partners’ Capital Accounts,
the determination, recognition and classification of any such item shall be the same as its
determination, recognition and classification for federal income tax purposes (including any method
of depreciation, cost recovery or amortization used for that purpose), provided, that:
(i) Solely for purposes of this Section 5.5, the Partnership shall be treated as owning
directly its proportionate share (as determined by the General Partner based upon the provisions of
the applicable Group Member Agreement or governing, organizational or similar documents) of all
property owned by any other Group Member that is classified as a partnership for federal income tax
purposes and (y) any other partnership, limited liability company, unincorporated business or other
entity classified as a partnership for federal income tax purposes of which a Group Member is,
directly or indirectly, a partner, member or other equityholder.
(ii) All fees and other expenses incurred by the Partnership to promote the sale of (or to
sell) a Partnership Interest that can neither be deducted nor amortized under Section 709 of the
Code, if any, shall, for purposes of Capital Account maintenance, be treated as an item of
deduction at the time such fees and other expenses are incurred and shall be allocated among the
Partners pursuant to Section 6.1.
(iii) Except as otherwise provided in Treasury Regulation Section 1.704-1(b)(2)(iv)(m), the
computation of all items of income, gain, loss and deduction shall be made without regard to any
election under Section 754 of the Code which may be made by the Partnership and, as to those items
described in Section 705(a)(1)(B) or 705(a)(2)(B) of the Code, without regard to the fact that such
items are not includable in gross income or are neither currently deductible nor capitalized for
federal income tax purposes. To the extent an adjustment to the adjusted tax basis of any
Partnership asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital
Accounts, the amount of such adjustment in the Capital Accounts shall be treated as an item of gain
or loss.
(iv) Any income, gain or loss attributable to the taxable disposition of any Partnership
property shall be determined as if the adjusted basis of such property as of such date of
disposition were equal in amount to the Partnership’s Carrying Value with respect to such property
as of such date.
(v) In accordance with the requirements of Section 704(b) of the Code, any deductions for
depreciation, cost recovery or amortization attributable to any Contributed Property shall be
determined as if the adjusted basis of such property on the date it was acquired by the Partnership
were equal to the Agreed Value of such property. Upon an adjustment pursuant to Section 5.5(d) to
the Carrying Value of any Partnership property subject to depreciation, cost recovery or
amortization, any further deductions for such depreciation, cost recovery or amortization
attributable to such property shall be determined as if the adjusted basis of such property were
equal to the Carrying Value of such property immediately following such adjustment.
(vi) If the Partnership’s adjusted basis in a depreciable or cost recovery property is reduced
for federal income tax purposes pursuant to Section 48(q)(1) or 48(q)(3) of the Code, the amount of
such reduction shall, solely for purposes hereof, be deemed to be an additional depreciation or
cost recovery deduction in the year such property is placed in service and shall be allocated among
the Partners pursuant to Section 6.1. Any restoration of such basis pursuant to Section 48(q)(2) of
the Code shall, to the extent possible, be allocated in the same manner to the Partners to whom
such deemed deduction was allocated.
(vii) If the Gross Liability Value of any Liability of the Partnership described in Treasury
Regulation Section 1.752-7(b)(3)(i) is adjusted as required by this Agreement, the amount of such
adjustment shall be treated as an item of loss (if the adjustment increases the Carrying Value of
such Liability of the Partnership) or
an item of gain (if the adjustment decreases the Carrying Value of such Liability of the
Partnership) and shall be taken into account for purposes of computing Net Income and Net Loss.
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(c) (i) A transferee of a Partnership Interest shall succeed to a Pro Rata portion of the
Capital Account of the transferor relating to the Partnership Interest so transferred.
(ii) Subject to Section 6.7(c), immediately prior to the transfer of a Subordinated Unit or of
a Subordinated Unit that has converted into a Common Unit pursuant to Section 5.7 by a holder
thereof (other than a transfer to an Affiliate unless the General Partner elects to have this
subparagraph 5.5(c)(ii) apply), the Capital Account maintained for such Person with respect to its
Subordinated Units or converted Subordinated Units will (A) first, be allocated to the Subordinated
Units or converted Subordinated Units to be transferred in an amount equal to the product of (x)
the number of such Subordinated Units or converted Subordinated Units to be transferred and (y) the
Per Unit Capital Amount for a Common Unit, and (B) second, any remaining balance in such Capital
Account will be retained by the transferor, regardless of whether it has retained any Subordinated
Units or converted Subordinated Units (“Retained Converted Subordinated Units”). Following any such
allocation, the transferor’s Capital Account, if any, maintained with respect to the retained
Subordinated Units or Retained Converted Subordinated Units, if any, will have a balance equal to
the amount allocated under clause (B) hereinabove, and the transferee’s Capital Account established
with respect to the transferred Subordinated Units or converted Subordinated Units will have a
balance equal to the amount allocated under clause (A) hereinabove.
(d) (i) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), on an issuance of
additional Partnership Interests for cash or Contributed Property, the issuance of Partnership
Interests as consideration for the provision of services or the conversion of the General Partner’s
Combined Interest to Common Units pursuant to Section 11.3(b), the Capital Account of each Partner
and the Carrying Value of each Partnership property immediately prior to such issuance shall be
adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such
Partnership property, as if such Unrealized Gain or Unrealized Loss had been recognized on an
actual sale of each such property for an amount equal to its fair market value immediately prior to
such issuance and had been allocated to the Partners at such time pursuant to Section 6.1(c) in the
same manner as any item of gain or loss actually recognized following an event giving rise to the
liquidation of the Partnership would have been allocated. In determining such Unrealized Gain or
Unrealized Loss, the aggregate cash amount and fair market value of all Partnership assets
(including cash or cash equivalents) immediately prior to the issuance of additional Partnership
Interests shall be determined by the General Partner using such method of valuation as it may
adopt; provided, however, that the General Partner, in arriving at such valuation, must take fully
into account the fair market value of the Partnership Interests of all Partners at such time. The
General Partner shall allocate such aggregate value among the assets of the Partnership (in such
manner as it determines) to arrive at a fair market value for individual properties.
(ii) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), immediately prior to
any actual or deemed distribution to a Partner of any Partnership property (other than a
distribution of cash that is not in redemption or retirement of a Partnership Interest), the
Capital Accounts of all Partners and the Carrying Value of all Partnership property shall be
adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such
Partnership property, as if such Unrealized Gain or Unrealized Loss had been recognized in a sale
of such property immediately prior to such distribution for an amount equal to its fair market
value, and had been allocated to the Partners, at such time, pursuant to Section 6.1(c) in the same
manner as any item of gain or loss actually recognized following an event giving rise to the
liquidation of the Partnership would have been allocated. In determining such Unrealized Gain or
Unrealized Loss the aggregate cash amount and fair market value of all Partnership assets
(including cash or cash equivalents) immediately prior to a distribution shall (A) in the case of
an actual distribution that is not made pursuant to Section 12.4 or in the case of a deemed
distribution, be determined and allocated in the same manner as that provided in Section 5.5(d)(i)
or (B) in the case of a liquidating distribution pursuant to Section 12.4, be determined and
allocated by the Liquidator using such method of valuation as it may adopt.
Section 5.6
Issuances of Additional Partnership Securities.
(a) The Partnership may issue additional Partnership Securities and options, rights, warrants,
restricted units and appreciation rights relating to the Partnership Securities for any Partnership
purpose at any time
and from time to time to such Persons for such consideration and on such terms and conditions
as the General Partner shall determine, all without the approval of any Limited Partners.
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(b) Each additional Partnership Security authorized to be issued by the Partnership pursuant
to Section 5.6(a) may be issued in one or more classes, or one or more series of any such classes,
with such designations, preferences, rights, powers and duties (which may be senior to existing
classes and series of Partnership Securities), as shall be fixed by the General Partner, including
(i) the right to share in Partnership profits and losses or items thereof; (ii) the right to share
in Partnership distributions; (iii) the rights upon dissolution and liquidation of the Partnership;
(iv) whether, and the terms and conditions upon which, the Partnership may or shall be required to
redeem the Partnership Security; (v) whether such Partnership Security is issued with the privilege
of conversion or exchange and, if so, the terms and conditions of such conversion or exchange; (vi)
the terms and conditions upon which each Partnership Security will be issued, evidenced by
certificates and assigned or transferred; (vii) the method for determining the Percentage Interest
as to such Partnership Security; and (viii) the right, if any, of each such Partnership Security to
vote on Partnership matters, including matters relating to the relative rights, preferences and
privileges of such Partnership Security.
(c) The General Partner shall take all actions that it determines to be necessary or
appropriate in connection with (i) each issuance of Partnership Securities and options, rights,
warrants and appreciation rights relating to Partnership Securities pursuant to this Section 5.6 or
Section 7.4(c), (ii) the conversion of the General Partner Interest (represented by General Partner
Units) or any Incentive Distribution Rights into Units pursuant to the terms of this Agreement,
(iii) the issuance of Common Units pursuant to Section 5.11, (iv) the admission of Additional
Limited Partners and (v) all additional issuances of Partnership Securities. The General Partner
shall determine the relative rights, powers and duties of the holders of the Units or other
Partnership Securities being so issued. The General Partner shall do all things necessary to comply
with the Delaware Act and is authorized and directed to do all things that it determines to be
necessary or appropriate in connection with any future issuance of Partnership Securities or in
connection with the conversion of the General Partner Interest or any Incentive Distribution Rights
into Units pursuant to the terms of this Agreement, including compliance with any statute, rule,
regulation or guideline of any federal, state or other governmental agency or any National
Securities Exchange on which the Units or other Partnership Securities are listed or admitted to
trading.
(d) No fractional Units shall be issued by the Partnership.
Section 5.7
Conversion of Subordinated Units.
(a) All outstanding Subordinated Units shall convert into Common Units on a one-for-one basis
on the first Business Day of any Quarter beginning after September 30, 2013 in respect of which:
(i) distributions of Available Cash from Operating Surplus on each of the Outstanding Common
Units, Subordinated Units and General Partner Units and any other Outstanding Units that are senior
or equal in right of distribution to the Subordinated Units with respect to each of the three
consecutive, non-overlapping four-Quarter periods immediately preceding such date equaled or
exceeded the sum of the Minimum Quarterly Distribution on all Outstanding Common Units,
Subordinated Units and General Partner Units and any other Outstanding Units that are senior or
equal in right of distribution to the Subordinated Units during such periods;
(ii) the Adjusted Operating Surplus generated during each of the three consecutive,
non-overlapping four-Quarter periods immediately preceding such date equaled or exceeded the sum of
the Minimum Quarterly Distribution on all of the Common Units, Subordinated Units and General
Partner Units and any other Units that are senior or equal in right of distribution to the
Subordinated Units that were Outstanding during such periods on a Fully Diluted Basis; and
(iii) there are no Cumulative Common Unit Arrearages.
(b) Notwithstanding Section 5.7(a), the Subordination Period shall terminate and all
Outstanding Subordinated Units shall convert into Common Units on a one-for-one basis on the first
Business Day following the
distribution of Available Cash to Partners pursuant to Section 6.3(a) in respect of any
Quarter ending on or after September 30, 2011 in respect of
which:
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(i) distributions of Available Cash from Operating Surplus under Section 6.4(b)(i) on each of
the Outstanding Common Units, Subordinated Units and General Partner Units and any other
Outstanding Units that are senior or equal in right of distribution to the Subordinated Units with
respect to the four-Quarter period immediately preceding such date equaled or exceeded the sum of
the Third Target Distribution on all of the Outstanding Common Units, Subordinated Units and
General Partner Units and any other Outstanding Units that are senior or equal in right of
distribution to the Subordinated Units during such period;
(ii) the Adjusted Operating Surplus generated during the four-Quarter period immediately
preceding such date equaled or exceeded the sum of the Third Target Distribution on all of the
Common Units, Subordinated Units and General Partner Units and any other Outstanding Units that are
senior or equal in right of distribution to the Subordinated Units that were Outstanding during
such period on a Fully Diluted Basis; and
(iii) there are no Cumulative Common Unit Arrearages.
(c) Notwithstanding any other provision of this Agreement, all of the then Outstanding
Subordinated Units will automatically convert into Common Units on a one-for-one basis as set forth
in, and pursuant to the terms of, Section 11.4.
(d) A Subordinated Unit that has converted into a Common Unit shall be subject to the
provisions of Section 6.7(b) and Section 6.7(c).
(e) For purposes of determining whether the test in Section 5.7(a)(ii) above has been
satisfied, Adjusted Operating Surplus will be adjusted upwards or downwards if a Conflicts
Committee determines in good faith that the amount of Estimated Reserve Replacement Expenditures
used in the determination of Adjusted Operating Surplus in Section 5.7(a)(ii) was materially
incorrect, based on circumstances prevailing at the time of original determination of Estimated
Reserve Replacement Expenditures, for any one or more of the preceding two four-Quarter periods.
Section 5.8
Limited Preemptive Right.
Except as provided in this Section 5.8 and in Section 5.2, no Person shall have any
preemptive, preferential or other similar right with respect to the issuance of any Partnership
Security, whether unissued, held in the treasury or hereafter created. The General Partner shall
have the right, which it may from time to time assign in whole or in part to any of its Affiliates,
to purchase Partnership Securities from the Partnership whenever, and on the same terms that, the
Partnership issues Partnership Securities to Persons other than the General Partner and its
Affiliates, to the extent necessary to maintain the Percentage Interests of the General Partner and
its Affiliates equal to any or all of those Percentage Interests that existed immediately prior to
the issuance of such Partnership Securities.
Section 5.9
Splits and Combinations.
(a) Subject to Section 5.9(d), Section 6.6 and Section 6.9 (dealing with adjustments of
distribution levels), the Partnership may make a Pro Rata distribution of Partnership Securities to
all Record Holders or may effect a subdivision or combination of Partnership Securities so long as,
after any such event, each Partner shall have the same Percentage Interest in the Partnership as
before such event, and any amounts calculated on a per Unit basis (including any Common Unit
Arrearage or Cumulative Common Unit Arrearage) or stated as a number of Units are proportionately
adjusted.
(b) Whenever such a Pro Rata distribution or subdivision or combination of Partnership
Securities is declared, the General Partner shall select a Record Date as of which the
distribution, subdivision or combination shall be effective and shall send notice thereof at least
20 days prior to such Record Date to each Record Holder as of a date not less than 10 days prior to
the date of such notice. The General Partner also may cause a firm of independent public
accountants selected by it to calculate the number of Partnership Securities to be held by each
Record Holder after giving effect to such distribution, subdivision or combination. The
General Partner shall be entitled to rely on any certificate provided by such firm as conclusive
evidence of the accuracy of such calculation.
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(c) Promptly following any such distribution, subdivision or combination, the Partnership may
issue Certificates or uncertificated Partnership Securities to the Record Holders of Partnership
Securities as of the applicable Record Date representing the new number of Partnership Securities
held by such Record Holders, or the General Partner may adopt such other procedures that it
determines to be necessary or appropriate to reflect such changes. If any such combination results
in a smaller total number of Partnership Securities Outstanding, the Partnership shall require, as
a condition to the delivery to a Record Holder of such new Certificate or uncertificated
Partnership Securities, the surrender of any Certificate held by such Record Holder immediately
prior to such Record Date.
(d) The Partnership shall not issue fractional Units upon any distribution, subdivision or
combination of Units. If a distribution, subdivision or combination of Units would result in the
issuance of fractional Units but for the provisions of this Section 5.9(d), each fractional Unit
shall be rounded to the nearest whole Unit (and a 0.5 Unit shall be rounded to the next higher
Unit).
Section 5.10
Fully Paid and Non-Assessable Nature of Limited
Partner Interests.
All Limited Partner Interests issued pursuant to, and in accordance with the requirements of,
this Article V shall be fully paid and non-assessable Limited Partner Interests in the Partnership,
except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the
Delaware Act.
Section 5.11
Issuance of Common Units in Connection with Reset of
Incentive Distribution Rights.
(a) Subject to the provisions of this Section 5.11, the holder of the Incentive Distribution
Rights (or, if there is more than one holder of the Incentive Distribution Rights, the holders of a
majority in interest of the Incentive Distribution Rights) shall have the right, at any time when
there are no Subordinated Units outstanding and the Partnership has made a distribution pursuant to
Section 6.4(b)(ii)(E) for each of the four most recently completed Quarters and the amount of each
such distribution did not exceed Adjusted Operating Surplus for such Quarter, to make an election
(the “IDR Reset Election”) to cause the Minimum Quarterly Distribution and the Target Distributions
to be reset in accordance with the provisions of Section 5.11(e) and, in connection therewith, the
holder or holders of the Incentive Distribution Rights will become entitled to receive their
respective proportionate share of a number of Common Units (the “IDR Reset Common Units”) derived
by dividing (i) the average of the aggregate amount of cash distributions made by the Partnership
for each of the two full Quarters immediately preceding the giving of the Reset Notice (as defined
in Section 5.11(b)) in respect of the Incentive Distribution Rights by (ii) the average cash
distribution per Common Unit made by the Partnership for each of the two full Quarters immediately
preceding the giving of the Reset Notice (the number of such Common Units so determined by such
quotient are referred to herein as the “Aggregate Quantity of IDR Reset Common Units”). If at the
time of any IDR Reset Election the General Partner and its Affiliates are not the holders of a
majority interest of the Incentive Distribution Rights, then the IDR Reset Election shall be
subject to the prior written concurrence of the General Partner that the conditions described in
the immediately preceding sentence have been satisfied. Upon the issuance of such IDR Reset Common
Units, the Partnership will issue to the General Partner that number of additional General Partner
Units equal to the product of (x) the quotient obtained by dividing (A) the Percentage Interest of
the General Partner immediately prior to such issuance by (B) a percentage equal to 100% less such
Percentage Interest and (y) the number of such IDR Reset Common Units, and the General Partner
shall not be obligated to make any additional Capital Contribution to the Partnership in exchange
for such issuance. The making of the IDR Reset Election in the manner specified in Section 5.11(b)
shall cause the Minimum Quarterly Distribution and the Target Distributions to be reset in
accordance with the provisions of Section 5.11(e) and, in connection therewith, the holder or
holders of the Incentive Distribution Rights will become entitled to receive IDR Reset Common Units
and the General Partner will become entitled to receive General Partner Units on the basis
specified above, without any further approval required by the General Partner or the Unitholders,
at the time specified in Section 5.11(c) unless the IDR Reset Election is rescinded pursuant to
Section 5.11(d).
(b) To exercise the right specified in Section 5.11(a), the holder of the Incentive
Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the
holders of a majority in interest of the Incentive Distribution Rights) shall deliver a written
notice (the “Reset Notice”) to the Partnership. Within 10 Business Days after the receipt by the
Partnership of such Reset Notice, the Partnership shall deliver a written notice
33
to the holder or holders of the Incentive Distribution Rights of the Partnership’s determination of the aggregate
number of IDR Reset Common Units that each holder of Incentive Distribution Rights will be entitled
to receive.
(c) The holder or holders of the Incentive Distribution Rights will be entitled to receive the
Aggregate Quantity of IDR Reset Common Units and the General Partner will become entitled to
receive related additional General Partner Units on the fifteenth Business Day after receipt by the
Partnership of the Reset Notice; provided, however, that the issuance of the IDR Reset Common Units
to the holder or holders of the Incentive Distribution Rights shall not occur prior to the approval
of the listing or admission for trading of such IDR Reset Common Units by the principal National
Securities Exchange upon which the Common Units are then listed or admitted for trading if any such
approval is required pursuant to the rules and regulations of such National Securities Exchange.
(d) If the principal National Securities Exchange upon which the Common Units are then traded
has not approved the listing or admission for trading of the Aggregate Quantity of IDR Reset Common
Units on or before the 30th calendar day following the Partnership’s receipt of the Reset Notice
and such approval is required by the rules and regulations of such National Securities Exchange,
then the holder of the Incentive Distribution Rights (or, if there is more than one holder of the
Incentive Distribution Rights, the holders of a majority in interest of the Incentive Distribution
Rights) shall have the right to either rescind the IDR Reset Election or elect to receive other
Partnership Securities having such terms as the General Partner may approve, with the approval of a
Conflicts Committee, that will provide (i) the same economic value, in the aggregate, as the
Aggregate Quantity of IDR Reset Common Units would have had at the time of the Partnership’s
receipt of the Reset Notice, as determined by the General Partner, and (ii) for the subsequent
conversion (on terms acceptable to the National Securities Exchange upon which the Common Units are
then traded) of such Partnership Securities into Common Units within not more than 12 months
following the Partnership’s receipt of the Reset Notice upon the satisfaction of one or more
conditions that are reasonably acceptable to the holder of the Incentive Distribution Rights (or,
if there is more than one holder of the Incentive Distribution Rights, the holders of a majority in
interest of the Incentive Distribution Rights).
(e) The Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution
and Third Target Distribution shall be adjusted at the time of the issuance of Common Units or
other Partnership Securities pursuant to this Section 5.11 such that (i) the Minimum Quarterly
Distribution shall be reset to equal the average cash distribution amount per Common Unit for the
two Quarters immediately prior to the Partnership’s receipt of the Reset Notice (the “Reset MQD”),
(ii) the First Target Distribution shall be reset to equal 115% of the Reset MQD, (iii) the Second
Target Distribution shall be reset to equal 125% of the Reset MQD and (iv) the Third Target
Distribution shall be reset to equal 150% of the Reset MQD.
(f) Upon the issuance of IDR Reset Common Units pursuant to Section 5.11(a), the Capital
Account maintained with respect to the Incentive Distribution Rights will (i) first, be allocated
to IDR Reset Common Units in an amount equal to the product of (A) the Aggregate Quantity of IDR
Reset Common Units and (B) the Per Unit Capital Amount for an Initial Common Unit, and (B) second,
as to any remaining balance in such Capital Account, will be retained by the holder of the
Incentive Distribution Rights. If there is not sufficient capital associated with the Incentive
Distribution Rights to allocate the full Per Unit Capital Amount for an Initial Common Unit to the
IDR Reset Common Units in accordance with clause (i) of this Section 5.11(f), the IDR Reset Common
Units shall be subject to Sections 6.1(d)(x)(B) and (C).
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
Section 6.1
Allocations for Capital Account Purposes.
For purposes of maintaining the Capital Accounts and in determining the rights of the Partners
among themselves, the Partnership’s items of income, gain, loss and deduction (computed in
accordance with Section 5.5(b)) shall be allocated among the Partners in each taxable year (or
portion thereof) as provided herein below.
(a) Net Income. After giving effect to the special allocations set forth in Section 6.1(d),
Net Income for each taxable year and all items of income, gain, loss and deduction taken into
account in computing Net Income for such taxable year shall be allocated as follows:
34
(i) First, 100% to the General Partner, in an amount equal to the aggregate Net Losses
allocated to the General Partner pursuant to Section 6.1(b)(ii) for all previous taxable years
until the aggregate Net Income allocated to the General Partner pursuant to this Section 6.1(a)(i)
for the current taxable year and all previous taxable years is equal to the aggregate Net Losses
allocated to the General Partner pursuant to Section 6.1(b)(ii) for all previous taxable years;
(ii) Second, the balance, if any, 100% to the General Partner and the Unitholders, in
accordance with their respective Percentage Interests.
(b) Net Losses. After giving effect to the special allocations set forth in Section 6.1(d),
Net Losses for each taxable period and all items of income, gain, loss and deduction taken into
account in computing Net Losses for such taxable period shall be allocated as follows:
(i) First, 100% to the General Partner and the Unitholders, in accordance with their
respective Percentage Interests; provided, that Net Losses shall not be allocated pursuant to this
Section 6.1(b)(i) to the extent that such allocation would cause any Unitholder to have a deficit
balance in its Adjusted Capital Account at the end of such taxable year (or increase any existing
deficit balance in its Adjusted Capital Account); and
(ii) Second, the balance, if any, 100% to the General Partner.
(c) Net Termination Gains and Losses. After giving effect to the special allocations set
forth in Section 6.1(d), all items of income, gain, loss and deduction taken into account in
computing Net Termination Gain or Net Termination Loss for such taxable period shall be allocated
in the manner set forth in this Section 6.1(c). All allocations under this Section 6.1(c) shall be
made after Capital Account balances have been adjusted by all other allocations provided under this
Section 6.1 and after all distributions of Available Cash provided under Section 6.4 and Section
6.5 have been made; provided, however, that solely for purposes of this Section 6.1(c), Capital
Accounts shall not be adjusted for distributions made pursuant to Section 12.4.
(i) Except as set forth in Section 6.1(c)(iv), if a Net Termination Gain is recognized, such
Net Termination Gain shall be allocated among the Partners in the following manner (and the Capital
Accounts of the Partners shall be increased by the amount so allocated in each of the following
subclauses, in the order listed, before an allocation is made pursuant to the next succeeding
subclause):
(A) First, to each Partner having a deficit balance in its Capital Account, in the proportion
that such deficit balance bears to the total deficit balances in the Capital Accounts of all
Partners, until each such Partner has been allocated Net Termination Gain equal to any such deficit
balance in its Capital Account;
(B) Second, (x) to the General Partner in accordance with its Percentage Interest and (y) to
all Unitholders holding Common Units, Pro Rata, a percentage equal to 100% less the percentage
applicable to subclause (x) of this clause (B), until the Capital Account in respect of each Common
Unit then Outstanding is equal to the sum of (1) its Unrecovered Initial Unit Price, (2) the
Minimum Quarterly Distribution for the Quarter during which the Liquidation Date occurs, reduced by
any distribution pursuant to Section 6.4(b)(i)(A) or Section 6.4(b)(ii)(A) with respect to such Common Unit for such Quarter (the amount determined
pursuant to this clause (2) is hereinafter defined as the “Unpaid MQD”) and (3) any then existing
Cumulative Common Unit Arrearage;
(C) Third, if such Net Termination Gain is recognized (or is deemed to be recognized) prior to
the conversion of the last Outstanding Subordinated Unit into a Common Unit, (x) to the General
Partner in accordance with its Percentage Interest and (y) to all Unitholders holding Subordinated
Units, Pro Rata, a percentage equal to 100% less the percentage applicable to subclause (x) of this
clause (C), until the Capital Account in respect of each Subordinated Unit then Outstanding equals
the sum of (1) its Unrecovered Initial Unit Price, determined for the taxable year (or portion
thereof) to which this allocation of gain relates and (2) the Minimum Quarterly Distribution for
the Quarter during which the Liquidation Date occurs, reduced by any distribution pursuant to
Section 6.4(b)(i)(C) with respect to such Subordinated Unit for such Quarter;
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(D) Fourth, 100% to the General Partner and all Unitholders in accordance with their
respective Percentage Interests, until the Capital Account in respect of each Common Unit then
Outstanding is equal to the sum of (1) its Unrecovered Initial Unit Price, (2) the Unpaid MQD, (3)
any then existing Cumulative Common Unit Arrearage, and (4) the excess of (aa) the First Target
Distribution less the Minimum Quarterly Distribution for each Quarter that ends after the IPO
Closing Date over (bb) the cumulative per Unit amount of any distributions of Available Cash that
is deemed to be Operating Surplus made pursuant to Section 6.4(b)(i)(D) and Section 6.4(b)(ii)(B)
(the sum of (1), (2), (3) and (4) is defined as the “First Liquidation Target Amount”);
(E) Fifth, (x) to the General Partner in accordance with its Percentage Interest, (y) 13% to
the holders of the Incentive Distribution Rights, Pro Rata, and (z) to all Unitholders, Pro Rata, a
percentage equal to 100% less the sum of the percentages applicable to subclauses (x) and (y) of
this clause (E), until the Capital Account in respect of each Common Unit then Outstanding is equal
to the sum of (1) the First Liquidation Target Amount, and (2) the excess of (aa) the Second Target
Distribution less the First Target Distribution for each Quarter that ends after the IPO Closing
Date over (bb) the cumulative per Unit amount of any distributions of Available Cash that is deemed
to be Operating Surplus made pursuant to Section 6.4(b)(i)(E) and Section 6.4(b)(ii)(C) (the sum of
(1) and (2) is defined as the “Second Liquidation Target Amount”);
(F) Sixth, (x) to the General Partner in accordance with its Percentage Interest, (y) 23% to
the holders of the Incentive Distribution Rights, Pro Rata, and (z) to all Unitholders, Pro Rata, a
percentage equal to 100% less the sum of the percentages applicable to subclauses (x) and (y) of
this clause (F), until the Capital Account in respect of each Common Unit then Outstanding is equal
to the sum of (1) the Second Liquidation Target Amount, and (2) the excess of (aa) the Third Target
Distribution less the Second Target Distribution for each Quarter that ends after the IPO Closing
Date over (bb) the cumulative per Unit amount of any distributions of Available Cash that is deemed
to be Operating Surplus made pursuant to Section 6.4(b)(i)(F) and Section 6.4(b)(ii)(D); and
(G) Finally, (x) to the General Partner in accordance with its Percentage Interest, (y) 48%
to the holders of the Incentive Distribution Rights, Pro Rata, and (z) to all Unitholders, Pro
Rata, a percentage equal to 100% less the sum of the percentages applicable to subclauses (x) and
(y) of this clause (G).
(ii) Except as set forth in Section 6.1(c)(iii), if a Net Termination Loss is recognized, such
Net Termination Loss shall be allocated among the Partners in the following manner:
(A) First, if such Net Termination Loss is recognized prior to the conversion of the last
Outstanding Subordinated Unit, (x) to the General Partner in accordance with its Percentage
Interest and (y) to all Unitholders holding Subordinated Units, Pro Rata, a percentage equal to
100% less the percentage applicable to subclause (x) of this clause (A), until the Capital Account
in respect of each Subordinated Unit then Outstanding has been reduced to zero;
(B) Second, (x) to the General Partner in accordance with its Percentage Interest and (y) to
all Unitholders, Pro Rata, a percentage equal to 100% less the percentage applicable to subclause
(x) of this clause (B), until the Capital Account in respect of each Unit then Outstanding has been
reduced to zero; and
(C) Third, the balance, if any, 100% to the General Partner.
(iii) Any Net Termination Loss deemed recognized pursuant to Section 5.5(d) prior to the
Liquidation Date shall be allocated among the Partners in the following manner:
(A) First, 100% to the General Partner and the Unitholders in accordance with their respective
Percentage Interests until the Capital Account in respect of each Unit then Outstanding has been
reduced to zero; and
(B) Second, the balance, if any, 100% to the General Partner.
36
(iv) If a Net Termination Loss has been allocated pursuant to Section 6.1(c)(iii), any
subsequent Net Termination Gain deemed recognized pursuant to Section 5.5(d) prior to the
Liquidation Date shall be allocated among the Partners in the following manner:
(A) First, 100% to the General Partner until the aggregate Net Termination Gain allocated to
the General Partner pursuant to this clause (A) is equal to the aggregate Net Termination Loss
previously allocated pursuant to Section 6.1(c)(iii)(B);
(B) Second, 100% to the General Partner and the Unitholders in accordance with their
respective Percentage Interests until the aggregate Net Termination Gain allocated pursuant to this
clause (B) is equal to the aggregate Net Termination Loss previously allocated pursuant to
Section 6.1(c)(iii)(A); and
(C) Third, the balance, if any, pursuant to the provisions of Section 6.1(c)(i).
(d) Special Allocations. Notwithstanding any other provision of this Section 6.1, the
following special allocations shall be made for such taxable period:
(i) Partnership Minimum Gain Chargeback. Notwithstanding any other provision of this Section
6.1, if there is a net decrease in Partnership Minimum Gain during any Partnership taxable period,
each Partner shall be allocated items of Partnership income and gain for such period (and, if
necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections
1.704-2(f)(6), 1.704-2(g)(2) and 1.704-2(j)(2)(i), or any successor provision. For purposes of this
Section 6.1(d), each Partner’s Adjusted Capital Account balance shall be determined, and the
allocation of income or gain required hereunder shall be effected, prior to the application of any
other allocations pursuant to this Section 6.1(d) with respect to such taxable period (other than
an allocation pursuant to Section 6.1(d)(vi) and Section 6.1(d)(vii)). This Section 6.1(d)(i) is
intended to comply with the Partnership Minimum Gain chargeback requirement in Treasury Regulation
Section 1.704-2(f) and shall be interpreted consistently therewith.
(ii) Chargeback of Partner Nonrecourse Debt Minimum Gain. Notwithstanding the other
provisions of this Section 6.1 (other than Section 6.1(d)(i)), except as provided in Treasury
Regulation Section 1.704-2(i)(4), if there is a net decrease in Partner Nonrecourse Debt Minimum
Gain during any Partnership taxable period, any Partner with a share of Partner Nonrecourse Debt
Minimum Gain at the beginning of such taxable period shall be allocated items of Partnership income
and gain for such period (and, if necessary, subsequent periods) in the manner and amounts provided
in Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii), or any successor provisions.
For purposes of this Section 6.1(d), each Partner’s Adjusted Capital Account balance shall be
determined, and the allocation of income or gain required hereunder shall be effected, prior to the
application of any other allocations pursuant to this Section 6.1(d), other than Section 6.1(d)(i)
and other than an allocation pursuant to Section 6.1(d)(vi) and Section 6.1(d)(vii), with respect
to such taxable period. This Section 6.1(d)(ii) is intended to comply with the chargeback of items
of income and gain requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be
interpreted consistently therewith.
(iii) Priority Allocations.
(A) If the amount of cash or the Net Agreed Value of any property distributed (except cash or
property distributed pursuant to Section 12.4) to any Unitholder with respect to its Units for a
taxable year is greater (on a per Unit basis) than the amount of cash or the Net Agreed Value of
property distributed to the other Unitholders with respect to their Units (on a per Unit basis),
then (1) there shall be allocated gross income and gain to each Unitholder receiving such greater
cash or property distribution until the aggregate amount of such items allocated pursuant to this
Section 6.1(d)(iii)(A) for the current taxable year and all previous taxable years is equal to the
product of (aa) the amount by which the distribution (on a per Unit basis) to such Unitholder
exceeds the distribution (on a per Unit basis) to the Unitholders receiving the smallest
distribution and (bb) the number of Units owned by the Unitholder receiving the greater
distribution; and (2) the General Partner shall be allocated gross income and gain in an aggregate
amount equal to the product obtained by multiplying (aa) the quotient determined by dividing (x)
the General Partner’s Percentage Interest at the time in which the greater cash or property
distribution occurs by (y) the sum of 100 less the General Partner’s Percentage Interest at the
time in which the greater cash or property distribution occurs times (bb) the sum of the amounts
allocated in clause (1) above.
37
(B) After the application of Section 6.1(d)(iii)(A), all or any portion of the remaining items
of Partnership gross income or gain for the taxable period, if any, shall be allocated (1) to the
holders of Incentive Distribution Rights, Pro Rata, until the aggregate amount of such items
allocated to the holders of Incentive Distribution Rights pursuant to this Section 6.1(d)(iii)(B)
for the current taxable year and all previous taxable years is equal to the cumulative amount of
all Incentive Distributions made to the holders of Incentive Distribution Rights from the
Contribution Agreement Closing Date to a date 45 days after the end of the current taxable year;
and (2) to the General Partner an amount equal to the product of (aa) an amount equal to the
quotient determined by dividing (x) the General Partner’s Percentage Interest by (y) the sum of 100
less the General Partner’s Percentage Interest times (bb) the sum of the amounts allocated in
clause (1) above.
(iv) Qualified Income Offset. In the event any Partner unexpectedly receives any adjustments,
allocations or distributions described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall be
specially allocated to such Partner in an amount and manner sufficient to eliminate, to the extent
required by the Treasury Regulations promulgated under Section 704(b) of the Code, the deficit
balance, if any, in its Adjusted Capital Account created by such adjustments, allocations or
distributions as quickly as possible unless such deficit balance is otherwise eliminated pursuant
to Section 6.1(d)(i) or Section 6.1(d)(ii).
(v) Gross Income Allocations. In the event any Partner has a deficit balance in its Capital
Account at the end of any Partnership taxable period in excess of the sum of (A) the amount such
Partner is required to restore pursuant to the provisions of this Agreement and (B) the amount such
Partner is deemed obligated to restore pursuant to Treasury Regulation Sections 1.704-2(g) and
1.704-2(i)(5), such Partner shall be specially allocated items of Partnership income and gain in
the amount of such excess as quickly as possible; provided, that an allocation pursuant to this
Section 6.1(d)(v) shall be made only if and to the extent that such Partner would have a deficit
balance in its Capital Account as adjusted after all other allocations provided for in this Section
6.1 have been tentatively made as if this Section 6.1(d)(v) were not in this Agreement.
(vi) Nonrecourse Deductions. Nonrecourse Deductions for any taxable period shall be allocated
to the Partners in accordance with their respective Percentage Interests. If the General Partner
determines that the Partnership’s Nonrecourse Deductions should be allocated in a different ratio
to satisfy the safe harbor requirements of the Treasury Regulations promulgated under Section
704(b) of the Code, the General Partner is authorized, upon notice to the other Partners, to revise
the prescribed ratio to the numerically closest ratio that does satisfy such requirements.
(vii) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any taxable period
shall be allocated 100% to the Partner that bears the Economic Risk of Loss with respect to the
Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in
accordance with Treasury Regulation Section 1.704-2(i). If more than one Partner bears the Economic
Risk of Loss with respect to a Partner Nonrecourse Debt, such Partner Nonrecourse Deductions
attributable thereto shall be allocated between or among such Partners in accordance with the
ratios in which they share such Economic Risk of Loss.
(viii) Nonrecourse Liabilities. For purposes of Treasury Regulation Section 1.752-3(a)(3),
the Partners agree that Nonrecourse Liabilities of the Partnership in excess of the sum of (A) the
amount of Partnership Minimum Gain and (B) the total amount of Nonrecourse Built-in Gain shall be
allocated among the Partners in accordance with their respective Percentage Interests.
(ix) Code Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of
any Partnership asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital
Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain
(if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such
basis), and such item of gain or loss shall be specially allocated to the Partners in a manner
consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to
such Section of the Treasury Regulations.
38
(x) Economic Uniformity.
(A) At the election of the General Partner with respect to any taxable period ending upon, or
after, the termination of the Subordination Period, all or a portion of the remaining items of
Partnership gross income or gain for such taxable period, after taking into account allocations
pursuant to Section 6.1(d)(iii), shall be allocated 100% to each Partner holding Subordinated Units
that are Outstanding as of the termination of the Subordination Period (“Final Subordinated Units”)
in the proportion of the number of Final Subordinated Units held by such Partner to the total
number of Final Subordinated Units then Outstanding, until each such Partner has been allocated an
amount of gross income or gain that increases the Capital Account maintained with respect to such
Final Subordinated Units to an amount equal to the product of (A) the number of Final Subordinated
Units held by such Partner and (B) the Per Unit Capital Amount for a Common Unit. The purpose of
this allocation is to establish uniformity between the Capital Accounts underlying Final
Subordinated Units and the Capital Accounts underlying Common Units held by Persons other than the
General Partner and its Affiliates immediately prior to the conversion of such Final Subordinated
Units into Common Units. This allocation method for establishing such economic uniformity will be
available to the General Partner only if the method for allocating the Capital Account maintained
with respect to the Subordinated Units between the transferred and retained Subordinated Units
pursuant to Section 5.5(c)(ii) does not otherwise provide such economic uniformity to the Final
Subordinated Units.
(B) With respect to an event triggering an adjustment to the Carrying Value of Partnership
property pursuant to Section 5.5(d) during any taxable period of the Partnership ending upon, or
after, the issuance of IDR Reset Common Units pursuant to Section 5.11, after the application of
Section 6.1(d)(x)(A), any Unrealized Gains and Unrealized Losses shall be allocated among the
Partners in a manner that to the nearest extent possible results in the Capital Accounts maintained
with respect to such IDR Reset Common Units equaling the product of (A) the Aggregate Quantity of
IDR Reset Common Units and (B) the Per Unit Capital Amount for an Initial Common Unit.
(C) With respect to any taxable period during which an IDR Reset Common Unit is transferred to
any Person who is not an Affiliate of the transferor, all of a portion of the remaining items of
Partnership gross income or gain for such taxable period shall be allocated 100% to the transferor
Partner of such transferred IDR Reset Common Unit until such transferor Partner has been allocated
an amount of gross income or gain that increases the Capital Account maintained with respect to
such transferred IDR Reset Common Unit to an amount equal to the Per Unit Capital Amount for an
Initial Common Unit.
(xi) Curative Allocation.
(A) Notwithstanding any other provision of this Section 6.1, other than the Required
Allocations, the Required Allocations shall be taken into account in making the Agreed Allocations
so that, to the extent possible, the net amount of items of income, gain, loss and deduction
allocated to each Partner pursuant to the Required Allocations and the Agreed Allocations,
together, shall be equal to the net amount of such items that would have been allocated to each
such Partner under the Agreed Allocations had the Required Allocations and the related Curative
Allocation not otherwise been provided in this Section 6.1. Notwithstanding the preceding sentence,
Required Allocations relating to (1) Nonrecourse Deductions shall not be taken into account except
to the extent that there has been a decrease in Partnership Minimum Gain and (2) Partner
Nonrecourse Deductions shall not be taken into account except to the extent that there has been a decrease in Partner Nonrecourse Debt
Minimum Gain. Allocations pursuant to this Section 6.1(d)(xi)(A) shall only be made with respect to
Required Allocations to the extent the General Partner determines that such allocations will
otherwise be inconsistent with the economic agreement among the Partners. Further, allocations
pursuant to this Section 6.1(d)(xi)(A) shall be deferred with respect to allocations pursuant to
clauses (1) and (2) hereof to the extent the General Partner determines that such allocations are
likely to be offset by subsequent Required Allocations.
(B) The General Partner shall, with respect to each taxable period, (1) apply the provisions
of Section 6.1(d)(xi)(A) in whatever order is most likely to minimize the economic distortions that
might otherwise result from the Required Allocations, and (2) divide all allocations pursuant to
Section 6.1(d)(xi)(A) among the Partners in a manner that is likely to minimize such economic
distortions.
(xii) Corrective and Other Allocations. In the event of any allocation of Additional Book
Basis Derivative Items or any Book-Down Event or any recognition of a Net Termination Loss, the
following rules shall apply:
39
(A) Except as provided in Section 6.1(d)(xii)(B), in the case of any allocation of Additional
Book Basis Derivative Items (other than an allocation of Unrealized Gain or Unrealized Loss under
Section 5.5(d)) with respect to any Partnership property, the General Partner shall allocate such
Additional Book Basis Derivative Items (1) to (aa) the holders of Incentive Distribution Rights and
(bb) the General Partner in the same manner that the Unrealized Gain or Unrealized Loss
attributable to such property is allocated pursuant to Section 5.5(d) and (2) to all Unitholders,
Pro Rata, to the extent that the Unrealized Gain or Unrealized Loss attributable to such property
is allocated to any Unitholders pursuant to Section 5.5(d).
(B) In the case of any allocation of Additional Book Basis Derivative Items (other than an
allocation of Unrealized Gain or Unrealized Loss under Section 5.5(d)) as a result of a sale or
other taxable disposition of any Partnership asset that is an Adjusted Property (“Disposed of
Adjusted Property”), the General Partner shall allocate (1) additional items of gross income and
gain (aa) away from the holders of Incentive Distribution Rights and (bb) to the Unitholders, or
(2) additional items of deduction and loss (aa) away from the Unitholders and (bb) to the holders
of Incentive Distribution Rights, to the extent that the Additional Book Basis Derivative Items
allocated to the Unitholders exceed their Share of Additional Book Basis Derivative Items with
respect to such Disposed of Adjusted Property. For this purpose, the Unitholders and the General
Partner shall be treated as being allocated Additional Book Basis Derivative Items to the extent
that such Additional Book Basis Derivative Items have reduced the amount of income that would
otherwise have been allocated to the Unitholders. Any allocation made pursuant to this Section
6.1(d)(xii)(B) shall be made after all of the other Agreed Allocations have been made as if this
Section 6.1(d)(xii) were not in this Agreement and, to the extent necessary, shall require the
reallocation of items that have been allocated pursuant to such other Agreed Allocations.
(C) In the case of any negative adjustments to the Capital Accounts of the Partners resulting
from a Book-Down Event or from the recognition of a Net Termination Loss, such negative adjustment
(1) shall first be allocated, to the extent of the Aggregate Remaining Net Positive Adjustments, in
such a manner, as determined by the General Partner, that to the extent possible the aggregate
Capital Accounts of the Partners will equal the amount that would have been the Capital Account
balance of the Partners if no prior Book-Up Events had occurred and (2) any negative adjustment in
excess of the Aggregate Remaining Net Positive Adjustments shall be allocated pursuant to Section
6.1(c).
(D) In making the allocations required under this Section 6.1(d)(xii), the General Partner may
apply whatever conventions or other methodology it determines will satisfy the purpose of this
Section 6.1(d)(xii). Without limiting the foregoing, if an Adjusted Property is contributed by the
Partnership to another entity classified or treated as a partnership for federal income tax
purposes (the “lower-tier partnership”), the General Partner may make allocations similar to those
described in Section 6.1(d)(xii)(A)-(C) to the extent the General Partner determines such
allocations are necessary to account for the Partnership’s allocable share of income, gain, loss
and deduction of the lower-tier partnership that relates to the contributed Adjusted Property in a
manner that is consistent with the purpose of this Section 6.1(d)(xii).
(xiii) Special Curative Allocation in the Event of Liquidation Prior to the End of the
Subordination Period. Notwithstanding any other provisions of this Section 6.1 (other than the
Required Allocations), if the Liquidation Date occurs prior to the conversion of the last
Outstanding Subordinated Unit, then items of income, gain, loss and deduction for the taxable year
that includes the Liquidation Date (and, if necessary, items arising in previous taxable periods to
the extent the General Partner determines such items may be so allocated) shall be specially
allocated among the Partners in the manner determined appropriate by the General Partner so as to
cause, to the maximum extent possible, the Capital Account in respect of each Common Unit to equal
the amount such Capital Account would have been if all prior allocations of Net Termination Gain
and Net Termination Loss had been made pursuant to Section 6.1(c)(i) or Section 6.1(c)(ii), as
applicable.
Section 6.2
Allocations for Tax Purposes.
(a) Except as otherwise provided herein, for federal income tax purposes, each item of income,
gain, loss and deduction shall be allocated among the Partners in the same manner as its
correlative item of “book” income, gain, loss or deduction is allocated pursuant to Section 6.1.
40
(b) In an attempt to eliminate Book-Tax Disparities attributable to a Contributed Property or
Adjusted Property, items of income, gain, loss, depreciation, amortization and cost recovery
deductions shall be allocated for federal income tax purposes among the Partners as follows:
(i) (A) In the case of a Contributed Property, such items attributable thereto shall be
allocated among the Partners in the manner provided under Section 704(c) of the Code that takes
into account the variation between the Agreed Value of such property and its adjusted basis at the
time of contribution and (B) any item of Residual Gain or Residual Loss attributable to a
Contributed Property shall be allocated among the Partners in the same manner as its correlative
item of “book” gain or loss is allocated pursuant to Section 6.1;
(ii) (A) In the case of an Adjusted Property, such items shall (1) first, be allocated among
the Partners in a manner consistent with the principles of Section 704(c) of the Code to take into
account the Unrealized Gain or Unrealized Loss attributable to such property and the allocations
thereof pursuant to Section 5.5(d)(i) or Section 5.5(d)(ii), and (2) second, in the event such
property was originally a Contributed Property, be allocated among the Partners in a manner
consistent with Section 6.2(b)(i)(A) and (B) any item of Residual Gain or Residual Loss
attributable to an Adjusted Property shall be allocated among the Partners in the same manner as
its correlative item of “book” gain or loss is allocated pursuant to Section 6.1; and
(iii) The General Partner shall apply the principles of Treasury Regulation Section 1.704-3(d)
to eliminate Book-Tax Disparities.
(c) For the proper administration of the Partnership and for the preservation of uniformity of
the Limited Partner Interests (or any class or classes thereof), the General Partner shall (i)
adopt such conventions as it deems appropriate in determining the amount of depreciation,
amortization and cost recovery deductions; (ii) make special allocations for federal income tax
purposes of income (including gross income) or deductions; and (iii) amend the provisions of this
Agreement as appropriate (x) to reflect the proposal or promulgation of Treasury Regulations under
Section 704(b) or Section 704(c) of the Code or (y) otherwise to preserve or achieve uniformity of
the Limited Partner Interests (or any class or classes thereof). The General Partner may adopt such
conventions, make such allocations and make such amendments to this Agreement as provided in this
Section 6.2(c) only if such conventions, allocations or amendments would not have a material
adverse effect on the Partners, the holders of any class or classes of Limited Partner Interests
issued and Outstanding or the Partnership, and if such allocations are consistent with the
principles of Section 704 of the Code.
(d) The General Partner may determine to depreciate or amortize the portion of an adjustment
under Section 743(b) of the Code attributable to unrealized appreciation in any Adjusted Property
(to the extent of the unamortized Book-Tax Disparity) using a predetermined rate derived from the
depreciation or amortization method and useful life applied to the unamortized Book-Tax Disparity
of such property, despite any inconsistency of such approach with Treasury Regulation Section
1.167(c)-l(a)(6), Treasury Regulation Section 1.197-2(g)(3), the legislative history to Section 743
or any successor regulations thereto. If the General Partner determines that such reporting
position cannot reasonably be taken, the General Partner may adopt depreciation and amortization
conventions under which all purchasers acquiring Limited Partner Interests in the same month
would receive depreciation and amortization deductions, based upon the same applicable rate as if
they had purchased a direct interest in the Partnership’s property. If the General Partner chooses
not to utilize such aggregate method, the General Partner may use any other depreciation and
amortization conventions to preserve the uniformity of the intrinsic tax characteristics of any
Limited Partner Interests, so long as such conventions would not have a material adverse effect on
the Limited Partners or the Record Holders of any class or classes of Limited Partner Interests.
(e) In accordance with Treasury Regulation Sections 1.1245-1(e) and 1.1250-1(f), any gain
allocated to the Partners upon the sale or other taxable disposition of any Partnership asset
shall, to the extent possible, after taking into account other required allocations of gain
pursuant to this Section 6.2, be characterized as Recapture Income in the same proportions and to
the same extent as such Partners (or their predecessors in interest) have been allocated any
deductions directly or indirectly giving rise to the treatment of such gains as Recapture Income.
(f) All items of income, gain, loss, deduction and credit recognized by the Partnership for federal income tax purposes and allocated to the Partners in accordance with the provisions hereof shall be determined without regard to any election under Section 754 of the Code that may be made by the Partnership; provided,
41
however, that such allocations, once made, shall be adjusted (in the manner determined by the General Partner) to take into account those adjustments permitted or required by Sections 734 and 743 of the Code.
(g) Each item of Partnership income, gain, loss and deduction, for federal income tax
purposes, shall be determined on an annual basis and prorated on a monthly basis and shall be
allocated to the Partners as of the first Business Day of each month; provided, however, that
following the Initial Public Offering such items for the period beginning on the IPO Closing Date
and ending on the last day of the month in which the Option Closing Date or the expiration of the
Over-Allotment Option occurs shall be allocated to the Partners as of the opening of the National
Securities Exchange on which the Common Units may then be listed or admitted to trading on the
first Business Day of the next succeeding month; and provided, further, that gain or loss on a sale
or other disposition of any assets of the Partnership or any other extraordinary item of income or
loss realized and recognized other than in the ordinary course of business, as determined by the
General Partner, shall be allocated to the Partners as of the first Business Day of the month in
which such gain or loss is recognized for federal income tax purposes. The General Partner may
revise, alter or otherwise modify such methods of allocation to the extent permitted or required by
Section 706 of the Code and the regulations or rulings promulgated thereunder.
(h) Allocations that would otherwise be made to a Limited Partner under the provisions of this
Article VI shall instead be made to the beneficial owner of Limited Partner Interests held by a
nominee in any case in which the nominee has furnished the identity of such owner to the
Partnership in accordance with Section 6031(c) of the Code or any other method determined by the
General Partner.
Section 6.3
Requirement and Characterization of Distributions;
Distributions to Record Holders.
(a) Within 45 days following the end of each Quarter, an amount equal to 100% of Available
Cash with respect to such Quarter shall, subject to Section 17-607 of the Delaware Act, be
distributed in accordance with this Article VI by the Partnership to the Partners as of the Record
Date selected by the General Partner. All amounts of Available Cash distributed by the Partnership
on any date following the IPO Closing Date from any source shall be deemed to be Operating Surplus
until the sum of all amounts of Available Cash distributed by the Partnership to the Partners
following the IPO Closing Date pursuant to Section 6.4(b) equals the Operating Surplus from the IPO
Closing Date through the close of the immediately preceding Quarter. Any remaining amounts of
Available Cash distributed by the Partnership on such date shall, except as otherwise provided in
Section 6.5, be deemed to be “Capital Surplus.” Notwithstanding any provision to the contrary
contained in this Agreement, the Partnership shall not make a distribution to any Partner on
account of its interest in the Partnership if such distribution would violate the Delaware Act or
any other applicable law.
(b) Notwithstanding the first three sentences of Section 6.3(a), in the event of the
dissolution and liquidation of the Partnership, all receipts received during or after the Quarter
in which the Liquidation Date occurs shall be applied and distributed solely in accordance with,
and subject to the terms and conditions of, Section 12.4.
(c) The General Partner may treat taxes paid by the Partnership on behalf of, or amounts
withheld with respect to, all or less than all of the Partners, as a distribution of Available Cash
to such Partners.
(d) Each distribution in respect of a Partnership Interest shall be paid by the Partnership,
directly or through the Transfer Agent or through any other Person or agent, only to the Record
Holder of such Partnership Interest as of the Record Date set for such distribution. Such payment
shall constitute full payment and satisfaction of the Partnership’s liability in respect of such
payment, regardless of any claim of any Person who may have an interest in such payment by reason
of an assignment or otherwise.
Section 6.4
Distributions of IPO Proceeds, Credit Facility
Proceeds and Available Cash from Operating Surplus
.
(a) Subject to Section 17-607 of the Delaware Act, on the IPO Closing Date and immediately
prior to the commencement of the Subordination Period, (i) the IPO Proceeds shall be distributed to
the Taxable Partners, pro rata, in accordance with their relative Percentage Interests immediately
prior to the closing of the Initial Public
42
Offering, and (ii) the Credit Facility Proceeds shall be
distributed to the Non-Taxable Partners, pro rata, in accordance with their relative Percentage
Interests immediately prior to the closing of the Initial Public Offering;
(b) (i) Subject to Section 17-607 of the Delaware Act and except as otherwise required in
respect of additional Partnership Securities issued pursuant to Section 5.6, Available Cash with
respect to any Quarter within the Subordination Period that is deemed to be Operating Surplus
pursuant to the provisions of Section 6.3 or 6.5 shall be distributed as follows:
(A) First, (x) to the General Partner in accordance with its Percentage Interest with respect
to its General Partner Units and (y) to the Unitholders holding Common Units, Pro Rata, a
percentage equal to 100% less the percentage applicable to subclause (x) of this clause (A), until
there has been distributed in respect of each Common Unit then Outstanding an amount equal to the
Minimum Quarterly Distribution for such Quarter;
(B) Second, (x) to the General Partner in accordance with its Percentage Interest with respect
to its General Partner Units and (y) to the Unitholders holding Common Units, Pro Rata, a
percentage equal to 100% less the percentage applicable to subclause (x) of this clause (B), until
there has been distributed in respect of each Common Unit then Outstanding an amount equal to the
Cumulative Common Unit Arrearage existing with respect to such Common Unit;
(C) Third, (x) to the General Partner in accordance with its Percentage Interest with respect
to its General Partner Units and (y) to the Unitholders holding Subordinated Units, Pro Rata, a
percentage equal to 100% less the percentage applicable to subclause (x) of this clause (C), until
there has been distributed in respect of each Subordinated Unit then Outstanding an amount equal to
the Minimum Quarterly Distribution for such Quarter;
(D) Fourth, to the General Partner and all Unitholders, in accordance with their respective
Percentage Interests, until there has been distributed in respect of each Unit then Outstanding an
amount equal to the excess of the First Target Distribution over the Minimum Quarterly Distribution
for such Quarter;
(E) Fifth, (x) to the General Partner in accordance with its Percentage Interest with respect
to its General Partner Units, (y) 13% to the holders of the Incentive Distribution Rights, Pro
Rata, and (z) to all Unitholders, Pro Rata, a percentage equal to 100% less the sum of the
percentages applicable to subclauses (x) and (y) of this clause (E), until there has been
distributed in respect of each Unit then Outstanding an amount equal to the excess of the Second
Target Distribution over the First Target Distribution for such Quarter;
(F) Sixth, (x) to the General Partner in accordance with its Percentage Interest with respect
to its General Partner Units, (y) 23% to the holders of the Incentive Distribution Rights, Pro
Rata, and (z) to all Unitholders, Pro Rata, a percentage equal to 100% less the sum of the
percentages applicable to subclauses (x) and (y) of this clause (F), until there has been
distributed in respect of each Unit then Outstanding an amount equal to the excess of the Third
Target Distribution over the Second Target Distribution for such Quarter; and
(G) Thereafter, (x) to the General Partner in accordance with its Percentage Interest with
respect to its General Partner Units, (y) 48% to the holders of the Incentive Distribution Rights,
Pro Rata, and (z) to all Unitholders, Pro Rata, a percentage equal to 100% less the sum of the
percentages applicable to subclauses (x) and (y) of this clause (G);
provided, however, if the Minimum Quarterly Distribution, the First Target Distribution, the Second
Target Distribution and the Third Target Distribution have been reduced to zero pursuant to the
second sentence of Section
6.6(a), the distribution of Available Cash that is deemed to be Operating Surplus with respect to
any Quarter will be made solely in accordance with Section 6.4(b)(i)(G).
(ii) Subject to Section 17-607 of the Delaware Act and except as otherwise required in respect
of additional Partnership Securities issued pursuant to Section 5.6, Available Cash with respect to
any Quarter after the Subordination Period that is deemed to be Operating Surplus pursuant to the
provisions of Section 6.3 or Section 6.5 shall be distributed as follows:
43
(A) First, 100% to the General Partner and the Unitholders, Pro Rata, until there has been
distributed in respect of each Unit then Outstanding an amount equal to the Minimum Quarterly
Distribution for such Quarter;
(B) Second, 100% to the General Partner and the Unitholders, Pro Rata, until there has been
distributed in respect of each Unit then Outstanding an amount equal to the excess of the First
Target Distribution over the Minimum Quarterly Distribution for such Quarter;
(C) Third, (x) to the General Partner in accordance with its Percentage Interest with respect
to its General Partner Units, (y) 13% to the holders of the Incentive Distribution Rights, Pro
Rata, and (z) to all Unitholders, Pro Rata, a percentage equal to 100% less the sum of the
percentages applicable to subclauses (x) and (y) of this clause (C), until there has been
distributed in respect of each Unit then Outstanding an amount equal to the excess of the Second
Target Distribution over the First Target Distribution for such Quarter;
(D) Fourth, (x) to the General Partner in accordance with its Percentage Interest with respect
to its General Partner Units, (y) 23% to the holders of the Incentive Distribution Rights, Pro
Rata, and (z) to all Unitholders, Pro Rata, a percentage equal to 100% less the sum of the
percentages applicable to subclauses (x) and (y) of this clause (D), until there has been
distributed in respect of each Unit then Outstanding an amount equal to the excess of the Third
Target Distribution over the Second Target Distribution for such Quarter; and
(E) Thereafter, (x) to the General Partner in accordance with its Percentage Interest with
respect to its General Partner Units, (y) 48% to the holders of the Incentive Distribution Rights,
Pro Rata, and (z) to all Unitholders, Pro Rata, a percentage equal to 100% less the sum of the
percentages applicable to subclauses (x) and (y) of this clause (E);
provided, however, if the Minimum Quarterly Distribution, the First Target Distribution, the Second
Target Distribution and the Third Target Distribution have been reduced to zero pursuant to the
second sentence of Section 6.6(a), the distribution of Available Cash that is deemed to be
Operating Surplus with respect to any Quarter will be made solely in accordance with Section
6.4(b)(ii)(E).
Section 6.5
Distributions of Available Cash from Capital Surplus.
Subject to Section 17-607 of the Delaware Act, Available Cash with respect to any Quarter
ending on or after the IPO Closing Date that is deemed to be Capital Surplus pursuant to the
provisions of Section 6.3(a) shall be distributed as follows, unless the provisions of Section 6.3
require otherwise:
(a) First, 100% to the General Partner and the Unitholders, Pro Rata, until a hypothetical
holder of a Common Unit acquired on the IPO Closing Date has received with respect to such Common
Unit, during the period since the IPO Closing Date through such date, distributions of Available
Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price;
(b) Second, 100% (a) to the General Partner in accordance with its Percentage Interest and (b)
to the Unitholders holding Common Units, Pro Rata, until there has been distributed in respect of
each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage; and
(c) Thereafter, 100% shall be distributed in accordance with Section 6.4 as if it were
Operating Surplus.
Section 6.6
Adjustment of Minimum Quarterly Distribution and
Target Distribution Levels.
(a) The Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution,
Third Target Distribution, Common Unit Arrearages and Cumulative Common Unit Arrearages shall be
proportionately adjusted in the event of any distribution, combination or subdivision (whether
effected by a distribution payable in Units or otherwise) of Units or other Partnership Securities
in accordance with Section 5.9. In the event of a
44
distribution of Available Cash that is deemed to
be from Capital Surplus, the then applicable Minimum Quarterly Distribution, First Target
Distribution, Second Target Distribution and Third Target Distribution, shall be adjusted
proportionately downward to equal the product obtained by multiplying the otherwise applicable
Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution and Third
Target Distribution, as the case may be, by a fraction of which the numerator is the Unrecovered
Initial Unit Price of the Common Units immediately after giving effect to such distribution and of
which the denominator is the Unrecovered Initial Unit Price of the Common Units immediately prior
to giving effect to such distribution.
(b) The Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution
and Third Target Distribution, shall also be subject to adjustment pursuant to Section 5.11 and
Section 6.9.
Section 6.7
Special Provisions Relating to the Holders of
Subordinated Units.
(a) Except with respect to the right to vote on or approve matters requiring the vote or
approval of a percentage of the holders of Outstanding Common Units and the right to participate in
allocations of income, gain, loss and deduction and distributions made with respect to Common
Units, the holder of a Subordinated Unit shall have all of the rights and obligations of a
Unitholder holding Common Units hereunder; provided, however, that immediately upon the conversion
of Subordinated Units into Common Units pursuant to Section 5.7, the Unitholder holding a
Subordinated Unit shall possess all of the rights and obligations of a Unitholder holding Common
Units hereunder, including the right to vote as a Common Unitholder and the right to participate in
allocations of income, gain, loss and deduction and distributions made with respect to Common
Units; provided, however, that such converted Subordinated Units shall remain subject to the
provisions of Sections 5.5(c)(ii), 6.1(d)(x)(A), 6.7(b) and 6.7(c).
(b) A Unitholder shall not be permitted to transfer a Subordinated Unit or a Subordinated Unit
that has converted into a Common Unit pursuant to Section 5.7 (other than a transfer to an
Affiliate) if the remaining balance in the transferring Unitholder’s Capital Account with respect
to the retained Subordinated Units or Retained Converted Subordinated Units would be negative after
giving effect to the allocation under Section 5.5(c)(ii)(B).
(c) A Unitholder holding a Common Unit that has resulted from the conversion of a Subordinated
Unit pursuant to Section 5.7 shall not be permitted to transfer such Common Unit to a Person that
is not an Affiliate of the holder, until such time as the General Partner determines, based on
advice of counsel, that each such Common Unit should have, as a substantive matter, like intrinsic
economic and federal income tax characteristics, in all material respects, to the intrinsic
economic and federal income tax characteristics of an Initial Common Unit. In connection with the
condition imposed by this Section 6.7(c), the General Partner may take whatever steps are required
to provide economic uniformity to such Common Units in preparation for a transfer of such Common
Units, including the application of Sections 5.5(c)(ii), 6.1(d)(x) and 6.7(b); provided, however,
that no such steps may be taken that would have a material adverse effect on the other Unitholders
holding Common Units.
Section 6.8
Special Provisions Relating to the Holders of
Incentive Distribution Rights.
Notwithstanding anything to the contrary set forth in this Agreement, the holders of the
Incentive Distribution Rights (a) shall (i) possess the rights and obligations provided in this
Agreement with respect to a Limited Partner pursuant to Article III and Article VII and (ii) have a
Capital Account as a Partner pursuant to Section 5.5 and all other provisions related thereto and
(b) shall not (i) be entitled to vote on any matters requiring the approval or vote of the holders
of Outstanding Units, except as provided by law, (ii) be entitled to any distributions other than
as provided in Sections 6.4(b)(i)(E), (F) and (G), Section 6.4(b)(ii)(C), (D) and (E) and Section
12.4 or (iii) be allocated items of income, gain, loss or deduction other than as specified in this
Article VI.
Section 6.9
Entity-Level Taxation.
If legislation is enacted or the interpretation of existing language is modified by a
governmental authority so that a Group Member is treated as an association taxable as a corporation
or is otherwise subject to an entity-level tax for federal, state or local income tax purposes,
then the General Partner may reduce the Minimum Quarterly Distribution, the First Target
Distribution, the Second Target Distribution and the Third Target Distribution by the
45
amount of
income taxes that are payable by reason of any such new legislation or interpretation (the
“Incremental Income Taxes”), or any portion thereof selected by the General Partner, in the manner
provided in this Section 6.9. If the General Partner elects to reduce the Minimum Quarterly
Distribution, the First Target Distribution, the Second Target Distribution and the Third Target
Distribution for any Quarter with respect to all or a portion of any Incremental Income Taxes, the
General Partner shall estimate for such Quarter the Partnership Group’s aggregate liability (the
“Estimated Incremental Quarterly Tax Amount”) for all (or the relevant portion of) such Incremental
Income Taxes; provided that any difference between such estimate and the actual tax liability for
Incremental Income Taxes (or the relevant portion thereof) for such Quarter may, to the extent
determined by the General Partner be taken into account in determining the Estimated Incremental
Quarterly Tax Amount with respect to each Quarter in which any such difference can be determined.
For each such Quarter, the Minimum Quarterly Distribution, First Target Distribution, Second Target
Distribution and Third Target Distribution, shall be the product obtained by multiplying (a) the
amounts therefor that are set out herein prior to the application of this Section 6.9 times (b) the
quotient obtained by dividing (i) Available Cash with respect to such Quarter by (ii) the sum of
Available Cash with respect to such Quarter and the Estimated Incremental Quarterly Tax Amount for
such Quarter, as determined by the General Partner. For purposes of the foregoing, Available Cash
with respect to a Quarter will be deemed reduced by the Estimated Incremental Quarterly Tax Amount
for that Quarter.
ARTICLE VII
MANAGEMENT AND OPERATION OF BUSINESS
Section 7.1
Management.
(a) The General Partner shall conduct, direct and manage all activities of the Partnership.
Except as otherwise expressly provided in this Agreement, all management powers over the business
and affairs of the Partnership shall be exclusively vested in the General Partner, and no Limited
Partner shall have any management power over the business and affairs of the Partnership. In
addition to the powers now or hereafter granted a general partner of a limited partnership under
applicable law or that are granted to the General Partner under any other provision of this
Agreement, the General Partner, subject to Section 7.3, shall have full power and authority to do
all things and on such terms as it determines to be necessary or appropriate to conduct the
business of the Partnership, to exercise all powers set forth in Section 2.5 and to effectuate the
purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or
guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of
evidences of indebtedness, including indebtedness that is convertible into Partnership Securities,
and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other
reports to governmental or other agencies having jurisdiction over the business or assets of the
Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange
of any or all of the assets of the Partnership or the merger or other combination of the
Partnership with or into another Person (the matters described in this clause (iii) being subject,
however, to any prior approval that may be required by Section 7.3 and Article XIV);
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose
consistent with the terms of this Agreement, including the financing of the conduct of the
operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other
Persons (including other Group Members); the repayment or guarantee of obligations of any Group
Member; and the making of capital contributions to any Group Member;
(v) the negotiation, execution and performance of any contracts, conveyances or other
instruments (including instruments that limit the liability of the Partnership under contractual
arrangements to all or particular assets of the Partnership, with the other party to the contract
to have no recourse against the General Partner or its assets other than its interest in the
Partnership, even if same results in the terms of the transaction being less favorable to the
Partnership than would otherwise be the case);
46
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as
“president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys,
accountants, consultants and contractors and the determination of their compensation and other
terms of employment or hiring;
(viii) the maintenance of insurance for the benefit of the Partnership Group, the Partners and
Indemnitees;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and
the making of loans to, any further limited or general partnerships, joint ventures, corporations,
limited liability companies or other Persons (including the acquisition of interests in, and the
contributions of property to, any Group Member from time to time) subject to the restrictions set
forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership,
including the bringing and defending of actions at law or in equity and otherwise engaging in the
conduct of litigation, arbitration or mediation and the incurring of legal expense and the
settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent
permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the
delisting of some or all of the Limited Partner Interests from, or requesting that trading be
suspended on, any such exchange (subject to any prior approval that may be required under Section
4.8);
(xiii) the purchase, sale or other acquisition or disposition of Partnership Securities, or
the issuance of options, rights, warrants, appreciation rights and tracking and phantom interests
relating to Partnership Securities;
(xiv) the undertaking of any action in connection with the Partnership’s participation in any
Group Member; and
(xv) the entering into of agreements with any of its Affiliates to render services to a Group
Member or to itself in the discharge of its duties as General Partner of the Partnership.
(b) Notwithstanding any other provision of this Agreement, any Group Member Agreement, the
Delaware Act or any applicable law, rule or regulation, each of the Partners and each other Person
who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms
the execution, delivery and performance by the parties thereto of this Agreement and the Group
Member Agreement of each other Group Member, the Underwriting Agreement and the other agreements
described in or filed as exhibits to the Registration Statement, (ii) agrees that the General
Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver
and perform the agreements referred to in clause (i) of this sentence and the other agreements,
acts, transactions and matters described in or contemplated by the Underwriting Agreement or
described in or filed as exhibits to the Registration Statement, in each case on behalf of the
Partnership without any further act, approval or vote of the Partners or the other Persons who may
acquire an interest in Partnership Securities and (iii) agrees that the execution, delivery or
performance by the General Partner, any Group Member or any Affiliate of any of them of this
Agreement or any agreement authorized or permitted under this Agreement (including the exercise by
the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to
Article XV) shall not constitute a breach by the General Partner of any duty that the General
Partner may owe the Partnership or the
Limited Partners or any other Persons under this Agreement (or any other agreements) or of any
duty stated or implied by law or equity.
Section 7.2
Certificate of Limited Partnership.
47
The General Partner has caused the Certificate of Limited Partnership to be filed with the
Secretary of State of the State of Delaware as required by the Delaware Act. The General Partner
shall use all reasonable efforts to cause to be filed such other certificates or documents that the
General Partner determines to be necessary or appropriate for the formation, continuation,
qualification and operation of a limited partnership (or a partnership in which the limited
partners have limited liability) in the State of Delaware or any other state in which the
Partnership may elect to do business or own property. To the extent the General Partner determines
such action to be necessary or appropriate, the General Partner shall file amendments to and
restatements of the Certificate of Limited Partnership and do all things to maintain the
Partnership as a limited partnership (or a partnership or other entity in which the limited
partners have limited liability) under the laws of the State of Delaware or of any other state in
which the Partnership may elect to do business or own property. Subject to Section 3.4(a), to the
fullest extent permitted by law, the General Partner shall not be required, before or after filing,
to deliver or mail a copy of the Certificate of Limited Partnership, any qualification document or
any amendment thereto to any Limited Partner.
Section 7.3
Restrictions on the General Partner’s Authority.
Except as provided in Article XII and Article XIV, the General Partner may not sell, exchange
or otherwise dispose of all or substantially all of the assets of the Partnership Group, taken as a
whole, in a single transaction or a series of related transactions (including by way of merger,
consolidation, other combination or sale of ownership interests of the Partnership’s Subsidiaries)
without the approval of holders of a Unit Majority; provided, however, that this provision shall
not preclude or limit the General Partner’s ability to mortgage, pledge, hypothecate or grant a
security interest in all or substantially all of the assets of the Partnership Group and shall not
apply to any forced sale of any or all of the assets of the Partnership Group pursuant to the
foreclosure of, or other realization upon, any such encumbrance. Without the approval of holders of
a Unit Majority, the General Partner shall not, on behalf of the Partnership, except as permitted
under Section 4.6, Section 11.1 and Section 11.2, elect or cause the Partnership to elect a
successor general partner of the Partnership.
Section 7.4
Reimbursement of the General Partner.
(a) Except as provided in this Section 7.4, elsewhere in this Agreement, and in the Services
Agreement, the General Partner shall not be compensated for its services as a general partner or
managing member of any Group Member.
(b) The General Partner shall be reimbursed on a monthly basis, or such other basis as the
General Partner may determine, for (i) all direct and indirect expenses it incurs or payments it
makes on behalf of the Partnership Group (including salary, bonus, incentive compensation and other
amounts paid to any Person, including Affiliates of the General Partner to perform services for the
Partnership Group or for the General Partner in the discharge of its duties to the Partnership
Group), and (ii) all other expenses allocable to the Partnership Group or otherwise incurred by the
General Partner in connection with operating the Partnership Group’s business (including expenses
allocated to the General Partner by its Affiliates). The General Partner shall determine the
expenses that are allocable to the Partnership Group. Reimbursements pursuant to this Section 7.4
shall be in addition to any reimbursement to the General Partner as a result of indemnification
pursuant to Section 7.7.
(c) Subject to the applicable rules and regulations of the National Securities Exchange on
which the Common Units are listed, the General Partner, without the approval of the Limited
Partners (who shall have no other right to vote in respect thereof under this Agreement), may
propose and adopt on behalf of the Partnership employee benefit plans, employee programs and
employee practices (including plans, programs and practices involving the issuance of Partnership
Securities or options to purchase or rights, warrants or appreciation rights or phantom or tracking
interests relating to Partnership Securities), or cause the Partnership to issue Partnership
Securities in connection with, or pursuant to, any employee benefit plan, employee program or
employee practice maintained or sponsored by the General Partner, Group Member or any Affiliates in
each case for the benefit of employees and
directors of the General Partner or any of its Affiliates, in respect of services performed,
directly or indirectly, for the benefit of the Partnership Group. The Partnership agrees to issue
and sell to the General Partner or any of its Affiliates any Partnership Securities that the
General Partner or such Affiliates are obligated to provide to any employees and directors pursuant
to any such employee benefit plans, employee programs or employee practices. Expenses incurred by
the General Partner in connection with any such plans, programs and practices (including the net
cost to the General Partner or such Affiliates of Partnership Securities purchased by the General
Partner or such
48
Affiliates from the Partnership to fulfill options or awards under such plans,
programs and practices) shall be reimbursed in accordance with Section 7.4(b). Any and all
obligations of the General Partner under any employee benefit plans, employee programs or employee
practices adopted by the General Partner as permitted by this Section 7.4(c) shall constitute
obligations of the General Partner hereunder and shall be assumed by any successor General Partner
approved pursuant to Section 11.1 or Section 11.2 or the transferee of or successor to all of the
General Partner’s General Partner Interest (represented by General Partner Units) pursuant to
Section 4.6.
Section 7.5
Outside Activities
.
(a) The General Partner, for so long as it is the General Partner of the Partnership, (i)
agrees that its sole business will be to act as a general partner or managing member, as the case
may be, of the Partnership and any other partnership or limited liability company of which the
Partnership is, directly or indirectly, a partner or member and to undertake activities that are
ancillary or related thereto (including being a limited partner in the Partnership) and (ii) shall
not engage in any business or activity or incur any debts or liabilities except in connection with
or incidental to (A) its performance as general partner or managing member, if any, of one or more
Group Members or (B) the acquiring, owning or disposing of debt or equity securities in any Group
Member.
(b) Subject to the terms and conditions of any other agreement to or by which an Indemnitee
may be a party or bound, each Indemnitee (other than the General Partner) shall have the right to
engage in businesses of every type and description and other activities for profit and to engage in
and possess an interest in other business ventures of any and every type or description, whether in
businesses engaged in or anticipated to be engaged in by any Group Member, independently or with
others, including business interests and activities in direct competition with the business and
activities of any Group Member, and none of the same shall constitute a breach of this Agreement or
any duty expressed or implied by law or equity to any Group Member or any Partner. None of any
Group Member, any Limited Partner or any other Person shall have any rights by virtue of this
Agreement, any Group Member Agreement, or the partnership relationship established hereby in any
business ventures of any Indemnitee. Notwithstanding anything to the contrary in this Agreement or
any duty existing at law, in equity or otherwise, but subject to the proviso set forth in the last
sentence of this Section 7.5(b) and subject to the terms and conditions of any other agreement to
or by which an Indemnitee may be a party or bound, (i) the engaging in competitive activities by
any Indemnitees (other than the General Partner) in accordance with the provisions of this Section
7.5 is hereby approved by the Partnership and all Partners, (ii) it shall be deemed not to be a
breach of any fiduciary duty or any other obligation of any type whatsoever of any Indemnitee for
the Indemnitees (other than the General Partner) to engage in such business interests and
activities in preference to or to the exclusion of the Partnership and (iii) the Indemnitees shall
have no obligation hereunder or as a result of any duty expressed or implied by law to present
business opportunities to the Partnership. Notwithstanding anything to the contrary in this
Agreement, the doctrine of corporate opportunity, or any analogous doctrine, shall not apply to any
Indemnitee (including the General Partner). Subject to the terms and conditions of any other
agreement to or by which an Indemnitee may be a party or bound, no Indemnitee (including the
General Partner) who acquires knowledge of a potential transaction, agreement, arrangement or other
matter that may be an opportunity for the Partnership shall have any duty to communicate or offer
such opportunity to the Partnership, and such Indemnitee (including the General Partner) shall not
be liable to the Partnership, to any Limited Partner or any other Person bound by this Agreement
for breach of any fiduciary or other duty by reason of the fact that such Indemnitee (including the
General Partner) pursues or acquires for itself, directs such opportunity to another Person or does
not communicate such opportunity or information to the Partnership; provided such Indemnitee does
not engage in such business or activity as a result of or using confidential or proprietary
information provided by or on behalf of the Partnership to such Indemnitee.
(c) The General Partner and each of its Affiliates may own and acquire Units or other
Partnership Securities and, except as otherwise provided in this Agreement, shall be entitled to
exercise, at their option, all rights
relating to all Units or other Partnership Securities acquired by them. The term “Affiliates”
when used in this Section 7.5(c) with respect to the General Partner shall not include any Group
Member.
(d) Notwithstanding anything to the contrary in this Agreement, (i) to the extent that any
provision of this Agreement purports or is interpreted to have the effect of restricting or
eliminating the fiduciary duties that might otherwise, as a result of Delaware or other applicable
law, be owed by the General Partner to the Partnership and its Limited Partners, or to constitute a
waiver or consent by the Limited Partners to any such restriction or
49
elimination, such provisions
and the restriction or elimination of fiduciary duties are hereby approved by the Partners, and
(ii) nothing in this Agreement shall limit or otherwise affect any separate contractual obligations
outside of this Agreement of any Person to the Partnership or any of its Affiliates.
Section 7.6
Loans from the General Partner; Loans or Contributions
from the Partnership or Group Members.
(a) The General Partner or any of its Affiliates may lend to any Group Member, and any Group
Member may borrow from the General Partner or any of its Affiliates, funds needed or desired by the
Group Member for such periods of time and in such amounts as the General Partner may determine;
provided, however, that in any such case the lending party may not charge the borrowing party
interest at a rate greater than the rate that would be charged the borrowing party or impose terms
less favorable to the borrowing party than would be charged or imposed on the borrowing party by
unrelated lenders on comparable loans made on an arm’s-length basis (without reference to the
lending party’s financial abilities or guarantees), all as determined by the General Partner. The
borrowing party shall reimburse the lending party for any costs (other than any additional interest
costs) incurred by the lending party in connection with the borrowing of such funds. For purposes
of this Section 7.6(a) and Section 7.6(b), the term “Group Member” shall include any Affiliate of a
Group Member that is controlled by the Group Member.
(b) The Partnership may lend or contribute to any Group Member, and any Group Member may
borrow from the Partnership, funds on terms and conditions determined by the General Partner.
(c) No borrowing by any Group Member or the approval thereof by the General Partner shall be
deemed to constitute a breach of any duty, expressed or implied, of the General Partner or its
Affiliates to the Partnership or the Limited Partners existing hereunder, or existing at law, in
equity or otherwise by reason of the fact that the purpose or effect of such borrowing is directly
or indirectly to (i) enable distributions to the General Partner or its Affiliates (including in
their capacities as Limited Partners) to exceed the General Partner’s Percentage Interest of the
total amount distributed to all partners or (ii) hasten the expiration of the Subordination Period
or the conversion of any Subordinated Units into Common Units.
Section 7.7
Indemnification
.
(a) To the fullest extent permitted by law but subject to the limitations expressly provided
in this Agreement, all Indemnitees shall be indemnified and held harmless by the Partnership from
and against any and all losses, claims, damages, liabilities, joint or several, expenses (including
legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts
arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which any Indemnitee may be involved, or is threatened to be
involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the
Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable
judgment entered by a court of competent jurisdiction determining that, in respect of the matter
for which the Indemnitee is seeking indemnification pursuant to this Section 7.7, the Indemnitee
acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter,
acted with knowledge that the Indemnitee’s conduct was unlawful; provided, further, no
indemnification pursuant to this Section 7.7 shall be available to the General Partner or its
Affiliates (other than a Group Member) with respect to its or their obligations incurred pursuant
to the Underwriting Agreement, or the Investors’ Rights Agreement (other than obligations incurred
by the General Partner on behalf of the Partnership). Any indemnification pursuant to this Section
7.7 shall be made only out of the assets of the Partnership, it being agreed that the General
Partner shall not be personally liable for such indemnification and shall
have no obligation to contribute or loan any monies or property to the Partnership to enable
it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses)
incurred by an Indemnitee who is indemnified pursuant to Section 7.7(a) in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the Partnership prior
to a determination that the Indemnitee is not entitled to be indemnified upon receipt by the
Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall
be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section
7.7.
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(c) The indemnification provided by this Section 7.7 shall be in addition to any other rights
to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the holders of
Outstanding Limited Partner Interests, as a matter of law or otherwise, both as to actions in the
Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity (including any
capacity under the Underwriting Agreement), and shall continue as to an Indemnitee who has ceased
to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and
administrators of the Indemnitee.
(d) The Partnership may purchase and maintain (or reimburse the General Partner or its
Affiliates for the cost of) insurance, on behalf of the General Partner, its Affiliates and such
other Persons as the General Partner shall determine, against any liability that may be asserted
against, or expense that may be incurred by, such Person in connection with the Partnership’s
activities or such Person’s activities on behalf of the Partnership, regardless of whether the
Partnership would have the power to indemnify such Person against such liability under the
provisions of this Agreement.
(e) For purposes of this Section 7.7, the Partnership shall be deemed to have requested an
Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its
duties to the Partnership also imposes duties on, or otherwise involves services by, it to the plan
or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect
to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning
of Section 7.7(a); and action taken or omitted by it with respect to any employee benefit plan in
the performance of its duties for a purpose reasonably believed by it to be in the best interest of
the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the
best interests of the Partnership.
(f) In no event may an Indemnitee subject the Limited Partners to personal liability by reason
of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section
7.7 because the Indemnitee had an interest in the transaction with respect to which the
indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 7.7 are for the benefit of the Indemnitees, their heirs,
successors, assigns and administrators and shall not be deemed to create any rights for the benefit
of any other Persons.
(i) No amendment, modification or repeal of this Section 7.7 or any provision hereof shall in
any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be
indemnified by the Partnership, nor the obligations of the Partnership to indemnify any such
Indemnitee under and in accordance with the provisions of this Section 7.7 as in effect immediately
prior to such amendment, modification or repeal with respect to claims arising from or relating to
matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless
of when such claims may arise or be asserted.
Section 7.8
Liability of Indemnitees.
(a) Notwithstanding anything to the contrary set forth in this Agreement, no Indemnitee shall
be liable for monetary damages to the Partnership, the Limited Partners or any other Persons who
have acquired Partnership Securities or are otherwise bound by this Agreement, for losses sustained
or liabilities incurred as a result of any act
or omission of an Indemnitee unless there has been a final and non-appealable judgment entered
by a court of competent jurisdiction determining that, in respect of the matter in question, the
Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal
matter, acted with knowledge that the Indemnitee’s conduct was criminal.
(b) Subject to its obligations and duties as General Partner set forth in Section 7.1(a), the
General Partner may exercise any of the powers granted to it by this Agreement and perform any of
the duties imposed upon it hereunder either directly or by or through its agents, and the General
Partner shall not be responsible for any misconduct or negligence on the part of any such agent
appointed by the General Partner in good faith.
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(c) To the extent that, at law or in equity, an Indemnitee has duties (including
fiduciary duties) and liabilities relating thereto to the Partnership or to the Partners, the
General Partner and any other Indemnitee acting in connection with the Partnership’s business or
affairs shall not be liable to the Partnership or to any Partner for its good faith reliance on the
provisions of this Agreement.
(d) Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be
prospective only and shall not in any way affect the limitations on the liability of the
Indemnitees under this Section 7.8 as in effect immediately prior to such amendment, modification
or repeal with respect to claims arising from or relating to matters occurring, in whole or in
part, prior to such amendment, modification or repeal, regardless of when such claims may arise or
be asserted.
Section 7.9
Resolution of Conflicts of Interest; Standards of
Conduct and Modification of Duties.
(a) Unless otherwise expressly provided in this Agreement or any Group Member Agreement,
whenever a potential conflict of interest exists or arises between the General Partner or any of
its Affiliates, on the one hand, and the Partnership, any Group Member or any Partner, on the
other, any resolution or course of action by the General Partner or its Affiliates in respect of
such conflict of interest shall be permitted and deemed approved by all Partners, and shall not
constitute a breach of this Agreement, of any Group Member Agreement, of any agreement contemplated
herein or therein, or of any duty stated or implied by law or equity, if the resolution or course
of action in respect of such conflict of interest is (i) approved by Special Approval, (ii)
approved by the vote of a majority of the Outstanding Common Units (excluding Common Units owned by
the General Partner and its Affiliates), (iii) on terms no less favorable to the Partnership than
those generally being provided to or available from unrelated third parties or (iv) fair and
reasonable to the Partnership, taking into account the totality of the relationships between the
parties involved (including other transactions that may be particularly favorable or advantageous
to the Partnership). The General Partner shall be authorized but not required in connection with
its resolution of such conflict of interest to seek Special Approval of such resolution, and the
General Partner may also adopt a resolution or course of action that has not received Special
Approval. If Special Approval is sought, then, notwithstanding any other provision of this
Agreement or applicable law, (A) any Conflicts Committee shall be authorized in connection with its
determination of whether to provide Special Approval to consider any and all factors as it
determines to be relevant or appropriate under the circumstances, and (B) it shall be presumed
that, in making its decision, a Conflicts Committee acted in good faith, and if Special Approval is
not sought and the Board of Directors of the General Partner determines that the resolution or
course of action taken with respect to a conflict of interest satisfies either of the standards set
forth in clauses (iii) or (iv) above, then it shall be presumed that, in making its decision, the
Board of Directors of the General Partner acted in good faith, and in either case, in any
proceeding brought by any Limited Partner or by or on behalf of such Limited Partner or any other
Limited Partner or the Partnership challenging such approval, the Person bringing or prosecuting
such proceeding shall have the burden of overcoming such presumption. Notwithstanding anything to
the contrary in this Agreement or any duty otherwise existing at law or equity, the existence of
the conflicts of interest described in the Registration Statement are hereby approved by all
Partners and shall not constitute a breach of this Agreement.
(b) Whenever the General Partner makes a determination or takes or declines to take any other
action, or any of its Affiliates causes it to do so, in its capacity as the general partner of the
Partnership as opposed to in its individual capacity, whether under this Agreement, any Group
Member Agreement or any other agreement contemplated hereby or otherwise, then, unless another
express standard is provided for in this Agreement, the General Partner, or such Affiliates causing
it to do so, shall make such determination or take or decline to take such other action in good
faith and shall not be subject to any other or different standards imposed by this Agreement, any
Group Member Agreement, any other agreement contemplated hereby or under the Delaware Act or any
other law, rule or regulation or at equity. Whenever any Conflicts Committee makes a determination
or takes or declines to take any other action, unless another express standard is provided for in
this Agreement, it shall make such determination or take or decline to take such other action in
good faith and shall not be subject to any other or different standards imposed by this Agreement,
any Group Member Agreement, any other agreement contemplated hereby or under the Delaware Act or
any other law, rule or regulation or at equity. In order for a determination or other action to be
in “good faith” for purposes of this Agreement, the Person or Persons making such determination or
taking or declining to take such other action must believe that the determination or other action
is in the best interests of the Partnership.
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(c) Whenever the General Partner makes a determination or takes or declines to take any other
action, or any of its Affiliates causes it to do so, in its individual capacity as opposed to in
its capacity as the general partner of the Partnership, whether under this Agreement, any Group
Member Agreement or any other agreement contemplated hereby or otherwise, then the General Partner,
or such Affiliates causing it to do so, are entitled to make such determination or to take or
decline to take such other action free of any fiduciary duty or obligation whatsoever to the
Partnership, any Limited Partner, any Record Holder or any other Person bound by this Agreement,
and, to the fullest extent permitted by law, the General Partner, or such Affiliates causing it to
do so, shall not be required to act in good faith or pursuant to any other standard imposed by this
Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the
Delaware Act or any other law, rule or regulation or in equity. For the avoidance of doubt,
whenever the General Partner votes or transfers its Partnership Interests, or refrains from voting
or transferring its Partnership Interests, it shall be acting in its individual capacity.
(d) Notwithstanding anything to the contrary in this Agreement, the General Partner and its
Affiliates shall have no duty or obligation, express or implied, to (i) sell or otherwise dispose
of any asset of the Partnership Group other than in the ordinary course of business or (ii) permit
any Group Member to use any facilities or assets of the General Partner and its Affiliates, except
as may be provided in contracts entered into from time to time specifically dealing with such use.
Any determination by the General Partner or any of its Affiliates to enter into such contracts
shall be at its option.
(e) Except as expressly set forth in this Agreement, neither the General Partner nor any other
Indemnitee shall have any duties or liabilities, including fiduciary duties, to the Partnership or
any Limited Partner and the provisions of this Agreement, to the extent that they restrict,
eliminate or otherwise modify the duties and liabilities, including fiduciary duties, of the
General Partner or any other Indemnitee otherwise existing at law or in equity, are agreed by the
Partners to replace such other duties and liabilities of the General Partner or such other
Indemnitee.
(f) The Unitholders hereby authorize the General Partner, on behalf of the Partnership as a
partner or member of a Group Member, to approve of actions by the general partner or managing
member of such Group Member similar to those actions permitted to be taken by the General Partner
pursuant to this Section 7.9.
Section 7.10
Other Matters Concerning the General Partner.
(a) The General Partner may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
(b) The General Partner may consult with legal counsel, accountants, appraisers, management
consultants, investment bankers and other consultants and advisers selected by it, and any act
taken or omitted to be taken in reliance upon the opinion (including an Opinion of Counsel) of such
Persons as to matters that the General Partner reasonably believes to be within such Person’s
professional or expert competence shall be conclusively presumed to have been done or omitted in
good faith and in accordance with such opinion.
(c) The General Partner shall have the right, in respect of any of its powers or obligations
hereunder, to act through any of its duly authorized officers, a duly appointed attorney or
attorneys-in-fact or the duly authorized officers of the Partnership or any Group Member.
Section 7.11
Purchase or Sale of Partnership Securities.
The General Partner may cause the Partnership to purchase or otherwise acquire Partnership
Securities; provided that, except as permitted pursuant to Section 4.10, the General Partner may
not cause any Group Member to purchase Subordinated Units during the Subordination Period. Such
Partnership Securities shall be held by the Partnership as treasury securities unless they are
expressly cancelled by action of an appropriate officer of the General Partner. As long as
Partnership Securities are held by any Group Member, such Partnership Securities shall not be
considered Outstanding for any purpose, except as otherwise provided herein. The General Partner or
any
53
Affiliate of the General Partner may also purchase or otherwise acquire and sell or otherwise
dispose of Partnership Securities for its own account, subject to the provisions of Articles IV and
X.
Section 7.12
Registration Rights of the General Partner and its
Affiliates.
(a) If (i) the General Partner or any Affiliate of the General Partner (including, for
purposes of this Section 7.12, any Person that is an Affiliate of the General Partner at the IPO
Closing Date notwithstanding that it may later cease to be an Affiliate of the General Partner, but
excluding any individual who is an Affiliate of the General Partner based on such individual’s
status as an officer, director or employee of the General Partner or an Affiliate of the General
Partner) holds Partnership Securities that it desires to sell and (ii) Rule 144 of the Securities
Act (or any successor rule or regulation to Rule 144) or another exemption from registration is not
available to enable such holder of Partnership Securities (the “Holder”) to dispose of the number
of Partnership Securities it desires to sell at the time it desires to do so without registration
under the Securities Act, then at the option and upon the request of the Holder, the Partnership
shall file with the Commission as promptly as practicable after receiving such request, and use
commercially reasonable efforts to cause to become effective and remain effective for a period of
not less than six months following its effective date or such shorter period as shall terminate
when all Partnership Securities covered by such registration statement have been sold, a
registration statement under the Securities Act registering the offering and sale of the number of
Partnership Securities specified by the Holder; provided, however, that the Partnership shall not
be required to effect more than four registrations in total pursuant to this Section 7.12(a) and
Section 7.12(b), no more than two of which shall be required to be made at any time that the
Partnership is not eligible to use Form S-3 (or a comparable form) for the registration under the
Securities Act of its securities; and provided further, however, that if a Conflicts Committee
determines in good faith that the requested registration would be materially detrimental to the
Partnership and its Partners because such registration would (x) materially interfere with a
significant acquisition, reorganization or other similar transaction involving the Partnership, (y)
require premature disclosure of material information that the Partnership has a bona fide business
purpose for preserving as confidential or (z) render the Partnership unable to comply with
requirements under applicable securities laws, then the Partnership shall have the right to
postpone such requested registration for a period of not more than six months after receipt of the
Holder’s request, such right pursuant to this Section 7.12(a) or Section 7.12(b) not to be utilized
more than once in any twelve-month period. In connection with any registration pursuant to the
first sentence of this Section 7.12(a), the Partnership shall (i) promptly prepare and file (A)
such documents as may be necessary to register or qualify the securities subject to such
registration under the securities laws of such states as the Holder shall reasonably request;
provided, however, that no such qualification shall be required in any jurisdiction where, as a
result thereof, the Partnership would become subject to general service of process or to taxation
or qualification to do business as a foreign corporation or partnership doing business in such
jurisdiction solely as a result of such registration, and (B) such documents as may be necessary to
apply for listing or to list the Partnership Securities subject to such registration on such
National Securities Exchange as the Holder shall reasonably request and (ii) do any and all other
acts and things that may be necessary or appropriate to enable the Holder to consummate a public
sale of such Partnership Securities in such states. Except as set forth in Section 7.12(d), all
costs and expenses of any such registration and offering (other than the underwriting discounts and
commissions) shall be paid by the Partnership, without reimbursement by the Holder.
(b) If any Holder holds Partnership Securities that it desires to sell and Rule 144 of the
Securities Act (or any successor rule or regulation to Rule 144) or another exemption from
registration is not available to enable such Holder to dispose of the number of Partnership
Securities it desires to sell at the time it desires to do so without registration under the
Securities Act, then at the option and upon the request of the Holder, the Partnership shall file
with the Commission as promptly as practicable after receiving such request, and use commercially
reasonable efforts to cause to become effective and remain effective for a period of not less than
six months following its effective date or such shorter period as shall terminate when all
Partnership Securities covered by such shelf registration statement have been sold, a “shelf”
registration statement covering the Partnership Securities specified by the Holder on an
appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted
by the Commission; provided, however, that the Partnership shall not be required to effect more
than four registrations pursuant to Section 7.12(a) and this Section 7.12(b); and provided further,
however, that if a Conflicts Committee determines in good faith that any offering under, or the use
of any prospectus forming a part of, the shelf registration statement would be materially
detrimental to the Partnership and its Partners because such offering or use would (x) materially
interfere with a significant acquisition, reorganization or other similar transaction involving the
Partnership, (y) require premature disclosure of material information that the Partnership has a
bona fide
54
business purpose for preserving as confidential or (z) render the Partnership unable to
comply with requirements under applicable securities laws, then the Partnership shall have the
right to suspend such offering or use for a period of not more than six months after receipt of the
Holder’s request, such right pursuant to Section 7.12(a) or this Section 7.12(b) not to be utilized
more than once in any twelve-month period. In connection with any shelf registration pursuant to
this Section 7.12(b), the Partnership shall (i) promptly prepare and file (A) such documents as may
be necessary to register or qualify the securities subject to such shelf registration under the
securities laws of such states as the Holder shall reasonably request; provided, however, that no
such qualification shall be required in any jurisdiction where, as a result thereof, the
Partnership would become subject to general service of process or to taxation or qualification to
do business as a foreign corporation or partnership doing business in such jurisdiction solely as a
result of such shelf registration, and (B) such documents as may be necessary to apply for listing
or to list the Partnership Securities subject to such shelf registration on such National
Securities Exchange as the Holder shall reasonably request, and (ii) do any and all other acts and
things that may be necessary or appropriate to enable the Holder to consummate a public sale of
such Partnership Securities in such states. Except as set forth in Section 7.12(d), all costs and
expenses of any such shelf registration and offering (other than the underwriting discounts and
commissions) shall be paid by the Partnership, without reimbursement by the Holder.
(c) If the Partnership shall at any time propose to file a registration statement under the
Securities Act for an offering of equity securities of the Partnership for cash (other than an
offering relating solely to an employee benefit plan), the Partnership shall notify each Holder
that is an Affiliate of the Partnership at that time of such proposal and use all reasonable
efforts to include such number or amount of securities held by such Holder in such registration
statement as it shall request; provided, that the Partnership is not required to make any effort or
take any action to so include the securities of such Holder once the registration statement is
declared effective by the Commission or otherwise becomes effective, including any registration
statement providing for the offering from time to time of securities pursuant to Rule 415 of the
Securities Act. If the proposed offering pursuant to this Section 7.12(c) shall be an underwritten
offering, then, in the event that the managing underwriter or managing underwriters of such
offering advise the Partnership and such Holder in writing that in their opinion the inclusion of
all or some of the Holder’s Partnership Securities would have a material adverse effect on the
success of the offering, the Partnership shall include in such offering only that number or amount,
if any, of securities held by such Holder that, in the opinion of the managing underwriter or
managing underwriters, will not have a material adverse effect on the success of the offering.
Except as set forth in Section 7.12(d), all costs and expenses of any such registration and
offering (other than the underwriting discounts and commissions) shall be paid by the Partnership,
without reimbursement by such Holder.
(d) If underwriters are engaged in connection with any registration referred to in this
Section 7.12, the Partnership shall provide indemnification, representations, covenants, opinions
and other assurance to the underwriters in form and substance reasonably satisfactory to such
underwriters. Further, in addition to and not in limitation of the Partnership’s obligation under
Section 7.7, the Partnership shall, to the fullest extent permitted by law, indemnify and hold
harmless the Holder, its officers, directors and each Person who controls the Holder (within the
meaning of the Securities Act) and any agent thereof (collectively, “Indemnified Persons”) from and
against any and all losses, claims, damages, liabilities, joint or several, expenses (including
legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts
arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which any Indemnified Person may be involved, or is threatened
to be involved, as a party or otherwise, under the Securities Act or otherwise (hereinafter
referred to in this Section 7.12(d) as a “claim” and in the plural as “claims”) based upon, arising
out of or resulting from any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which any Partnership Securities were registered
under the Securities Act or any state securities or Blue Sky laws, in any preliminary prospectus
(if used prior to the effective date of such registration statement), or in any summary or final
prospectus or any free writing prospectus or in any amendment or supplement thereto (if used during
the period the Partnership is required to keep the registration statement current), or arising out
of, based upon or resulting from the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements made therein not misleading;
provided, however, that the Partnership shall not be liable to any Indemnified Person to the extent
that any such claim arises out of, is based upon or results from an untrue statement or alleged
untrue statement or omission or alleged omission made in such registration statement, such
preliminary, summary or final prospectus or any free writing prospectus or such amendment or
supplement, in reliance upon and in conformity with written information furnished to the
Partnership by or on behalf of such Indemnified Person specifically for use in the preparation
thereof.
55
(e) The provisions of Section 7.12(a), Section 7.12(b) and Section 7.12(c) shall continue to
be applicable with respect to the General Partner (and any of the General Partner’s Affiliates)
after it ceases to be a general partner of the Partnership, during a period of two years subsequent
to the effective date of such cessation and for so long thereafter as is required for the Holder to
sell all of the Partnership Securities with respect to which it has requested during such two-year
period inclusion in a registration statement otherwise filed or that a registration statement be
filed; provided, however, that the Partnership shall not be required to file successive
registration statements covering the same Partnership Securities for which registration was
demanded during such two-year period. The provisions of Section 7.12(d) shall continue in effect
thereafter.
(f) The rights to cause the Partnership to register Partnership Securities pursuant to this
Section 7.12 may be assigned (but only with all related obligations) by a Holder to a transferee of
such Partnership Securities, provided (i) the Partnership is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such transferee and the
Partnership Securities with respect to which such registration rights are being assigned and (ii)
such transferee agrees in writing to be bound by and subject to the terms set forth in this Section
7.12.
(g) Any request to register Partnership Securities pursuant to this Section 7.12 shall (i)
specify the Partnership Securities intended to be offered and sold by the Person making the
request, (ii) express such Person’s present intent to offer such Partnership Securities for
distribution, (iii) describe the nature or method of the proposed offer and sale of Partnership
Securities, and (iv) contain the undertaking of such Person to provide all such information and
materials and take all action as may be required in order to permit the Partnership to comply with
all applicable requirements in connection with the registration of such Partnership Securities.
(h) C&T Coal, Charles C. Ungurean, and Thomas T. Ungurean (and their respective successors and
permitted assigns under Exhibit B to the Investors’ Rights Agreement) have only those registration
rights set forth in Exhibit B to the Investors’ Rights Agreement and are not entitled to rely on
the rights to cause the Partnership to register Partnership Securities pursuant to this Section
7.12.
Section 7.13
Reliance by Third Parties.
Notwithstanding anything to the contrary in this Agreement, any Person dealing with the
Partnership shall be entitled to assume that the General Partner and any officer of the General
Partner authorized by the General Partner to act on behalf of and in the name of the Partnership
has full power and authority to encumber, sell or otherwise use in any manner any and all assets of
the Partnership and to enter into any authorized contracts on behalf of the Partnership, and such
Person shall be entitled to deal with the General Partner or any such officer as if it were the
Partnership’s sole party in interest, both legally and beneficially. Each Limited Partner hereby
waives, to the fullest extent permitted by law, any and all defenses or other remedies that may be
available against such Person to contest, negate or disaffirm any action of the General Partner or
any such officer in connection with any such dealing. In no event shall any Person dealing with the
General Partner or any such officer or its representatives be obligated to ascertain that the terms
of this Agreement have been complied with or to inquire into the necessity or expedience of any act
or action of the General Partner or any such officer or its representatives. Each and every
certificate, document or other instrument executed on behalf of the Partnership by the General
Partner or its representatives shall be conclusive evidence in favor of any and every Person
relying thereon or claiming thereunder that (a) at the time of the execution and delivery of such
certificate, document or instrument, this Agreement was in full force and effect, (b) the Person
executing and delivering such certificate, document or instrument was duly authorized and empowered
to do so for and on behalf of the Partnership and (c) such certificate, document or instrument was
duly executed and delivered in accordance with the terms and provisions of this Agreement and is
binding upon the Partnership.
ARTICLE VIII
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 8.1
Records and Accounting.
The General Partner shall keep or cause to be kept at the principal office of the Partnership
appropriate books and records with respect to the Partnership’s business, including all books and
records necessary to provide to
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the Limited Partners any information required to be provided
pursuant to Section 3.4(a). Any books and records maintained by or on behalf of the Partnership in
the regular course of its business, including the record of the Record Holders of Units or other
Partnership Securities, books of account and records of Partnership proceedings, may be kept on, or
be in the form of, computer disks, hard drives, punch cards, magnetic tape, photographs,
micrographics or any other information storage device; provided, that the books and records so
maintained are convertible into clearly legible written form within a reasonable period of time.
The books of the Partnership shall be maintained, for financial reporting purposes, on an accrual
basis in accordance with U.S. GAAP.
Section 8.2
Fiscal Year.
The fiscal year of the Partnership shall be a fiscal year ending December 31.
Section 8.3
Reports.
(a) As soon as practicable, but in no event later than 120 days after the close of each fiscal
year of the Partnership, the General Partner shall cause to be mailed or made available, by any
reasonable means (including posting on or accessible through the Partnership’s or the SEC’s
website) to each Record Holder of a Unit as of a date selected by the General Partner, an annual
report containing financial statements of the Partnership for such fiscal year of the Partnership,
presented in accordance with U.S. GAAP, including a balance sheet and statements of operations,
Partnership equity and cash flows, such statements to be audited by a firm of independent public
accountants selected by the General Partner.
(b) As soon as practicable, but in no event later than 90 days after the close of each Quarter
except the last Quarter of each fiscal year, the General Partner shall cause to be mailed or made
available, by any reasonable means (including posting on or accessible through the Partnership’s or
the SEC’s website) to each Record Holder of a Unit, as of a date selected by the General Partner, a
report containing unaudited financial statements of the Partnership and such other information as
may be required by applicable law, regulation or rule of any National Securities Exchange on which
the Units are listed or admitted to trading, or as the General Partner determines to be necessary
or appropriate.
ARTICLE IX
TAX MATTERS
Section 9.1
Tax Returns and Information.
The Partnership shall timely file all returns of the Partnership that are required for
federal, state and local income tax purposes on the basis of the accrual method and the taxable
year or years that it is required by law to adopt, from time to time, as determined by the General
Partner. In the event the Partnership is required to use a taxable year other than a year ending on
December 31, the General Partner shall use reasonable efforts to change the taxable year of the
Partnership to a year ending on December 31. The tax information reasonably required by Record
Holders for federal and state income tax reporting purposes with respect to a taxable year shall be
furnished to them within 90 days of the close of the calendar year in which the Partnership’s
taxable year ends. The classification, realization and recognition of income, gain, losses and
deductions and other items shall be on the accrual method of accounting for federal income tax
purposes.
Section 9.2
Tax Elections.
(a) The Partnership shall make the election under Section 754 of the Code in accordance with
applicable regulations thereunder, subject to the reservation of the right to seek to revoke any
such election upon the General Partner’s determination that such revocation is in the best
interests of the Limited Partners. Notwithstanding any other provision herein contained, for the
purposes of computing the adjustments under Section 743(b) of the Code, the General Partner shall
be authorized (but not required) to adopt a convention whereby the price paid by a transferee of a
Limited Partner Interest will be deemed to be the lowest quoted closing price of the Limited
Partner Interests on any National Securities Exchange on which such Limited Partner Interests are
listed or admitted to
57
trading during the calendar month in which such transfer is deemed to occur
pursuant to Section 6.2(g) without regard to the actual price paid by such transferee.
(b) Except as otherwise provided herein, the General Partner shall determine whether the
Partnership should make any other elections permitted by the Code.
Section 9.3
Tax Controversies.
Subject to the provisions hereof, the General Partner is designated as the Tax Matters Partner
(as defined in the Code) and is authorized and required to represent the Partnership (at the
Partnership’s expense) in connection with all examinations of the Partnership’s affairs by tax
authorities, including resulting administrative and judicial proceedings, and to expend Partnership
funds for professional services and costs associated therewith. Each Partner agrees to cooperate
with the General Partner and to do or refrain from doing any or all things reasonably required by
the General Partner to conduct such proceedings.
Section 9.4
Withholding.
Notwithstanding any other provision of this Agreement, the General Partner is authorized to
take any action that may be required to cause the Partnership and other Group Members to comply
with any withholding requirements established under the Code or any other federal, state or local
law including pursuant to Sections 1441, 1442, 1445 and 1446 of the Code. To the extent that the
Partnership is required or elects to withhold and pay over to any taxing authority any amount
resulting from the allocation or distribution of income to any Partner (including by reason of
Section 1446 of the Code), the General Partner may treat the amount withheld as a distribution of
cash pursuant to Section 6.3 in the amount of such withholding from such Partner.
ARTICLE X
ADMISSION OF PARTNERS
Section 10.1
Admission of Limited Partners.
(a) AIM Oxford and C&T Coal were admitted to the Partnership as Initial Limited Partners on
August 24, 2007. Additionally, from time to time prior to the IPO Closing Date, all
Employee/Director Unitholders who held Units prior to the IPO Closing Date were admitted to the
Partnership as Limited Partners.
(b) From and after the IPO Closing Date, by acceptance of the transfer of any Limited Partner
Interests in accordance with Article IV or the acceptance of any Limited Partner Interests issued
pursuant to Article V or pursuant to a merger or consolidation or conversion pursuant to Article
XIV, and except as provided in Section 4.9, each transferee of, or other such Person acquiring,
Limited Partner Interests (including any nominee holder or an agent or representative acquiring
such Limited Partner Interests for the account of another Person) (i) shall be admitted to the
Partnership as a Limited Partner with respect to the Limited Partner Interests so transferred or
issued to such Person when any such transfer or admission is reflected in the books and records of
the Partnership and such Limited Partner becomes the Record Holder of the Limited Partner Interests
so transferred, (ii) shall become bound, and shall be deemed to have agreed to be bound, by the
terms of this Agreement, (iii) represents that the transferee or other recipient has the capacity,
power and authority to enter into this Agreement and (iv) makes the consents, acknowledgments and
waivers contained in this Agreement, all with or without execution of this Agreement by such
Person. The transfer of any Limited Partner Interests and the admission of any new Limited Partner
shall not constitute an amendment to this Agreement. A Person may become a Limited Partner or
Record Holder of a Limited Partner Interest without the consent or approval of any of the Partners.
A Person may not become a Limited Partner without acquiring a Limited Partner Interest and until
such Person is reflected in the books and records of the Partnership as the Record Holder of such
Limited Partner Interest. The rights and obligations of a Person who is a Non-Citizen Assignee
shall be determined in accordance with Section 4.9.
(c) The name and mailing address of each Limited Partner shall be listed on the books and
records of the Partnership maintained for such purpose by the Partnership or the Transfer Agent.
The General Partner shall update the books and records of the Partnership from time to time as
necessary to reflect accurately the information
58
therein (or shall cause the Transfer Agent to do
so, as applicable). A Limited Partner Interest may be represented by a Certificate, as provided in
Section 4.1.
(d) Any transfer of a Limited Partner Interest shall not entitle the transferee to share in
the profits and losses, to receive distributions, to receive allocations of income, gain, loss,
deduction or credit or any similar item or to any other rights to which the transferor was entitled
until the transferee becomes a Limited Partner pursuant to Section 10.1(b).
Section 10.2
Admission of Successor or Additional General Partner.
A successor General Partner approved pursuant to Section 11.1 or Section 11.2 or the
transferee of or successor to all or part of the General Partner Interest (represented by General
Partner Units) pursuant to Section 4.6 who is proposed to be admitted as a successor General
Partner shall be admitted to the Partnership as a General Partner, effective immediately prior to
the withdrawal or removal of the predecessor or transferring General Partner, pursuant to Section
11.1 or 11.2 or the transfer of the General Partner Interest (represented by General Partner Units)
pursuant to Section 4.6, provided, however, that no such Person shall be admitted to the
Partnership as a successor or additional General Partner until compliance with the terms of Section
4.6 has occurred and such Person has executed and delivered such other documents or instruments as
may be required to effect such admission, including a counterpart to this Agreement. Any such
successor or additional General Partner is hereby authorized to, and shall, subject to the terms
hereof, carry on the business of the members of the Partnership Group without dissolution.
Section 10.3
Amendment of Agreement and Certificate of Limited
Partnership.
To effect the admission to the Partnership of any Partner, the General Partner shall take all
steps necessary or appropriate under the Delaware Act to amend the records of the Partnership to
reflect such admission and, if necessary, to prepare as soon as practicable an amendment to this
Agreement and, if required by law, the General Partner shall prepare and file an amendment to the
Certificate of Limited Partnership.
ARTICLE XI
WITHDRAWAL OR REMOVAL OF PARTNERS
Section 11.1
Withdrawal of the General Partner.
(a) The General Partner shall be deemed to have withdrawn from the Partnership upon the
occurrence of any one of the following events (each such event herein referred to as an “Event of
Withdrawal”);
(i) The General Partner voluntarily withdraws from the Partnership by giving written notice to
the other Partners;
(ii) The General Partner transfers all of its rights as General Partner pursuant to Section
4.6;
(iii) The General Partner is removed pursuant to Section 11.2;
(iv) The General Partner (A) makes a general assignment for the benefit of creditors, (B)
files a voluntary bankruptcy petition for relief under Chapter 7 of the United States Bankruptcy
Code, (C) files a petition or answer seeking for itself a liquidation, dissolution or similar
relief (but not a reorganization) under any law, (D) files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against the General Partner in a
proceeding of the type described in clauses (A)-(C) of this Section 11.1(a)(iv) or (E) seeks,
consents to or acquiesces in the appointment of a trustee (but not a debtor-in-possession),
receiver or liquidator of the General Partner or of all or any substantial part of its properties;
(v) A final and non-appealable order of relief under Chapter 7 of the United States Bankruptcy
Code is entered by a court with appropriate jurisdiction pursuant to a voluntary or involuntary
petition by or against the General Partner; or
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(vi) (A) in the event the General Partner is a corporation, a certificate of dissolution or
its equivalent is filed for the General Partner, or 90 days expire after the date of notice to the
General Partner of revocation of its charter without a reinstatement of its charter, under the laws
of its state of incorporation, (B) in the event the General Partner is a partnership or a limited
liability company, the dissolution and commencement of winding up of the General Partner, (C) in
the event the General Partner is acting in such capacity by virtue of being a trustee of a trust,
the termination of the trust, (D) in the event the General Partner is a natural person, his death
or adjudication of incompetency and (E) otherwise in the event of the termination of the General
Partner.
If an Event of Withdrawal specified in Section 11.1(a)(iv), (v) or (vi)(A), (B) or (C) occurs,
the withdrawing General Partner shall give notice to the Limited Partners within 30 days after such
occurrence. The Partners hereby agree that only the Events of Withdrawal described in this Section
11.1 shall result in the withdrawal of the General Partner from the Partnership.
(b) Withdrawal of the General Partner from the Partnership upon the occurrence of an Event of
Withdrawal shall not constitute a breach of this Agreement under the following circumstances: (i)
at any time during the period beginning on the IPO Closing Date and ending at 12:00 midnight
Eastern Time on June 30, 2020 that the General Partner voluntarily withdraws by giving at least 90
days’ advance notice to the Unitholders of its intention to withdraw; provided that, prior to the
effective date of such withdrawal, the withdrawal is approved by Unitholders holding at least a
majority of the Outstanding Common Units (excluding Common Units held by the General Partner and
its Affiliates), such withdrawal to take effect on the date specified in such notice and that,
prior to the effective date of such withdrawal, the General Partner delivers to the Partnership an
Opinion of Counsel (a “Withdrawal Opinion of Counsel”) that such withdrawal (following the
selection of the successor General Partner) would not result in the loss of the limited liability
of any Limited Partner or any Group Member or cause any Group Member to be treated as an
association taxable as a corporation or otherwise to be taxed as an entity for federal income tax
purposes (to the extent not previously so treated or taxed); (ii) any time after 12:00 midnight
Eastern Time on June 30, 2020, the General Partner voluntarily withdraws by giving at least 90 days
advance notice to the Unitholders, such withdrawal to take effect on the date specified in such
notice (provided that, prior to the effective date of such withdrawal, the General Partner delivers
to the Partnership a Withdrawal Opinion of Counsel) or (iii) at any time that the General Partner
ceases to be the General Partner pursuant to Section 11.1(a)(ii) or is removed pursuant to Section
11.2. To the fullest extent permitted by law, the withdrawal of the General Partner from the
Partnership upon the occurrence of an Event of Withdrawal shall also constitute the withdrawal of
the General Partner as general partner or managing member, if any, to the extent applicable, of the
other Group Members. If the General Partner gives a notice of withdrawal pursuant to Section
11.1(a)(i), the holders of a Unit Majority, may, prior to the effective date of such withdrawal,
elect a successor General Partner. To the fullest extent permitted by law, the Person so elected as
successor General Partner shall automatically become the successor general partner or managing
member, to the extent applicable, of the other Group Members of which the General Partner is a
general partner or a managing member. If, prior to the effective date of the General Partner’s
withdrawal, a successor is not selected by the Unitholders as provided herein or the Partnership
does not receive a Withdrawal Opinion of Counsel, the Partnership shall be dissolved in accordance
with Section 12.1. Any successor General Partner elected in accordance with the terms of this
Section 11.1 shall be subject to the provisions of Section 10.2.
Section 11.2
Removal of the General Partner.
The General Partner may be removed if such removal is approved by the Unitholders holding at
least 80% of the Outstanding Units (including Units held by the General Partner and its Affiliates)
voting as a single class. Any such action by such holders for removal of the General Partner must
also provide for the election of a successor General Partner by the Unitholders holding a majority
of the outstanding Common Units voting as a separate class and a majority of the outstanding
Subordinated Units (if any Subordinated Units are then Outstanding) voting as a separate class
(including, in each case, Units held by the General Partner and its Affiliates). Such removal shall
be effective immediately following the admission of a successor General Partner pursuant to Section
10.2. To the fullest extent permitted by law, the removal of the General Partner shall also
automatically constitute the removal of the General Partner as general partner or managing member,
to the extent applicable, of the other Group Members of which the General Partner is a general
partner or a managing member. To the fullest extent permitted by law, if a Person is elected as a
successor General Partner in accordance with the terms of this Section 11.2, such Person shall,
upon admission pursuant to Section 10.2, automatically become a successor general partner or
managing member, to the extent applicable, of the other Group Members of which the General Partner
is a general partner or a managing
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member. The right of the holders of Outstanding Units to remove
the General Partner shall not exist or be exercised unless the Partnership has received an opinion
opining as to the matters covered by a Withdrawal Opinion of Counsel. Any successor General Partner
elected in accordance with the terms of this Section 11.2 shall be subject to the provisions of
Section 10.2.
Section 11.3
Interest of Departing General Partner and Successor
General Partner.
(a) In the event of (i) withdrawal of the General Partner under circumstances where such
withdrawal does not violate this Agreement or (ii) removal of the General Partner by the holders of
Outstanding Units under circumstances where Cause does not exist, if the successor General Partner
is elected in accordance with the terms of Section 11.1 or Section 11.2, the Departing General
Partner shall have the option, exercisable prior to the effective date of the departure of such
Departing General Partner, to require its successor to purchase its General Partner Interest
(represented by General Partner Units) and its general partner interest (or equivalent interest),
if any, in the other Group Members and all of its Incentive Distribution Rights (collectively, the
“Combined Interest”) in exchange for an amount in cash equal to the fair market value of such
Combined Interest, such amount to be determined and payable as of the effective date of its
departure. If the General Partner is removed by the Unitholders under circumstances where Cause
exists or if the General Partner withdraws under circumstances where such withdrawal violates this
Agreement, and if a successor General Partner is elected in accordance with the terms of Section
11.1 or Section 11.2 (or if the business of the Partnership is continued pursuant to Section 12.2
and the successor General Partner is not the former General Partner), such successor shall have the
option, exercisable prior to the effective date of the departure of such Departing General Partner
(or, in the event the business of the Partnership is continued, prior to the date the business of
the Partnership is continued), to purchase the Combined Interest in exchange for an amount in cash
equal to the fair market value of such Combined Interest of the Departing General Partner. In
either event, the Departing General Partner shall be entitled to receive all reimbursements due
such Departing General Partner pursuant to Section 7.4, including any employee-related liabilities
(including severance liabilities), incurred in connection with the termination of any employees
employed by the Departing General Partner or its Affiliates (other than any Group Member) for the
benefit of the Partnership or the other Group Members.
For purposes of this Section 11.3(a), the fair market value of the Departing General Partner’s
Combined Interest shall be determined by agreement between the Departing General Partner and its
successor or, failing agreement within 30 days after the effective date of such Departing General
Partner’s departure, by an independent investment banking firm or other independent expert selected
by the Departing General Partner and its successor, which, in turn, may rely on other experts, and
the determination of which shall be conclusive as to such matter. If such parties cannot agree upon
one independent investment banking firm or other independent expert within 45 days after the
effective date of such departure, then the Departing General Partner shall designate an independent
investment banking firm or other independent expert, the Departing General Partner’s successor
shall designate an independent investment banking firm or other independent expert, and such firms
or experts shall mutually select a third independent investment banking firm or independent expert,
which third independent investment banking firm or other independent expert shall determine the
fair market value of the Combined Interest of the Departing General Partner. In making its
determination, such third independent investment banking firm or other independent expert may
consider the then current trading price of Units on any National Securities Exchange on which Units
are then listed or admitted to trading, the value of the Partnership’s assets, the rights and
obligations of the Departing General Partner and other factors it may deem relevant.
(b) If the Combined Interest is not purchased in the manner set forth in Section 11.3(a), the
Departing General Partner (or its transferee) shall become a Limited Partner and its Combined
Interest shall be converted into Common Units pursuant to a valuation made by an investment banking
firm or other independent expert selected pursuant to Section 11.3(a), without reduction in such
Partnership Interest (but subject to proportionate dilution by reason of the admission of its
successor). Any successor General Partner shall indemnify the Departing General Partner (or its
transferee) as to all debts and liabilities of the Partnership arising on or after the date on
which the Departing General Partner (or its transferee) becomes a Limited Partner. For purposes of
this Agreement, conversion of the Combined Interest of the Departing General Partner to Common
Units will be characterized as if the Departing General Partner (or its transferee) contributed its
Combined Interest to the Partnership in exchange for the newly issued Common Units.
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(c) If a successor General Partner is elected in accordance with the terms of Section 11.1 or
Section 11.2 (or if the business of the Partnership is continued pursuant to Section 12.2 and the
successor General Partner is not the former General Partner) and the option described in Section
11.3(a) is not exercised by the party entitled to do so, the successor General Partner shall, at
the effective date of its admission to the Partnership, contribute to the Partnership cash in the
amount equal to the product of (x) the quotient obtained by dividing (A) the Percentage Interest of
the General Partner Interest of the Departing General Partner by (B) a percentage equal to 100%
less the Percentage Interest of the General Partner Interest of the Departing General Partner and
(y) the Net Agreed Value of the Partnership’s assets on such date. In such event, such successor
General Partner shall, subject to the following sentence, be entitled to its Percentage Interest of
all Partnership allocations and distributions to which the Departing General Partner was entitled
in respect of its General Partner Interest. In addition, the successor General Partner shall cause
this Agreement to be amended to reflect that, from and after the date of such successor General
Partner’s admission, the successor General Partner’s interest in all Partnership distributions and
allocations shall be its Percentage Interest.
Section 11.4
Termination of Subordination Period, Conversion of
Subordinated Units and Extinguishment of Cumulative Common Unit Arrearages.
Notwithstanding any provision of this Agreement, if the General Partner is removed as general
partner of the Partnership under circumstances where Cause does not exist and Units held by the
General Partner and its Affiliates are not voted in favor of such removal, (i) the Subordination
Period will end and all Outstanding Subordinated Units will immediately and automatically convert
into Common Units on a one-for-one basis (provided, however, that such converted Subordinated Units
shall remain subject to the provisions of Sections 5.5(c)(ii), 6.1(d)(x) and 6.7(c)), (ii) all
Cumulative Common Unit Arrearages on the Common Units will be extinguished and (iii) the General
Partner will have the right to convert its General Partner Interest (represented by General Partner
Units) and its Incentive Distribution Rights into Common Units or to receive cash in exchange
therefor in accordance with Section 11.3.
Section 11.5
Withdrawal of Limited Partners.
No Limited Partner shall have any right to withdraw from the Partnership; provided, however,
that when a transferee of a Limited Partner’s Limited Partner Interest becomes a Record Holder of
the Limited Partner Interest so transferred, such transferring Limited Partner shall cease to be a
Limited Partner with respect to the Limited Partner Interest so transferred.
ARTICLE XII
DISSOLUTION AND LIQUIDATION
Section 12.1
Dissolution
.
The Partnership shall not be dissolved by the admission of additional Limited Partners or by
the admission of a successor or additional General Partner in accordance with the terms of this
Agreement. Upon the removal or other event of withdrawal of the General Partner, if a successor
General Partner is elected pursuant to Section 11.1, Section 11.2 or Section 12.2, the Partnership
shall not be dissolved and such successor General Partner is hereby authorized to, and shall,
continue the business of the Partnership. The Partnership shall dissolve, and (subject to Section
12.2) its affairs shall be wound up, upon:
(a) an Event of Withdrawal of the General Partner as provided in Section 11.1(a) (other than
Section 11.1(a)(ii)), unless a successor is elected and an Opinion of Counsel is received as
provided in Section 11.1(b) or 11.2 and such successor is admitted to the Partnership pursuant to
Section 10.2;
(b) an election to dissolve the Partnership by the General Partner that is approved by the
holders of a Unit Majority;
(c) the entry of a decree of judicial dissolution of the Partnership pursuant to the
provisions of the Delaware Act; or
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(d) at any time there are no Limited Partners, unless the Partnership is continued without
dissolution in accordance with the Delaware Act.
Section 12.2
Continuation of the Business of the Partnership After
Dissolution.
Upon (a) dissolution of the Partnership following an Event of Withdrawal caused by the
withdrawal or removal of the General Partner as provided in Section 11.1(a)(i) or (iii) and the
failure of the Partners to select a successor to such Departing General Partner pursuant to Section
11.1 or Section 11.2, then, to the fullest extent permitted by law, within 90 days thereafter, or
(b) dissolution of the Partnership upon an event constituting an Event of Withdrawal as defined in
Section 11.1(a)(iv), (v) or (vi), then, to the fullest extent permitted by law, within 180 days
thereafter, the holders of a Unit Majority may elect in writing to continue the business of the
Partnership on the same terms and conditions set forth in this Agreement by appointing, effective
as of the date of the Event of Withdrawal, as a successor General Partner a Person approved by the
holders of a Unit Majority. Unless such an election is made within the applicable time period as
set forth above, the Partnership shall dissolve and conduct only activities necessary to wind up
its affairs. If such an election is so made, then:
(i) the Partnership shall continue without dissolution unless earlier dissolved in accordance
with this Article XII;
(ii) if the successor General Partner is not the former General Partner, then the interest of
the former General Partner shall be treated in the manner provided in Section 11.3; and
(iii) the successor General Partner shall be admitted to the Partnership as General Partner,
effective as of the Event of Withdrawal, by agreeing in writing to be bound by this Agreement;
provided, that the right of the holders of a Unit Majority to approve a successor General
Partner and to continue the business of the Partnership shall not exist and may not be exercised
unless the Partnership has received an Opinion of Counsel that (x) the exercise of the right would
not result in the loss of limited liability of any Limited Partner and (y) neither the Partnership
nor any Group Member would be treated as an association taxable as a corporation or otherwise be
taxable as an entity for federal income tax purposes upon the exercise of such right to continue
(to the extent not already so treated or taxed).
Section 12.3
Liquidator.
Upon dissolution of the Partnership, the General Partner, or if none, a Unit Majority, shall
select one or more Persons to act as Liquidator. The Liquidator (if other than the General Partner)
shall be entitled to receive such compensation for its services as may be approved by holders of at
least a majority of the Outstanding Common Units and Subordinated Units voting as a single class.
The Liquidator (if other than the General Partner) shall agree not to resign at any time without 15
days’ prior notice and may be removed at any time, with or without cause, by notice of removal
approved by holders of at least a majority of the Outstanding Common Units and Subordinated Units
voting as a single class. Upon dissolution, removal or resignation of the Liquidator, a successor
and substitute Liquidator (who shall have and succeed to all rights, powers and duties of the
original Liquidator) shall within 30 days thereafter be approved by holders of at least a majority
of the Outstanding Common Units and Subordinated Units voting as a single class. The right to
approve a successor or substitute Liquidator in the manner provided herein shall be deemed to refer
also to any such successor or substitute Liquidator approved in the manner herein provided. Except
as expressly provided in this Article XII, the Liquidator approved in the manner provided herein
shall have and may exercise, without further authorization or consent of any of the parties hereto,
all of the powers conferred upon the General Partner under the terms of this Agreement (but subject
to all of the applicable limitations, contractual and otherwise, upon the exercise of such powers,
other than the limitation on sale set forth in Section 7.3) necessary or appropriate to carry out
the duties and functions of the Liquidator hereunder for and during the period of time required to
complete the winding up and liquidation of the Partnership as provided for herein.
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Section 12.4
Liquidation.
The Liquidator shall proceed to dispose of the assets of the Partnership, discharge its
liabilities, and otherwise wind up its affairs in such manner and over such period as determined by
the Liquidator, subject to Section 17-804 of the Delaware Act and the following:
(a) The assets may be disposed of by public or private sale or by distribution in kind to one
or more Partners on such terms as the Liquidator and such Partner or Partners may agree. If any
property is distributed in kind, the Partner receiving the property shall be deemed for purposes of
Section 12.4(c) to have received cash equal to its fair market value; and contemporaneously
therewith, appropriate cash distributions must be made to the other Partners. The Liquidator may
defer liquidation or distribution of the Partnership’s assets for a reasonable time if it
determines that an immediate sale or distribution of all or some of the Partnership’s assets would
be impractical or would cause undue loss to the Partners.
(b) The Liquidator shall first satisfy the liabilities of the Partnership. Liabilities of the
Partnership include amounts owed to the Liquidator as compensation for serving in such capacity
(subject to the terms of Section 12.3) and amounts to Partners otherwise than in respect of their
distribution rights under Article VI. With respect to any liability that is contingent, conditional
or unmatured or is otherwise not yet due and payable, the Liquidator shall either settle such claim
for such amount as it thinks appropriate or establish a reserve of cash or other assets to provide
for its payment. When paid, any unused portion of the reserve shall be distributed as additional
liquidation proceeds.
(c) All property and all cash in excess of that required to discharge liabilities as provided
in Section 12.4(b) shall be distributed to the Partners in accordance with, and to the extent of,
the positive balances in their respective Capital Accounts, as determined after taking into account
all Capital Account adjustments (other than those made by reason of distributions pursuant to this
Section 12.4(c)) for the taxable year of the Partnership during which the liquidation of the
Partnership occurs (with such date of occurrence being determined pursuant to Treasury Regulation
Section 1.704-1(b)(2)(ii)(g)), and such distribution shall be made by the end of such taxable year
(or, if later, within 90 days after said date of such occurrence).
Section 12.5
Cancellation of Certificate of Limited Partnership.
Upon the completion of the distribution of Partnership cash and property as provided in
Section 12.4 in connection with the liquidation of the Partnership, the Certificate of Limited
Partnership and all qualifications of the Partnership as a foreign limited partnership in
jurisdictions other than the State of Delaware shall be canceled and such other actions as may be
necessary to terminate the Partnership shall be taken.
Section 12.6
Return of Contributions.
The General Partner shall not be personally liable for, and shall have no obligation to
contribute or loan any money or property to the Partnership to enable it to effectuate, the return
of the Capital Contributions of the Limited Partners or Unitholders, or any portion thereof, it
being expressly understood that any such return shall be made solely from Partnership assets.
Section 12.7
Waiver of Partition.
To the maximum extent permitted by law, each Partner hereby waives any right to partition of
the Partnership property.
Section 12.8
Capital Account Restoration.
No Limited Partner shall have any obligation to restore any negative balance in its Capital
Account upon liquidation of the Partnership. The General Partner shall be obligated to restore any
negative balance in its Capital Account upon liquidation of its interest in the Partnership by the
end of the taxable year of the Partnership during which such liquidation occurs, or, if later,
within 90 days after the date of such liquidation.
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ARTICLE XIII
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE
Section 13.1
Amendments to be Adopted Solely by the General
Partner.
Each Partner agrees that the General Partner, without the approval of any Partner, may amend
any provision of this Agreement and execute, swear to, acknowledge, deliver, file and record
whatever documents may be required in connection therewith, to reflect:
(a) a change in the name of the Partnership, the location of the principal place of business
of the Partnership, the registered agent of the Partnership or the registered office of the
Partnership;
(b) admission, substitution, withdrawal or removal of Partners in accordance with this
Agreement;
(c) a change that the General Partner determines to be necessary or appropriate to qualify or
continue the qualification of the Partnership as a limited partnership or a partnership in which
the Limited Partners have limited liability under the laws of any state or to ensure that the Group
Members will not be treated as associations taxable as corporations or otherwise taxed as entities
for federal income tax purposes;
(d) a change that the General Partner determines, (i) does not adversely affect in any
material respect the Limited Partners considered as a whole or any particular class of Partnership
Interests as compared to other classes of Partnership Interests, (ii) to be necessary or
appropriate to (A) satisfy any requirements, conditions or guidelines contained in any opinion,
directive, order, ruling or regulation of any federal or state agency or judicial authority or
contained in any federal or state statute (including the Delaware Act) or (B) facilitate the
trading of the Units (including the division of any class or classes of Outstanding Units into
different classes to facilitate uniformity of tax consequences within such classes of Units) or
comply with any rule, regulation, guideline or requirement of any National Securities Exchange on
which the Units are or will be listed or admitted to trading, (iii) to be necessary or appropriate
in connection with action taken by the General Partner pursuant to Section 5.9 or (iv) is required
to effect the intent expressed in the registration statement for the Initial Public Offering or
this Agreement or is otherwise contemplated by this Agreement;
(e) a change in the fiscal year or taxable year of the Partnership and any other changes that
the General Partner determines to be necessary or appropriate as a result of a change in the fiscal
year or taxable year of the Partnership including, if the General Partner shall so determine, a
change in the definition of “Quarter” and the dates on which distributions are to be made by the
Partnership;
(f) an amendment that is necessary, in the Opinion of Counsel, to prevent the Partnership, or
the General Partner or its directors, officers, trustees or agents from in any manner being
subjected to the provisions of the Investment Company Act of 1940, as amended, the Investment
Advisers Act of 1940, as amended, or “plan asset” regulations adopted under the Employee Retirement
Income Security Act of 1974, as amended, regardless of whether such are substantially similar to
plan asset regulations currently applied or proposed by the United States Department of Labor;
(g) an amendment that the General Partner determines to be necessary or appropriate in
connection with the authorization of issuance of any class or series of Partnership Securities
pursuant to Section 5.6, including any amendment that the General Partner determines is necessary
or appropriate in connection with (i) the adjustments of the Minimum Quarterly Distribution, First
Target Distribution, Second Target Distribution and Third Target Distribution pursuant to the
provisions of Section 5.11, (ii) the implementation of the provisions of Section 5.11 or (iii) any
modifications to the Incentive Distribution Rights made in connection with the issuance of
Partnership Securities pursuant to Section 5.6, provided that, with respect to this clause (iii),
the modifications to the Incentive Distribution Rights and the related issuance of Partnership
Securities have received Special Approval;
(h) any amendment expressly permitted in this Agreement to be made by the General Partner
acting alone;
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(i) an amendment effected, necessitated or contemplated by a Merger Agreement approved in
accordance with Section 14.3;
(j) an amendment that the General Partner determines to be necessary or appropriate to reflect
and account for the formation by the Partnership of, or investment by the Partnership in, any
corporation, partnership, joint venture, limited liability company or other entity, in connection
with the conduct by the Partnership of activities permitted by Section 2.4;
(k) a merger, conveyance or conversion pursuant to Section 14.3(d); or
(l) any other amendments substantially similar to the foregoing.
Section 13.2
Amendment Procedures.
Except as provided in Section 13.1 and Section 13.3, all amendments to this Agreement shall be
made in accordance with the requirements contained in this Section 13.2. Amendments to this
Agreement may be proposed only by the General Partner; provided, however, to the full extent
permitted by law, that the General Partner shall have no duty or obligation to propose any
amendment to this Agreement and may decline to do so free of any fiduciary duty or obligation
whatsoever to the Partnership, any Limited Partner and, in declining to propose an amendment, to
the fullest extent permitted by law shall not be required to act in good faith or pursuant to any
other standard imposed by this Agreement, any Group Member Agreement, any other agreement
contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity. A
proposed amendment shall be effective upon its approval by the General Partner and the holders of a
Unit Majority, unless a greater or different percentage is required under this Agreement or by
Delaware law. Each proposed amendment that requires the approval of the holders of a specified
percentage of Outstanding Units shall be set forth in a writing that contains the text of the
proposed amendment. If such an amendment is proposed, the General Partner shall seek the written
approval of the requisite percentage of Outstanding Units or call a meeting of the Unitholders to
consider and vote on such proposed amendment, in each case in accordance with the other provisions
of this Article XIII. The General Partner shall notify all Record Holders upon final adoption of
any such proposed amendments.
Section 13.3
Amendment Requirements.
(a) Notwithstanding the provisions of Section 13.1 and Section 13.2, no provision of this
Agreement that establishes a percentage of Outstanding Units (including Units deemed owned by the
General Partner) required to take any action shall be amended, altered, changed, repealed or
rescinded in any respect that would have the effect of reducing such voting percentage unless such
amendment is approved by the written consent or the affirmative vote of holders of Outstanding
Units whose aggregate Outstanding Units constitute not less than the voting requirement sought to
be reduced.
(b) Notwithstanding the provisions of Section 13.1 and Section 13.2, no amendment to this
Agreement may (i) enlarge the obligations of any Limited Partner without its consent, unless such
shall be deemed to have occurred as a result of an amendment approved pursuant to Section 13.3(c),
or (ii) enlarge the obligations of, restrict in any way any action by or rights of, or reduce in
any way the amounts distributable, reimbursable or otherwise payable to, the General Partner or any
of its Affiliates without its consent, which consent may be given or withheld at its option.
(c) Except as provided in Section 14.3, and without limitation of the General Partner’s
authority to adopt amendments to this Agreement without the approval of any Partners as
contemplated in Section 13.1, any amendment that would have a material adverse effect on the rights
or preferences of any class of Partnership Interests in relation to other classes of Partnership
Interests must be approved by the holders of not less than a majority of the Outstanding
Partnership Interests of the class so affected.
(d) Notwithstanding any other provision of this Agreement, except for amendments pursuant to
Section 13.1 and except as otherwise provided by Section 14.3(b), no amendments shall become
effective without the approval of the holders of at least 90% of the Outstanding Units voting as a
single class unless the Partnership
66
obtains an Opinion of Counsel to the effect that such amendment
will not affect the limited liability of any Limited Partner under applicable law.
(e) Except as provided in Section 13.1, this Section 13.3 shall only be amended with the
approval of the holders of at least 90% of the Outstanding Units.
Section 13.4
Special Meetings.
All acts of Limited Partners to be taken pursuant to this Agreement shall be taken in the
manner provided in this Article XIII. Special meetings of the Limited Partners may be called by the
General Partner or by Limited Partners owning 20% or more of the Outstanding Units of the class or
classes for which a meeting is proposed. Limited Partners shall call a special meeting by
delivering to the General Partner one or more requests in writing stating that the signing Limited
Partners wish to call a special meeting and indicating the general or specific purposes for which
the special meeting is to be called. Within 60 days after receipt of such a call from Limited
Partners or within such greater time as may be reasonably necessary for the Partnership to comply
with any statutes, rules, regulations, listing agreements or similar requirements governing the
holding of a meeting or the solicitation of proxies for use at such a meeting, the General Partner
shall send a notice of the meeting to the Limited Partners either directly or indirectly through
the Transfer Agent. A meeting shall be held at a time and place determined by the General Partner
on a date not less than 10 days nor more than 60 days after the time notice of the meeting is given
as provided in Section 16.1. Limited Partners shall not vote on matters that would cause the
Limited Partners to be deemed to be taking part in the management and control of the business and
affairs of the Partnership so as to jeopardize the Limited Partners’ limited liability under the
Delaware Act or the law of any other state in which the Partnership is qualified to do business.
Section 13.5
Notice of a Meeting.
Notice of a meeting called pursuant to Section 13.4 shall be given to the Record Holders of
the class or classes of Units for which a meeting is proposed in writing by mail or other means of
written communication in accordance with Section 16.1 at least 10 days in advance of such meeting.
The notice shall be deemed to have been given at the time when deposited in the mail or sent by
other means of written communication.
Section 13.6
Record Date.
For purposes of determining the Limited Partners entitled to notice of or to vote at a meeting
of the Limited Partners or to give approvals without a meeting as provided in Section 13.11 the
General Partner may set a Record Date, which shall not be less than 10 nor more than 60 days before
(a) the date of the meeting (unless such requirement conflicts with any rule, regulation, guideline
or requirement of any National Securities Exchange on which the Units are listed or admitted to
trading, in which case the rule, regulation, guideline or requirement of such National Securities
Exchange shall govern) or (b) in the event that approvals are sought without a meeting, the date by
which Limited Partners are requested in writing by the General Partner to give such approvals. If
the General Partner does not set a Record Date, then (a) the Record Date for determining the
Limited Partners entitled to notice of or to vote at a meeting of the Limited Partners shall be the
close of business on the day next preceding the day on which notice is given and (b) the Record
Date for determining the Limited Partners entitled to give approvals without a meeting shall be the
date the first written approval is deposited with the Partnership in care of the General Partner in
accordance with Section 13.11.
Section 13.7
Adjournment.
When a meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting and a new Record Date need not be fixed, if the time and place thereof are
announced at the meeting at which the adjournment is taken, unless such adjournment shall be for
more than 45 days. At the adjourned meeting, the Partnership may transact any business that might
have been transacted at the original meeting. If the adjournment is for more than 45 days or if a
new Record Date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given in accordance with this Article XIII.
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Section 13.8
Waiver of Notice; Approval of Meeting.
The transactions of any meeting of Limited Partners, however called and noticed, and whenever
held, shall be as valid as if it had occurred at a meeting duly held after regular call and notice,
if a quorum is present either in person or by proxy. Attendance of a Limited Partner at a meeting
shall constitute a waiver of notice of the meeting, except when the Limited Partner attends the
meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened; and except that attendance
at a meeting is not a waiver of any right to disapprove the consideration of matters required to be
included in the notice of the meeting, but not so included, if the disapproval is expressly made at
the meeting.
Section 13.9
Quorum and Voting.
The holders of a majority of the Outstanding Units of the class or classes for which a meeting
has been called (including Outstanding Units deemed owned by the General Partner) represented in
person or by proxy shall constitute a quorum at a meeting of Limited Partners of such class or
classes unless any such action by the Limited Partners requires approval by holders of a greater
percentage of such Units, in which case the quorum shall be such greater percentage. At any meeting
of the Limited Partners duly called and held in accordance with this Agreement at which a quorum is
present, the act of Limited Partners holding Outstanding Units that in the aggregate represent a
majority of the Outstanding Units entitled to vote and be present in person or by proxy at such
meeting shall be deemed to constitute the act of all Limited Partners, unless a greater or
different percentage is required with respect to such action under the provisions of this
Agreement, in which case the act of the Limited Partners holding Outstanding Units that in the
aggregate represent at least such greater or different percentage shall be required. The Limited
Partners present at a duly called or held meeting at which a quorum is present may continue to
transact business until adjournment, notwithstanding the withdrawal of enough Limited Partners to
leave less than a quorum, if any action taken (other than adjournment) is approved by the required
percentage of Outstanding Units specified in this Agreement (including Outstanding Units deemed
owned by the General Partner). In the absence of a quorum any meeting of Limited Partners may be
adjourned from time to time by the affirmative vote of holders of at least a majority of the
Outstanding Units present and entitled to vote at such meeting (including Outstanding Units deemed
owned by the General Partner) represented either in person or by proxy, but no other business may
be transacted, except as provided in Section 13.7.
Section 13.10
Conduct of a Meeting.
The General Partner shall have full power and authority concerning the manner of conducting
any meeting of the Limited Partners or solicitation of approvals in writing, including the
determination of Persons entitled to vote, the existence of a quorum, the satisfaction of the
requirements of Section 13.4, the conduct of voting, the validity and effect of any proxies and the
determination of any controversies, votes or challenges arising in connection with or during the
meeting or voting. The General Partner shall designate a Person to serve as chairman of any meeting
and shall further designate a Person to take the minutes of any meeting. All minutes shall be kept
with the records of the Partnership maintained by the General Partner. The General Partner may make
such other regulations consistent with applicable law and this Agreement as it may deem advisable
concerning the conduct of any meeting of the Limited Partners or solicitation of approvals in
writing, including regulations in regard to the appointment of proxies, the appointment and duties
of inspectors of votes and approvals, the submission and examination of proxies and other evidence
of the right to vote, and the revocation of approvals in writing.
Section 13.11
Action Without a Meeting.
If authorized by the General Partner, any action that may be taken at a meeting of the Limited
Partners may be taken without a meeting if an approval in writing setting forth the action so taken
is signed by Limited Partners owning not less than the minimum percentage of the Outstanding Units
(including Units deemed owned by the General Partner) that would be necessary to authorize or take
such action at a meeting at which all the Limited Partners were present and voted (unless such
provision conflicts with any rule, regulation, guideline or requirement of any National Securities
Exchange on which the Units are listed or admitted to trading, in which case the rule, regulation,
guideline or requirement of such National Securities Exchange shall govern). Prompt notice of the
taking of action
without a meeting shall be given to the Limited Partners who have not approved in
writing. The General Partner may specify that any written ballot submitted to Limited Partners for
the purpose of taking any action
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without a meeting shall be returned to the Partnership within the
time period, which shall be not less than 20 days, specified by the General Partner. If a ballot
returned to the Partnership does not vote all of the Units held by the Limited Partners, the
Partnership shall be deemed to have failed to receive a ballot for the Units that were not voted.
If approval of the taking of any action by the Limited Partners is solicited by any Person other
than by or on behalf of the General Partner, the written approvals shall have no force and effect
unless and until (a) they are deposited with the Partnership in care of the General Partner, (b)
approvals sufficient to take the action proposed are dated as of a date not more than 90 days prior
to the date sufficient approvals are deposited with the Partnership and (c) an Opinion of Counsel
is delivered to the General Partner to the effect that the exercise of such right and the action
proposed to be taken with respect to any particular matter (i) will not cause the Limited Partners
to be deemed to be taking part in the management and control of the business and affairs of the
Partnership so as to jeopardize the Limited Partners’ limited liability and (ii) is otherwise
permissible under the state statutes then governing the rights, duties and liabilities of the
Partnership and the Partners.
Section 13.12
Right to Vote and Related Matters.
(a) Only those Record Holders of the Units on the Record Date set pursuant to Section 13.6
(and also subject to the limitations contained in the definition of “Outstanding”) shall be
entitled to notice of, and to vote at, a meeting of Limited Partners or to act with respect to
matters as to which the holders of the Outstanding Units have the right to vote or to act. All
references in this Agreement to votes of, or other acts that may be taken by, the Outstanding Units
shall be deemed to be references to the votes or acts of the Record Holders of such Outstanding
Units.
(b) With respect to Units that are held for a Person’s account by another Person (such as a
broker, dealer, bank, trust company or clearing corporation, or an agent of any of the foregoing),
in whose name such Units are registered, such other Person shall, in exercising the voting rights
in respect of such Units on any matter, and unless the arrangement between such Persons provides
otherwise, vote such Units in favor of, and at the direction of, the Person who is the beneficial
owner, and the Partnership shall be entitled to assume it is so acting without further inquiry. The
provisions of this Section 13.12(b) (as well as all other provisions of this Agreement) are subject
to the provisions of Section 4.3.
ARTICLE XIV
MERGER, CONSOLIDATION OR CONVERSION
Section 14.1
Authority.
The Partnership may merge or consolidate with or into one or more corporations, limited
liability companies, statutory trusts or associations, real estate investment trusts, common law
trusts or unincorporated businesses, including a partnership (whether general or limited (including
a limited liability partnership)) or convert into any such entity, whether such entity is formed
under the laws of the State of Delaware or any other state of the United States of America,
pursuant to a written plan of merger or consolidation (“Merger Agreement”) or a written plan of
conversion (“Plan of Conversion”), as the case may be, in accordance with this Article XIV.
Section 14.2
Procedure for Merger, Consolidation or Conversion.
(a) Merger, consolidation or conversion of the Partnership pursuant to this Article XIV
requires the prior consent of the General Partner, provided, however, that, to the fullest extent
permitted by law, the General Partner shall have no duty or obligation to consent to any merger,
consolidation or conversion of the Partnership and may decline to do so free of any fiduciary duty
or obligation whatsoever to the Partnership, any Limited Partner and, in declining to consent to a
merger, consolidation or conversion, shall not be required to act in good faith or pursuant to any
other standard imposed by this Agreement, any other agreement contemplated hereby or under the Act
or any other law, rule or regulation or at equity.
(b) If the General Partner shall determine to consent to the merger or consolidation, the
General Partner shall approve the Merger Agreement, which shall set forth:
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(i) the name and state of domicile of each of the business entities proposing to merge or
consolidate;
(ii) the name and state of domicile of the business entity that is to survive the proposed
merger or consolidation (the “Surviving Business Entity”);
(iii) the terms and conditions of the proposed merger or consolidation;
(iv) the manner and basis of exchanging or converting the equity securities of each
constituent business entity for, or into, cash, property or interests, rights, securities or
obligations of the Surviving Business Entity and (A) if any general or limited partner interests,
securities or rights of any constituent business entity are not to be exchanged or converted solely
for, or into, cash, property or general or limited partner interests, rights, securities or
obligations of the Surviving Business Entity, the cash, property or interests, rights, securities
or obligations of any general or limited partnership, corporation, trust, limited liability
company, unincorporated business or other entity (other than the Surviving Business Entity) that
the holders of such general or limited partner interests, securities or rights are to receive in
exchange for, or upon conversion of their interests, securities or rights and (B) in the case of
securities represented by certificates, upon the surrender of such certificates, which cash,
property or general or limited partner interests, rights, securities or obligations of the
Surviving Business Entity or any general or limited partnership, corporation, trust, limited
liability company, unincorporated business or other entity (other than the Surviving Business
Entity), or evidences thereof, are to be delivered;
(v) a statement of any changes in the constituent documents or the adoption of new constituent
documents (the articles or certificate of incorporation, articles of trust, declaration of trust,
certificate or agreement of limited partnership, certificate of formation or limited liability
company agreement, operating agreement or other similar charter or governing document) of the
Surviving Business Entity to be effected by such merger or consolidation;
(vi) the effective time of the merger, which may be the date of the filing of the certificate
of merger pursuant to Section 14.4 or a later date specified in or determinable in accordance with
the Merger Agreement (provided, that if the effective time of the merger is to be later than the
date of the filing of such certificate of merger, the effective time shall be fixed at a date or
time certain at or prior to the time of the filing of such certificate of merger and stated
therein); and
(vii) such other provisions with respect to the proposed merger or consolidation that the
General Partner determines to be necessary or appropriate.
(c) If the General Partner shall determine to consent to the conversion, the General Partner
shall approve the Plan of Conversion, which shall set forth:
(i) the name of the converting entity and the converted entity;
(ii) a statement that the Partnership is continuing its existence in the organizational form
of the converted entity;
(iii) a statement as to the type of entity that the converted entity is to be and the state or
country under the laws of which the converted entity is to be incorporated, formed or organized;
(iv) the manner and basis of exchanging or converting the equity securities of each
constituent business entity for, or into, cash, property or interests, rights, securities or
obligations of the converted entity;
(v) in an attachment or exhibit, the certificate of limited partnership of the Partnership;
(vi) in an attachment or exhibit, the certificate of limited partnership, articles of
incorporation, or other organizational documents of the converted entity;
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(vii) the effective time of the conversion, which may be the date of the filing of the
certificate of conversion or a later date specified in or determinable in accordance with the Plan
of Conversion (provided, that if the effective time of the conversion is to be later than the date
of the filing of such certificate of conversion, the effective time shall be fixed at a date or
time certain at or prior to the time of the filing of such certificate of conversion and stated
therein); and
(viii) such other provisions with respect to the proposed conversion that the General Partner
determines to be necessary or appropriate.
Section 14.3
Approval by Limited Partners.
(a) Except as provided in Sections 14.3(d) and 14.3(e), the General Partner, upon its approval
of the Merger Agreement or the Plan of Conversion, as the case may be, shall direct that the Merger
Agreement or the Plan of Conversion, as applicable, be submitted to a vote of Limited Partners,
whether at a special meeting or by written consent, in either case in accordance with the
requirements of Article XIII. A copy or a summary of the Merger Agreement or the Plan of
Conversion, as the case may be, shall be included in or enclosed with the notice of a special
meeting or the written consent.
(b) Except as provided in Sections 14.3(d) and 14.3(e), the Merger Agreement or Plan of
Conversion, as the case may be, shall be approved upon receiving the affirmative vote or consent of
the holders of a Unit Majority.
(c) Except as provided in Sections 14.3(d) and 14.3(e), after such approval by vote or consent
of the Limited Partners, and at any time prior to the filing of the certificate of merger or
certificate of conversion pursuant to Section 14.4, the merger, consolidation or conversion may be
abandoned pursuant to provisions therefor, if any, set forth in the Merger Agreement or Plan of
Conversion, as the case may be.
(d) Notwithstanding anything else contained in this Article XIV or in this Agreement, the
General Partner is permitted, without Limited Partner approval, to convert the Partnership or any
Group Member into a new limited liability entity, to merge the Partnership or any Group Member
into, or convey all of the Partnership’s assets to, another limited liability entity that shall be
newly formed and shall have no assets, liabilities or operations at the time of such conversion,
merger or conveyance other than those it receives from the Partnership or other Group Member if (i)
the General Partner has received an Opinion of Counsel that the conversion, merger or conveyance,
as the case may be, would not result in the loss of the limited liability of any Limited Partner or
cause the Partnership to be treated as an association taxable as a corporation or otherwise to be
taxed as an entity for federal income tax purposes (to the extent not previously treated as such),
(ii) the sole purpose of such conversion, merger, or conveyance is to effect a mere change in the
legal form of the Partnership into another limited liability entity and (iii) the governing
instruments of the new entity provide the Limited Partners and the General Partner with the same
rights and obligations as are herein contained.
(e) Additionally, notwithstanding anything else contained in this Article XIV or in this
Agreement, the General Partner is permitted, without Limited Partner approval, to merge or
consolidate the Partnership with or into another entity if (i) the General Partner has received an
Opinion of Counsel that the merger or consolidation, as the case may be, would not result in the
loss of the limited liability of any Limited Partner or cause the Partnership to be treated as an
association taxable as a corporation or otherwise to be taxed as an entity for federal income tax
purposes (to the extent not previously treated as such), (ii) the merger or consolidation would not
result in an amendment to this Agreement, other than any amendments that could be adopted pursuant
to Section 13.1, (iii) the Partnership is the Surviving Business Entity in such merger or
consolidation, (iv) each Unit outstanding immediately prior to the effective date of the merger or
consolidation is to be a substantially identical Unit of the Partnership after the effective date
of the merger or consolidation, and (v) the number of Partnership Securities to be issued by the
Partnership in such merger or consolidation does not exceed 20% of the Partnership Securities
Outstanding immediately prior to the effective date of such merger or consolidation.
(f) Pursuant to Section 17-211(g) of the Delaware Act, an agreement of merger or consolidation
approved in accordance with this Article XIV may (a) effect any amendment to this Agreement or (b)
effect the adoption of a new partnership agreement for the Partnership if it is the Surviving
Business Entity. Any such
71
amendment or adoption made pursuant to this Section 14.3 shall be effective at the effective
time or date of the merger or consolidation.
Section 14.4
Certificate of Merger.
Upon the required approval by the General Partner and the Unitholders of a Merger Agreement or
a Plan of Conversion, as the case may be, a certificate of merger or certificate of conversion, as
applicable, shall be executed and filed with the Secretary of State of the State of Delaware in
conformity with the requirements of the Delaware Act.
Section 14.5
Effect of Merger, Consolidation or Conversion.
(a) At the effective time of the certificate of merger:
(i) all of the rights, privileges and powers of each of the business entities that has merged
or consolidated, and all property, real, personal and mixed, and all debts due to any of those
business entities and all other things and causes of action belonging to each of those business
entities, shall be vested in the Surviving Business Entity and after the merger or consolidation
shall be the property of the Surviving Business Entity to the extent they were of each constituent
business entity;
(ii) the title to any real property vested by deed or otherwise in any of those constituent
business entities shall not revert and is not in any way impaired because of the merger or
consolidation;
(iii) all rights of creditors and all liens on or security interests in property of any of
those constituent business entities shall be preserved unimpaired; and
(iv) all debts, liabilities and duties of those constituent business entities shall attach to
the Surviving Business Entity and may be enforced against it to the same extent as if the debts,
liabilities and duties had been incurred or contracted by it.
(b) At the effective time of the certificate of conversion:
(i) the Partnership shall continue to exist, without interruption, but in the organizational
form of the converted entity rather than in its prior organizational form;
(ii) all rights, title, and interests to all real estate and other property owned by the
Partnership shall continue to be owned by the converted entity in its new organizational form
without reversion or impairment, without further act or deed, and without any transfer or
assignment having occurred, but subject to any existing liens or other encumbrances thereon;
(iii) all liabilities and obligations of the Partnership shall continue to be liabilities and
obligations of the converted entity in its new organizational form without impairment or diminution
by reason of the conversion;
(iv) all rights of creditors or other parties with respect to or against the prior interest
holders or other owners of the Partnership in their capacities as such in existence as of the
effective time of the conversion will continue in existence as to those liabilities and obligations
and may be pursued by such creditors and obligees as if the conversion did not occur;
(v) a proceeding pending by or against the Partnership or by or against any of Partners in
their capacities as such may be continued by or against the converted entity in its new
organizational form and by or against the prior partners without any need for substitution of
parties; and
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(vi) the Partnership Units that are to be converted into partnership interests, shares,
evidences of ownership, or other securities in the converted entity as provided in the Plan of
Conversion shall be so converted, and Partners shall be entitled only to the rights provided in the
Plan of Conversion.
ARTICLE XV
RIGHT TO ACQUIRE LIMITED PARTNER INTERESTS
Section 15.1
Right to Acquire Limited Partner Interests.
(a) Notwithstanding any other provision of this Agreement, if at any time from and after the
IPO Closing Date the General Partner and its Affiliates hold more than 80% of the total Limited
Partner Interests of any class then Outstanding, the General Partner shall then have the right,
which right it may assign and transfer in whole or in part to the Partnership or any Affiliate of
the General Partner, exercisable at its option, to purchase all, but not less than all, of such
Limited Partner Interests of such class then Outstanding held by Persons other than the General
Partner and its Affiliates, at the greater of (x) the Current Market Price as of the date three
days prior to the date that the notice described in Section 15.1(b) is mailed and (y) the highest
price paid by the General Partner or any of its Affiliates for any such Limited Partner Interest of
such class purchased during the 90-day period preceding the date that the notice described in
Section 15.1(b) is mailed.
(b) If the General Partner, any Affiliate of the General Partner or the Partnership elects to
exercise the right to purchase Limited Partner Interests granted pursuant to Section 15.1(a), the
General Partner shall deliver to the Transfer Agent notice of such election to purchase (the
“Notice of Election to Purchase”) and shall cause the Transfer Agent to mail a copy of such Notice
of Election to Purchase to the Record Holders of Limited Partner Interests of such class or classes
(as of a Record Date selected by the General Partner) at least 10, but not more than 60, days prior
to the Purchase Date. Such Notice of Election to Purchase shall also be published for a period of
at least three consecutive days in at least two daily newspapers of general circulation printed in
the English language and published in the Borough of Manhattan, New York. The Notice of Election to
Purchase shall specify the Purchase Date and the price (determined in accordance with Section
15.1(a)) at which Limited Partner Interests will be purchased and state that the General Partner,
its Affiliate or the Partnership, as the case may be, elects to purchase such Limited Partner
Interests, upon surrender of Certificates representing such Limited Partner Interests in exchange
for payment, at such office or offices of the Transfer Agent as the Transfer Agent may specify, or
as may be required by any National Securities Exchange on which such Limited Partner Interests are
listed. Any such Notice of Election to Purchase mailed to a Record Holder of Limited Partner
Interests at his address as reflected in the records of the Transfer Agent shall be conclusively
presumed to have been given regardless of whether the owner receives such notice. On or prior to
the Purchase Date, the General Partner, its Affiliate or the Partnership, as the case may be, shall
deposit with the Transfer Agent cash in an amount sufficient to pay the aggregate purchase price of
all of such Limited Partner Interests to be purchased in accordance with this Section 15.1. If the
Notice of Election to Purchase shall have been duly given as aforesaid at least 10 days prior to
the Purchase Date, and if on or prior to the Purchase Date the deposit described in the preceding
sentence has been made for the benefit of the holders of Limited Partner Interests subject to
purchase as provided herein, then from and after the Purchase Date, notwithstanding that any
Certificate shall not have been surrendered for purchase, all rights of the holders of such Limited
Partner Interests (including any rights pursuant to Article IV, Article V, Article VI, and Article
XII) shall thereupon cease, except the right to receive the purchase price (determined in
accordance with Section 15.1(a)) for Limited Partner Interests therefor, without interest, upon
surrender to the Transfer Agent of any Certificates representing such Limited Partner Interests,
and such Limited Partner Interests shall thereupon be deemed to be transferred to the General
Partner, its Affiliate or the Partnership, as the case may be, on the record books of the Transfer
Agent and the Partnership, and the General Partner or any Affiliate of the General Partner, or the
Partnership, as the case may be, shall be deemed to be the owner of all such Limited Partner
Interests from and after the Purchase Date and shall have all rights as the owner of such Limited
Partner Interests (including all rights as owner of such Limited Partner Interests pursuant to
Article IV, Article V, Article VI and Article XII).
(c) At any time from and after the Purchase Date, a holder of an Outstanding Limited Partner
Interest subject to purchase as provided in this Section 15.1 may surrender any Certificate
evidencing such Limited Partner Interest to the Transfer Agent in exchange for payment of the
amount described in Section 15.1(a), therefor, without interest thereon.
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ARTICLE XVI
GENERAL PROVISIONS
Section 16.1
Addresses and Notices; Written Communications.
(a) Any notice, demand, request, report or proxy materials required or permitted to be given
or made to a Partner under this Agreement shall be in writing and shall be deemed given or made
when delivered in person or when sent by first class United States mail or by other means of
written communication to the Partner at the address described below. Any notice, payment or report
to be given or made to a Partner hereunder shall be deemed conclusively to have been given or made,
and the obligation to give such notice or report or to make such payment shall be deemed
conclusively to have been fully satisfied, upon sending of such notice, payment or report to the
Record Holder of such Partnership Securities at his address as shown on the records of the Transfer
Agent or as otherwise shown on the records of the Partnership, regardless of any claim of any
Person who may have an interest in such Partnership Securities by reason of any assignment or
otherwise. An affidavit or certificate of making of any notice, payment or report in accordance
with the provisions of this Section 16.1 executed by the General Partner, the Transfer Agent or the
mailing organization shall be prima facie evidence of the giving or making of such notice, payment
or report. If any notice, payment or report addressed to a Record Holder at the address of such
Record Holder appearing on the books and records of the Transfer Agent or the Partnership is
returned by the United States Postal Service marked to indicate that the United States Postal
Service is unable to deliver it, such notice, payment or report and any subsequent notices,
payments and reports shall be deemed to have been duly given or made without further mailing (until
such time as such Record Holder or another Person notifies the Transfer Agent or the Partnership of
a change in his address) if they are available for the Partner at the principal office of the
Partnership for a period of one year from the date of the giving or making of such notice, payment
or report to the other Partners. Any notice to the Partnership shall be deemed given if received by
the General Partner at the principal office of the Partnership designated pursuant to Section 2.3.
The General Partner may rely and shall be protected in relying on any notice or other document from
a Partner or other Person if believed by it to be genuine.
(b) The terms “in writing,” “written communications,” “written notice” and words of similar
import shall be deemed satisfied under this Agreement by use of e-mail and other forms of
electronic communication.
Section 16.2
Further Action.
The parties shall execute and deliver all documents, provide all information and take or
refrain from taking action as may be necessary or appropriate to achieve the purposes of this
Agreement.
Section 16.3
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
heirs, executors, administrators, successors, legal representatives and permitted assigns.
Section 16.4
Integration.
This Agreement constitutes the entire agreement among the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.
Section 16.5
Creditors.
None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable
by, any creditor of the Partnership.
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Section 16.6
Waiver.
No failure by any party to insist upon the strict performance of any covenant, duty, agreement
or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof
shall constitute waiver of any such breach of any other covenant, duty, agreement or condition.
Section 16.7
Third-Party Beneficiaries.
Each Partner agrees that any Indemnitee shall be entitled to assert rights and remedies
hereunder as a third-party beneficiary hereto with respect to those provisions of this Agreement
affording a right, benefit or privilege to such Indemnitee.
Section 16.8
Counterparts.
This Agreement may be executed in counterparts, all of which together shall constitute a
single agreement binding on all the parties hereto, notwithstanding that all such parties are not
signatories to the original or the same counterpart. Each party shall become bound by this
Agreement (a) immediately upon fixing its signature hereto, (b) in the case of the General Partner
and the holders of Limited Partner Interests outstanding immediately prior to the closing of the
Initial Public Offering, immediately upon the closing of the Initial Public Offering, without the
execution hereof, or (c) in the case of a Person acquiring Limited Partner Interests pursuant to
Section 10.1(b), immediately upon the acquisition of such Limited Partner Interests, without
execution hereof.
Section 16.9
Applicable Law; Forum, Venue and Jurisdiction.
(a) This Agreement shall be construed in accordance with and governed by the laws of the State
of Delaware, without regard to the principles of conflicts of law.
(b) To the fullest extent permitted by law, each of the Partners and each Person holding any
beneficial interest in the Partnership (whether through a broker, dealer, bank, trust company or
clearing corporation or an agent of any of the foregoing or otherwise):
(i) irrevocably agrees that any claims, suits, actions or proceedings (A) arising out of or
relating in any way to this Agreement (including any claims, suits or actions to interpret, apply
or enforce the provisions of this Agreement or the duties, obligations or liabilities among
Partners or of Partners to the Partnership, or the rights or powers of, or restrictions on, the
Partners or the Partnership), (B) brought in a derivative manner on behalf of the Partnership, (C)
asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of
the Partnership or the General Partner, or owed by the General Partner, to the Partnership or the
Partners, (D) asserting a claim arising pursuant to any provision of the Delaware Act or (E)
asserting a claim governed by the internal affairs doctrine shall be exclusively brought in the
Court of Chancery of the State of Delaware, in each case regardless of whether such claims, suits,
actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law,
statutory, equitable, legal or other grounds, or are derivative or direct claims;
(ii) irrevocably submits to the exclusive jurisdiction of the Court of Chancery of
the State of Delaware in connection with any such claim, suit, action or proceeding;
(iii) agrees not to, and waives any right to, assert in any such claim, suit, action or
proceeding that (A) it is not personally subject to the jurisdiction of the Court of Chancery of
the State of Delaware or of any other court to which proceedings in the Court of Chancery of the
State of Delaware may be appealed, (B) such claim, suit, action or proceeding is brought in an
inconvenient forum, or (C) the venue of such claim, suit, action or proceeding is improper;
(iv) expressly waives any requirement for the posting of a bond by a party bringing such
claim, suit, action or proceeding; and
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(v) consents to process being served in any such claim, suit, action or proceeding by mailing,
certified mail, return receipt requested, a copy thereof to such party at the address in effect for
notices hereunder, and agrees that such services shall constitute good and sufficient service of
process and notice thereof; provided, nothing in clause (v) hereof shall affect or limit any right
to serve process in any other manner permitted by law.
Section 16.10
Invalidity of Provisions.
If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein
shall not be affected thereby.
Section 16.11
Consent of Partners.
Each Partner hereby expressly consents and agrees that, whenever in this Agreement it is
specified that an action may be taken upon the affirmative vote or consent of less than all of the
Partners (including any Amendment of this Agreement), such action may be so taken upon the
concurrence of less than all of the Partners and each Partner shall be bound by the results of such
action (including any Amendment of this Agreement).
Section 16.12
Facsimile Signatures.
The use of facsimile signatures affixed in the name and on behalf of the transfer agent and
registrar of the Partnership on Certificates evidencing ownership of Partnership Securities is
expressly permitted by this Agreement.
Section 16.13
Provisions Regarding Effective Time.
This Agreement is to become effective upon the closing of the Initial Public Offering, and
accordingly in connection therewith the following shall apply:
(a) This Agreement shall from and after its approval by the Partners in accordance with the
Second A/R Partnership Agreement be an agreement binding upon and enforceable by the Partners
subject to the application of the provisions hereof generally being effective upon the closing of
the Initial Public Offering.
(b) The affairs of the Partnership shall continue to be governed by the terms of the Second
A/R Partnership Agreement until the closing of the Initial Public Offering.
(c) In the event that the closing of the Initial Public Offering does not occur on or before
December 31, 2010, this Agreement shall be null and void and of no force and effect and the Second
A/R Partnership Agreement shall continue in full force and effect.
ARTICLE XVII
CERTAIN TRANSACTIONS IN CONNECTION WITH THE INITIAL PUBLIC OFFERING
Section 17.1
Non-Pro Rata Redemption of Common Units.
The General Partner is authorized to use the proceeds from any exercise by the Underwriters of
the Over-Allotment Option in the Initial Public Offering to redeem from the Initial Limited
Partners, but not from other Partners, that number of Common Units that corresponds to the number
of Common Units issued to the Underwriters upon such exercise at a price per Common Unit equal to
the price per Common Unit received by the Partnership for the Common Units issued to the
Underwriters upon such exercise.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF
, the General Partner has executed this Agreement as of the date first
written above.
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GENERAL PARTNER
OXFORD RESOURCES GP, LLC
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By:
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/s/ Charles C. Ungurean
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Name:
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Charles C. Ungurean
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Title:
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President and Chief Executive Officer
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[
Signature Page — Third Amended and Restated
Agreement of Limited Partnership of Oxford Resource Partners, LP
]
EXHIBIT A
to the Third Amended and Restated
Agreement of Limited Partnership of
Oxford Resource Partners, LP
Certificate Evidencing Common Units
Representing Limited Partner Interests in
Oxford Resource Partners, LP
Certificate No.:[_] Number of Common Units:___
In accordance with Section 4.1 of the Third Amended and Restated Agreement of Limited
Partnership of Oxford Resource Partners, LP, as amended, supplemented or restated from time to time
(the “Partnership Agreement”), Oxford Resource Partners, LP, a Delaware limited partnership (the
“Partnership”), hereby certifies that (the “Holder”) is the registered owner of
the above-designated number of Common Units representing limited partner interests in the
Partnership (the “Common Units”) transferable on the books of the Partnership, in person or by duly
authorized attorney, upon surrender of this Certificate properly endorsed. The rights, preferences
and limitations of the Common Units are set forth in, and this Certificate and the Common Units
represented hereby are issued and shall in all respects be subject to the terms and provisions of,
the Partnership Agreement. Copies of the Partnership Agreement are on file at, and will be
furnished without charge on delivery of written request to the Partnership at, the principal office
of the Partnership located at 41 South High Street, Suite 3450, Columbus, Ohio 43215. Capitalized
terms used herein but not defined herein shall have the meanings given them in the Partnership
Agreement.
THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF OXFORD RESOURCE PARTNERS, LP
(THE “PARTNERSHIP”) THAT THIS SECURITY MAY NOT BE SOLD, OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED IF SUCH TRANSFER WOULD (A) VIOLATE THE THEN APPLICABLE FEDERAL OR
STATE SECURITIES LAWS OR RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION,
ANY STATE SECURITIES COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY WITH JURISDICTION OVER
SUCH TRANSFER, (B) TERMINATE THE EXISTENCE OR QUALIFICATION OF THE PARTNERSHIP UNDER THE
LAWS OF THE STATE OF DELAWARE, (C) CAUSE THE PARTNERSHIP TO BE TREATED AS AN ASSOCIATION
TAXABLE AS A CORPORATION OR OTHERWISE TO BE TAXED AS AN ENTITY FOR FEDERAL INCOME TAX
PURPOSES (TO THE EXTENT NOT ALREADY SO TREATED OR TAXED) OR (D) VIOLATE THE TERMS AND
CONDITIONS OF THE PARTNERSHIP AGREEMENT. THE GENERAL PARTNER OF THE PARTNERSHIP MAY IMPOSE
ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS SECURITY IF IT RECEIVES AN OPINION OF
COUNSEL THAT SUCH RESTRICTIONS ARE NECESSARY TO AVOID A SIGNIFICANT RISK OF THE PARTNERSHIP
BECOMING TAXABLE AS A CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY FOR FEDERAL
INCOME TAX PURPOSES. THE RESTRICTIONS SET FORTH ABOVE SHALL NOT PRECLUDE THE SETTLEMENT OF
ANY TRANSACTIONS INVOLVING THIS SECURITY ENTERED INTO THROUGH THE FACILITIES OF ANY NATIONAL
SECURITIES EXCHANGE ON WHICH THIS SECURITY IS LISTED OR ADMITTED TO TRADING.
The Holder, by accepting this Certificate, is deemed to have (i) requested admission as, and
agreed to become, a Limited Partner and to have agreed to comply with and be bound by and to have
executed the Partnership Agreement, (ii) represented and warranted that the Holder has all right,
power and authority and, if an individual, the capacity necessary to enter into the Partnership
Agreement and (iii) made the waivers and given the consents and approvals contained in the
Partnership Agreement.
A-1
This Certificate shall not be valid for any purpose unless it has been countersigned and
registered by the Transfer Agent and Registrar. This Certificate shall be governed by and
construed in accordance with the laws of the State of Delaware.
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Dated:
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Oxford Resource Partners, LP
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Countersigned and Registered by:
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By:
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Oxford Resources GP, LLC,
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its General Partner
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By:
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as Transfer Agent and Registrar
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Name:
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By:
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By:
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Authorized Signature
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A-2
[Reverse of Certificate]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as follows according to applicable laws or regulations:
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TEN COM —
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as tenants in common
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UNIF GIFT/TRANSFERS MIN ACT
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TEN ENT —
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as tenants by the entireties
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Custodian
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(Cust) (Minor)
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JT TEN —
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as joint tenants with right of survivorship
and not as tenants in common
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under Uniform Gifts/Transfers to CD Minors Act
(State)
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Additional abbreviations, though not in the above list, may also be used.
A-3
ASSIGNMENT OF COMMON UNITS OF
OXFORD RESOURCE PARTNERS, LP
FOR VALUE RECEIVED,
hereby assigns, conveys, sells and transfers unto
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(Please print or typewrite name and address of assignee)
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(Please insert Social Security or
other identifying number of assignee)
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Common Units representing limited partner interests evidenced by this Certificate,
subject to the Partnership Agreement, and does hereby irrevocably constitute and appoint
as its attorney-in-fact with full power of substitution to transfer the same on the
books of Oxford Resource Partners, LP
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Date:
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NOTE: The signature to any
endorsement hereon must correspond
with the name as written upon the
face of this Certificate in every
particular, without alteration,
enlargement or change.
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THE SIGNATURE(S) MUST BE
GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS
WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE
17Ad-15
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(Signature)
(Signature)
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No transfer of the Common Units evidenced hereby will be registered on the books of the
Partnership, unless the Certificate evidencing the Common Units to be transferred is surrendered
for registration or transfer.
A-4
Exhibit 3.2
Execution Version
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
OXFORD RESOURCES GP, LLC
A Delaware Limited Liability Company
Dated as of
July 19, 2010
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS
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2
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Section 1.01 Definitions
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2
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Section 1.02 Construction
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11
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ARTICLE II. ORGANIZATION
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11
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Section 2.01 Formation
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11
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Section 2.02 Name
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11
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Section 2.03 Registered Office; Registered Agent; Principal Office
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11
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Section 2.04 Purposes
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11
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Section 2.05 Foreign Qualification
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12
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Section 2.06 Term.
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13
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Section 2.07 No State Law Partnership
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13
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ARTICLE III. MEMBERSHIP INTERESTS; UNITS
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13
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Section 3.01 Membership Interests; Additional Members
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13
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Section 3.02 Liability; Rights, Duties and Obligations
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14
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Section 3.03 Withdrawal
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14
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ARTICLE IV. TRANSFER OF UNITS
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14
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Section 4.01 General
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14
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Section 4.02 Requirements Applicable to All Transfers and Admissions
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14
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Section 4.03 Assignees
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15
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Section 4.04 Restrictions on Hypothecation
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16
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Section 4.05 [Intentionally Omitted]
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16
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Section 4.06 General Provisions Relating to Transfer of Units
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16
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ARTICLE V. [Intentionally Omitted]
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16
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ARTICLE VI. ISSUANCE OF UNITS; CERTIFICATES
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16
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Section 6.01 Issuance of Additional Units
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16
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Section 6.02 Certificates
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17
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Section 6.03 Transfers
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18
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Section 6.04 Record Holders
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18
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ARTICLE VII. CAPITAL CONTRIBUTIONS
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18
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Section 7.01 Prior Capital Contributions
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18
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Section 7.02 Additional Contributions
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18
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Section 7.03 Loans
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18
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Section 7.04 Return of Contributions
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18
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Section 7.05 Capital Accounts
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19
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Section 7.06 Effect of Transfer of a Unit
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19
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Section 7.07 Compliance with Certain Tax Provisions
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ARTICLE VIII. DISTRIBUTIONS AND ALLOCATIONS
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19
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Section 8.01 Distributions
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19
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Section 8.02 Distributions on Dissolution and Winding Up
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20
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Section 8.03 Allocations
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20
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Section 8.04 Varying Interests
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22
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Section 8.05 Withheld Taxes
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22
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Section 8.06 Limitations on Distributions
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22
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ARTICLE IX. MANAGEMENT
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23
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Section 9.01 Management by Board of Directors and Executive Officers
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23
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Section 9.02 Number; Qualification; Tenure
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23
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Section 9.03 Chairman of the Board
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23
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Section 9.04 Regular Meetings
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24
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Section 9.05 Special Meetings
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24
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Section 9.06 Notice
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24
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Section 9.07 Action by Consent of Board
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24
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Section 9.08 Conference Telephone Meetings
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24
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Section 9.09 Quorum
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24
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Section 9.10 Vacancies; Increases in the Number of Directors
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25
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Section 9.11 Committees
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25
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Section 9.12 Removal
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25
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ARTICLE X. OFFICERS
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26
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Section 10.01 Elected Officers
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26
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Section 10.02 Election and Term of Office
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26
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Section 10.03 Chief Executive Officer; Chief Operating Officer
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26
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Section 10.04 President
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26
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Section 10.05 Vice Presidents
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27
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Section 10.06 Treasurer; Assistant Treasurers
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27
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Section 10.07 Secretary; Assistant Secretaries
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27
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Section 10.08 Removal
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27
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Section 10.09 Vacancies
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28
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ARTICLE XI. MEMBER MEETINGS
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28
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Section 11.01 Meetings
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28
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Section 11.02 Notice of a Meeting
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28
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Section 11.03 Quorum; Voting Requirement
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28
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Section 11.04 Action by Consent of Members
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29
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ii
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ARTICLE XII. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
|
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29
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Section 12.01 Indemnification
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29
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Section 12.02 Liability of Indemnitees
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30
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Section 12.03 Standards of Conduct and Fiduciary Duties
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31
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ARTICLE XIII. TAXES
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31
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Section 13.01 Tax Returns
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31
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Section 13.02 Tax Elections
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31
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Section 13.03 Tax Matters Officer
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32
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ARTICLE XIV. BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
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33
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Section 14.01 Maintenance of Books
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33
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Section 14.02 Reports
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33
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Section 14.03 Bank Accounts
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33
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ARTICLE XV. DISSOLUTION, WINDING-UP, TERMINATION AND CONVERSION
|
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33
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Section 15.01 Dissolution
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33
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Section 15.02 Dissolution, Winding-Up and Termination
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34
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Section 15.03 Deficit Capital Accounts
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35
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Section 15.04 Certificate of Cancellation
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35
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ARTICLE XVI. GENERAL PROVISIONS
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36
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Section 16.01 Offset
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36
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Section 16.02 Notices
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36
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Section 16.03 Entire Agreement; Superseding Effect
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37
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Section 16.04 Effect of Waiver or Consent
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37
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Section 16.05 Amendment or Restatement
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37
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Section 16.06 Binding Effect
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37
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Section 16.07 Governing Law; Severability
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37
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Section 16.08 Further Assurances
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38
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Section 16.09 Waiver of Certain Rights
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38
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Section 16.10 Acknowledgement Regarding Outside Businesses and Opportunities
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38
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Section 16.11 Counterparts
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39
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Section 16.12 Jurisdiction
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39
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Section 16.13 Provisions Regarding Effective Time
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39
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iii
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
OXFORD RESOURCES GP, LLC
A Delaware Limited Liability Company
This
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
(this
“
Agreement
”) of Oxford Resources GP, LLC (the “
Company
”), is made and entered into
as of July 19, 2010, to be effective upon and at the time of the closing of the Partnership IPO (as
defined below) (the “
Effective Time
”), by and among AIM Oxford Holdings, LLC, a Delaware
limited liability company (“
AIM Oxford
”), C&T Coal, Inc., an Ohio corporation (“
C&T
Coal
”) and Jeffrey M. Gutman (the “
Executive
”).
RECITALS
WHEREAS, the Company was originally formed as a Delaware limited liability company by the
filing of a Certificate of Formation (the “
Delaware Certificate
”), dated as of August 7,
2007 (the “
Original Filing Date
”), with the Secretary of State of the State of Delaware
pursuant to the Act;
WHEREAS, effective as of August 7, 2007, AIM Oxford entered into the original Limited
Liability Company Agreement of the Company to provide for the regulation and management of the
Company;
WHEREAS, effective as of August 24, 2007, AIM Oxford and C&T Coal entered into the Amended and
Restated Limited Liability Company Agreement of the Company (the
“First Restated
Agreement
”) to add C&T Coal as a member and to set forth the respective rights, duties and
obligations of the members;
WHEREAS, on the indicated dates AIM Oxford and C&T Coal entered into the amendments to the
First Restated Agreement set forth below (collectively, the “
Amendments
”), in each case to
update Exhibit A to the First Restated Agreement to reflect additional capital contributions to the
Company made by the members:
|
|
•
|
|
First Amendment to the First Restated Agreement, dated March 27, 2008;
|
|
|
|
|
•
|
|
Second Amendment to the First Restated Agreement, dated May 23, 2008;
|
|
|
|
|
•
|
|
Third Amendment to the First Restated Agreement, dated September 26, 2008;
|
|
|
•
|
|
Fourth Amendment to the First Restated Agreement, dated March 31, 2009; and
|
|
|
|
|
•
|
|
Fifth Amendment to the First Restated Agreement, dated September 28, 2009;
|
WHEREAS, upon the closing of the initial public offering (the “
Partnership IPO
”) of
the common units of Oxford Resource Partners, LP (the “
Partnership
”), AIM Oxford and C&T
Coal desire to further amend the First Restated Agreement to admit the Executive as a member of the
Company and establish his right to participate in certain profits, losses and distributions of the
Company as more fully set forth in this Agreement; and
WHEREAS, the parties hereto desire to amend and restate the First Restated Agreement, as
amended by the Amendments, in its entirety effective at the Effective Time and to continue the
existence of the Company on the terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the covenants, conditions and agreements contained herein,
the parties hereto hereby amend and restate in its entirety the First Restated Agreement, as
amended by the Amendments, to be effective as of the Effective Time, as follows:
ARTICLE I.
DEFINITIONS
Section 1.01
Definitions.
(a) As used in this Agreement, the following terms have the respective meanings set forth
below or set forth in the Sections referred to below:
“
Act
” means the Delaware Limited Liability Company Act, as amended and in effect from
time to time.
“
Adjusted Capital Account Deficit
” means, with respect to any Member, the deficit
balance, if any, in such Member’s Capital Account as of the end of the relevant fiscal year, after
giving effect to the following adjustments:
(i) Credit to such Capital Account any amounts which such Member is obligated to restore
pursuant to any provision of this Agreement or pursuant to Treasury Regulation Section
1.704-1(b)(2)(ii)(c) or is deemed to be obligated to restore pursuant to the penultimate sentences
of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
(ii) Debit to such Capital Account the items described in Treasury Regulation Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6).
The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the
provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted
consistently therewith.
2
“
Affiliate
” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, the first Person. For
the purposes of this definition, “control,” when used with respect to any Person, means the power
to direct the management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“
Agreement
” has the meaning given such term in the introductory paragraph, and
includes the same as it may be amended from time to time.
“
AIM Oxford
” has the meaning given such term in the introductory paragraph.
“
Amendments
” has the meaning given such term in the Recitals.
“
Applicable Law
” means (i) any United States federal, state or local law, statute,
rule, regulation, order, writ, injunction, judgment, decree or permit of any Governmental Authority
and (ii) any rule or listing requirement of any applicable National Securities Exchange or listing
requirement of any National Securities Exchange or Commission-recognized trading market on which
securities issued by the Partnership are listed or quoted.
“
Assignee
” means any Person receiving Units as a result of a Transfer in a manner
permitted under this Agreement, but who has not been admitted as a Member and thus has only the
rights set forth in Section 4.03.
“
Assumed Tax Liability
” means, with respect to any Member, the amount that is equal to
the excess, if any, of (i) an amount sufficient to satisfy such Member’s (or, if such Member is a
disregarded entity or partnership for relevant income tax purposes, its direct or indirect owners’)
deemed federal, state and local income tax liability with respect to the cumulative income and gain
allocated to such Member by the Company (giving effect to any prior allocations of losses) for tax
purposes pursuant to Article VIII through the end of the current fiscal quarter over (ii) the
cumulative distributions made to such Member by the Company. For each Member, the Assumed Tax
Liability will be calculated based on a hypothetical combined rate applicable to all Members of
40%;
provided however
, that such rate shall be subject to adjustment by the Board at any time in
its sole discretion.
“
Available Cash
” means, with respect to any Quarter ending prior to a Dissolution
Event,
(i) the sum of all cash and cash equivalents of the Company on hand at the end of such
Quarter,
less
(ii) the amount of any cash reserves that are established by the Board to (A) satisfy general,
administrative and other expenses and debt service requirements, (B) permit the Company to make
capital contributions to the Partnership to maintain its general partner interest in the
Partnership upon the issuance of partnership securities by the Partnership, (C) comply with
Applicable Law or any loan agreement, security agreement, mortgage, debt instrument or other
agreement or obligation to which the Company is a party or by which it is bound or its assets are
subject, (D) provide funds for distributions under Section 8.01 in respect of any one or more of
the next four Quarters (
provided, however
, that disbursements made by the Company or cash
3
reserves established, increased or reduced after the end of such Quarter, but on or before the
date of determination of Available Cash with respect to such Quarter, shall be deemed to have been
made, established, increased or reduced, for purposes of determining Available Cash, within such
Quarter if the Board so determines) or (E) otherwise provide for the proper conduct of the business
of the Company subsequent to such Quarter.
Notwithstanding the foregoing, “Available Cash” with respect to the Quarter in which a
Dissolution Event occurs and any subsequent Quarter shall equal zero.
“
Bankrupt
” or “
Bankruptcy
” means, with respect to any Person, that (i) such
Person (A) makes a general assignment for the benefit of creditors; (B) files a voluntary
bankruptcy petition; (C) becomes the subject of an order for relief or is declared insolvent in any
federal or state bankruptcy or insolvency proceedings; (D) files a petition or answer seeking for
such Person a reorganization, arrangement, composition, readjustment, liquidation, dissolution, or
similar relief under any Applicable Law; (E) files an answer or other pleading admitting or failing
to contest the material allegations of a petition filed against such Person in a proceeding of the
type described in subclauses (A) through (D) of this clause (i); or (F) seeks, consents to, or
acquiesces in the appointment of a trustee, receiver, or liquidator of such Person or of all or any
substantial part of such Person’s properties; or (ii) a proceeding seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any
Applicable Law has been commenced against such Person and 120 Days have expired without dismissal
thereof or with respect to which, without such Person’s consent or acquiescence, a trustee,
receiver, or liquidator of such Person or of all or any substantial part of such Person’s
properties has been appointed and 90 Days have expired without the appointment having been vacated
or stayed, or 90 Days have expired after the date of expiration of a stay if the appointment has
not previously been vacated. The foregoing definition of “
Bankruptcy
” is intended to
replace and shall supersede and replace the definition of “
Bankruptcy
” set forth in the
Act.
“
Board
” has the meaning given such term in Section 9.01.
“
Business Day
” means any day other than a Saturday, a Sunday, or a day when banks in
New York, New York or Columbus, Ohio are authorized or required by Applicable Law to be closed.
“
C&T Coal
” has the meaning given such term in the introductory paragraph.
“
Capital Account
” means, with respect to any Member, the Capital Account maintained
for such Member in accordance with the following provisions:
(i) To each Member’s Capital Account there shall be credited (a) such Member’s Capital
Contributions, if any, (b) such Member’s distributive share of Profits and any items in the nature
of income or gain that are specially allocated pursuant to Section 8.03, and (c) the amount of any
Company liabilities assumed by such Member or that are secured by any property (other than money)
distributed to such Member.
(ii) To each Member’s Capital Account there shall be debited (a) the amount of cash and the
Gross Asset Value of any property (other than money) distributed to such Member pursuant to any
provision of this Agreement, (b) such Member’s distributive share of Losses and
4
any items in the nature of expenses or losses that are specially allocated pursuant to Section
8.03, and (c) the amount of any liabilities of such Member assumed by the Company or that are
secured by any property (other than money) contributed by such Member to the Company.
(iii) In the event all or a portion of a Membership Interest is transferred in accordance with
the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor
to the extent it relates to the Membership Interest so transferred.
(iv) In determining the amount of any liability for purposes of the foregoing clauses (i) and
(ii) of this definition of “
Capital Account
,” there shall be taken into account Section
752(c) of the Code and any other applicable provisions of the Code and Treasury Regulations.
The foregoing provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Treasury Regulations Section 1.704-1(b)
and shall be interpreted and applied in a manner consistent with such Treasury Regulations.
“
Capital Contribution
” means, with respect to any Member, the amount of money and the
net agreed value of any property (other than money) contributed to the Company by such Member. Any
reference in this Agreement to the Capital Contribution of a Member shall include a Capital
Contribution of its predecessors in interest.
“
CCU
” means Charles C. Ungurean.
“
CCU Employment Agreement
” means that certain Employment Agreement by and between the
Company and CCU in effect as of the Effective Time and as thereafter amended and/or restated from
time to time.
“
Certified Public Accountants
” means a firm of independent public accountants selected
from time to time by the Board.
“
Claim
” means any and all judgments, claims, causes of action, demands, lawsuits,
suits, proceedings, Governmental investigations or audits, losses, assessments, fines, penalties,
administrative orders, obligations, costs, expenses, liabilities and damages (whether actual,
consequential or punitive), including interest, penalties, reasonable attorneys’ fees,
disbursements and costs of investigations, deficiencies, levies, duties and imposts.
“
Class A Member
” means a Member that holds Class A Units.
“
Class A Units
” has the meaning given such term in Section 3.01.
“
Class B Member
” means a Member that holds Class B Units.
“
Class B Units
” has the meaning given such term in Section 3.01.
“
Code
” means the Internal Revenue Code of 1986, as amended and in effect from time to
time.
5
“
Commission
” means the Securities and Exchange Commission.
“
Common Units
” has the meaning given such term in the Partnership Agreement.
“
Company
” has the meaning given such term in the introductory paragraph.
“
Conflicts Committee
” means a committee of the Board, appointed as and for the
purposes provided for in Section 9.11(d), composed entirely of one or more directors, each of whom
(i) is not a security holder, officer or employee of the Company, (ii) is not an officer, director
or employee of any Affiliate of the Company, (iii) is not a holder of any ownership interest in the
Partnership Group other than Common Units and (iv) is an Independent Director.
“
Contribution Agreement
” means that certain Contribution and Sale Agreement dated as
of August 24, 2007 by and among the Company, the Partnership, AIM Oxford, C&T Coal, CCU, TTU and
the other parties thereto.
“
Day
” means a calendar day;
provided, however
, that, if any period referred to in this
Agreement shall end on a Day that is not a Business Day, then the expiration of such period shall
be automatically extended until the end of the next succeeding Business Day.
“
Delaware Certificate
” has the meaning given such term in the Recitals.
“
Depreciation
” means, for each fiscal year or other period, an amount equal to the
depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for
such fiscal year or other period, except that if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of such fiscal year or other
period, Depreciation shall be an amount that bears the same ratio to such beginning Gross Asset
Value as the federal income tax depreciation, amortization, or other cost recovery deduction for
such fiscal year or other period bears to such beginning adjusted tax basis;
provided, however
,
that, if the federal income tax depreciation, amortization, or other cost recovery deduction for
such fiscal year or other period is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the Tax Matters Officer.
“
Director
” or “
Directors
” has the meaning given such term in Section 9.02.
“
Dissolution Event
” has the meaning given such term in Section 15.01(a).
“
Effective Time
” has the meaning given such term in the introductory paragraph.
“
Effective Time Exhibit A
” means the
Exhibit A
which is attached hereto, as
modified as of the Effective Time as provided in the footnotes set forth thereon.
“
Encumber
,” “
Encumbering
,” or “
Encumbrance
” means the creation of a
security interest, lien, pledge, mortgage or other encumbrance, whether such encumbrance be
voluntary, involuntary or by operation of Applicable Law.
“
Executive
” has the meaning given such term in the introductory paragraph.
6
“
Executive Employment Agreement
” means that certain Employment Agreement by and
between the Company and the Executive in effect as of the Effective Time and as thereafter amended
and/or restated from time to time.
“
First Restated Agreement
” has the meaning given such term in the Recitals.
“
GAAP
” means United States generally accepted accounting principles.
“
Governmental
” or “
Governmental Authority
” means any federal, state or local
court or governmental or regulatory agency or authority or any arbitration board, tribunal or
mediator having jurisdiction over the Company or its assets or Members.
“
Gross Asset Value
” means, with respect to any asset, the asset’s adjusted basis for
Federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be
the gross fair market value of the asset, as determined by the contributing Member and the Board,
in a manner that is consistent with Section 7701(g) of the Code;
(ii) The Gross Asset Values of all Company assets shall be adjusted to equal their respective
gross fair market values, as determined by the Board, in a manner that is consistent with Section
7701(g) of the Code, as of the following times: (A) the acquisition of an additional Membership
Interest by any new or existing Member in exchange for more than a de minimis Capital Contribution
or for the provision of services; (B) the distribution by the Company to a Member of more than a de
minimis amount of property other than money as consideration for a Membership Interest; and (C) the
liquidation of the Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g);
provided, however
, that adjustments pursuant to subclauses (A) and (B) above shall be made only if
the Tax Matters Officer reasonably determines that such adjustments are necessary or appropriate to
reflect the relative economic interests of the Members in the Company;
(iii) The Gross Asset Value of any Company asset distributed to any Member shall be the gross
fair market value (taking Section 7701(g) of the Code into account) of such asset on the date of
distribution; and
(iv) The Gross Asset Values of all Company assets shall be increased (or decreased) to reflect
any adjustments to the adjusted basis of such assets pursuant to Section 734(b) of the Code or
Section 743(b) of the Code, but only to the extent that such adjustments are taken into account in
determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m) and the
definition of Capital Account herein;
provided, however
, that Gross Asset Values shall not be
adjusted pursuant to this clause (iv) to the extent the Tax Matters Officer determines that an
adjustment pursuant to the foregoing clause (ii) of this definition is necessary or appropriate in
connection with a transaction that would otherwise result in an adjustment pursuant to this clause
(iv).
If the Gross Asset Value of an asset has been determined or adjusted pursuant to the foregoing
clause (i), (ii) or (iv), such Gross Asset Value shall thereafter be adjusted by the
7
Depreciation taken into account with respect to such asset for purposes of computing Profits
and Losses.
“
Group Member
” has the meaning given such term in the Partnership Agreement.
“
Indemnitee
” means (i) any Person who is or was an Affiliate of the Company, (ii) any
Person who is or was a member, partner, officer, director, employee, agent or trustee of the
Company or any Affiliate of the Company and (iii) any Person who is or was serving at the request
of the Company or any Affiliate of the Company as an officer, director, employee, member, partner,
agent, fiduciary or trustee of another Person;
provided, however
, that a Person shall not be an
Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial
services;
provided, further, however,
that, solely for purposes of clause (i) of this definition,
the definition of Affiliate shall not include any member of the Partnership Group.
“
Independent Director
” means a Director who meets the independence standards required
of directors who serve on an audit committee of a board of directors established by the Securities
Exchange Act and the rules and regulations of the Commission thereunder and, if applicable, by the
principal National Securities Exchange on which the securities of the Partnership are listed.
“
Investors’ Rights Agreement
” means that certain Investors’ Rights Agreement dated as
of August 24, 2007 among the Partnership, the Company, AIM Oxford, C&T Coal, CCU and TTU.
“
Limited Partner
” and “
Limited Partners
” have the meanings given such terms in
the Partnership Agreement.
“
Majority Interest
” means greater than 50% of the outstanding Class A Units.
“
Member
” means any Person executing this Agreement as of the date of this Agreement as
a member of the Company or hereafter admitted to the Company as a member as provided in this
Agreement, but such term does not include any Person who has ceased to be a member of the Company.
“
Membership Interest
” means, with respect to any Member and constituting that Member’s
limited liability company interest as defined in the Act, (i) that Member’s status as a Member and
as a holder of the applicable class of Units; (ii) that Member’s share of the income, gain, loss,
deduction and credits of, and the right to receive distributions from, the Company as a holder of
the applicable class of Units; (iii) all other rights, benefits and privileges enjoyed by that
Member (under the Act, this Agreement or otherwise) in its capacity as a Member holding the
applicable class of Units; and (iv) all obligations, duties and liabilities imposed on that Member
(under the Act, this Agreement or otherwise) in its capacity as a Member holding the applicable
class of Units, including any obligations to make Capital Contributions.
“
National Securities Exchange
” means an exchange registered with the Commission under
Section 6(a) of the Securities Exchange Act of 1934, as amended, supplemented or restated from time
to time, and any successor thereto.
“
Notices
” has the meaning given such term in Section 16.02.
8
“
Operating Company
” means Oxford Mining Company, LLC, an Ohio limited liability
company.
“
Original Filing Date
” has the meaning given such term in the Recitals.
“
Ownership Percentage
” means, with respect to a Member, the percentage ownership of
the Company of such Member equal to a percentage obtained by dividing (i) the number of Units owned
by such Member by (ii) the total number of outstanding Units owned by all Members.
“
Partner
” has the meaning given such term in the Partnership Agreement.
“
Partnership
” has the meaning given such term in the Recitals.
“
Partnership Agreement
” means the Third Amended and Restated Agreement of Limited
Partnership of the Partnership in effect as of the Effective Time and as thereafter amended and/or
restated from time, or any successor agreement thereto.
“
Partnership Group
” has the meaning given such term in the Partnership Agreement.
“
Partnership IPO
” has the meaning given such term in the Recitals.
“
Person
” means any individual, firm, partnership, corporation, limited liability
company, association, joint-stock company, unincorporated organization, joint venture, trust,
court, governmental agency or political subdivision thereof, or other entity.
“
Profits
” and “
Losses
” means, for each fiscal year or other period, an amount
equal to the Company’s taxable income or loss for such fiscal year or period, determined in
accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss, or
deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be
included in taxable income or loss), with the following adjustments:
(i) Any income of the Company that is exempt from federal income tax and not otherwise taken
into account in computing Profits or Losses pursuant to this definition shall be added to such
taxable income or loss;
(ii) Any expenditures of the Company described in Section 705(a)(2)(B) of the Code and not
otherwise taken into account in computing Profits or Losses pursuant to this definition shall be
subtracted from such taxable income or loss;
(iii) In the event the Gross Asset Value of any Company asset is adjusted pursuant to clause
(ii) or (iv) of the definition of Gross Asset Value herein, the amount of such adjustment shall be
taken into account as gain or loss from the disposition of such asset for purposes of computing
Profits or Losses;
(iv) Gain or loss resulting from any disposition of property (other than money) with respect
to which gain or loss is recognized for federal income tax purposes shall be computed by reference
to the Gross Asset Value of the property disposed of notwithstanding that the adjusted tax basis of
such property differs from its Gross Asset Value;
9
(v) In lieu of the depreciation, amortization and other cost recovery deductions taken into
account in computing such taxable income or loss, there shall be taken into account Depreciation
for such fiscal year or other period, computed in accordance with the definition of Depreciation
herein; and
(vi) Notwithstanding any other provision of this definition of “
Profits
” and
“
Losses
,” any items which are specially allocated pursuant to Section 8.03(d) and Section
8.03(e) shall not be taken into account in computing Profits or Losses.
“
Proper Officer
” or “
Proper Officers
” means those officers authorized by the
Board to act on behalf of the Company.
“
Quarter
” means, unless the context requires otherwise, a fiscal quarter of the
Company.
“
Subsidiary
” means, with respect to any Person, (i) a corporation of which more than
50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to
vote in the election of directors or other governing body of such corporation is owned, directly or
indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such
Person or a combination thereof, (ii) a partnership (whether general or limited) in which such
Person or a Subsidiary of such Person is, at the date of determination, a general or limited
partner of such partnership, but only if more than 50% of the partnership interests of such
partnership (considering all of the partnership interests of the partnership as a single class) is
owned, directly or indirectly, at the date of determination, by such Person, by one or more
Subsidiaries of such Person, or a combination thereof, or (iii) any other Person (other than a
corporation or a partnership) in which such Person, one or more Subsidiaries of such Person, or a
combination thereof, directly or indirectly, at the date of determination, has (A) at least a
majority ownership interest or (B) the power to elect or direct the election of a majority of the
directors or other governing body of such Person.
“
Tax Matters Officer
” has the meaning given such term in Section 13.03(a).
“
Term
” has the meaning given such term in Section 2.06.
“
Transfer
” (and related words) means, with respect to any Units, a sale, assignment,
transfer, conveyance, gift, exchange or other transfer thereof, whether such transfer be voluntary,
involuntary or by operation of Applicable Law.
“
Transferee
” means a person who has received Units by means of a Transfer.
“
Transferor
” has the meaning given such term in Section 4.02(b)(ii).
“
Treasury Regulations
” means the regulations (including temporary regulations)
promulgated by the United States Department of the Treasury pursuant to and in respect of
provisions of the Code. All references herein to sections of the Treasury Regulations shall
include any corresponding provision or provisions of succeeding, similar or substitute, temporary
or final Treasury Regulations.
“
TTU
” means Thomas T. Ungurean.
10
“
TTU Employment Agreement
” means that certain Employment Agreement by and between the
Company and TTU in effect as of the Effective Time and as thereafter amended and/or restated from
time to time.
“
Units
” has the meaning given such term in Section 3.01.
“
Withdraw
,” “
Withdrawing
” or “
Withdrawal
” means the withdrawal,
resignation or retirement of a Member from the Company as a Member. Such terms shall not include
any Transfers of Membership Interests (which are governed by Article IV), even though the Member
making a Transfer may cease to be a Member as a result of such Transfer.
Section 1.02
Construction.
Whenever the context requires, (a) the gender of all words used in this Agreement includes the
masculine, feminine and neuter, (b) the singular forms of nouns, pronouns and verbs includes the
plural and vice versa, (c) all references to Articles and Sections refer to articles and sections
in this Agreement, each of which is made a part for all purposes, and (d) the term “include” or
“includes” means includes without limitation, and “including” means including without limitation.
ARTICLE II.
ORGANIZATION
Section 2.01
Formation.
AIM Oxford formed the Company as a Delaware limited liability company by the filing of the
Delaware Certificate, dated as of the Original Filing Date, with the Secretary of State of the
State of Delaware pursuant to the Act.
Section 2.02
Name.
The name of the Company is “Oxford Resources GP, LLC” and all business of the Company must be
conducted in that name or such other names that comply with Applicable Law as the Board may select.
Section 2.03
Registered Office; Registered Agent; Principal Office.
The name of the Company’s registered agent for service of process is The Corporation Trust
Company, and the address of the Company’s registered office in the State of Delaware is 1209 Orange
Street, Wilmington, Delaware 19801. The principal place of business of the Company shall be
located at 41 South High Street, Suite 3450, Columbus, Ohio 43215-6150. Subject to Applicable Law,
the Board may change the Company’s registered agent or the location of the Company’s registered
office or principal place of business as the Board may from time to time determine.
Section 2.04
Purposes.
(a) The purposes of the Company shall be to (i) act as the general partner of
11
the Partnership (and acquire, hold and dispose of partnership interests and related rights in
the Partnership) and only undertake activities that are ancillary or related thereto, (ii) provide
services to the Partnership and the Operating Company and (iii) in connection with acting in such
capacity and providing such services, carry on any lawful business or activity permitted by the
Act.
(b) Subject to the limitations expressly set forth in this Agreement, the Company shall have
the power and authority to do any and all acts and things deemed necessary or desirable by the
Board to further the Company’s purposes and carry on its business, including the following:
(i) acting as the general partner of the Partnership;
(ii) entering into any kind of activity and performing contracts of any kind
necessary or desirable for the accomplishment of its business (including the
business of the Partnership and the Operating Company);
(iii) acquiring any property, real or personal, in fee or under lease or
license, or any rights therein or appurtenant thereto, necessary or desirable for
the accomplishment of its purposes;
(iv) borrowing money and issuing evidences of indebtedness and securing any
such indebtedness by mortgage or pledge of, or other lien on, the assets of the
Company;
(v) entering into any such instruments and agreements as the Board may deem
necessary or desirable for the ownership, management, operation, leasing and sale of
the Company’s property; and
(vi) negotiating and concluding agreements for the sale, exchange or other
disposition of all or substantially all of the properties of the Company, or for the
refinancing of any loan or payment obtained by the Company.
The Members hereby specifically consent to and approve the execution and delivery by the
Proper Officers on behalf of the Company of all loan agreements, notes, security agreements or
other documents or instruments, if any, as required by any lender providing funds to the Company
and ancillary documents contemplated thereby.
Section 2.05
Foreign Qualification.
Prior to the Company’s conducting business in any jurisdiction other than the State of
Delaware, the Proper Officers shall cause the Company to comply, to the extent procedures are
available and those matters are reasonably within the control of such officers, with all
requirements necessary to qualify the Company as a foreign limited liability company in that
jurisdiction. At the request of the Proper Officers, the Members shall execute, acknowledge, swear
to, and deliver all certificates and other instruments conforming with this Agreement that are
necessary or appropriate to qualify, continue, and, if applicable, terminate the Company as a
12
foreign limited liability company in all such jurisdictions in which the Company may conduct
business or in which it has ceased to conduct business.
Section 2.06
Term.
The period of existence of the Company (the “
Term
”) commenced on the Original Filing
Date and shall end at such time as a certificate of cancellation is filed with the Secretary of
State of the State of Delaware in accordance with Section 15.04.
Section 2.07
No State Law Partnership.
The Members intend that the Company not be a partnership (including a limited partnership) or
joint venture, and that no Member be a partner or joint venturer of any other Member, for any
purposes other than federal and state income tax purposes, and this Agreement shall not be
construed to suggest otherwise.
ARTICLE III.
MEMBERSHIP INTERESTS; UNITS
Section 3.01
Membership Interests; Additional Members.
(a) All Membership Interests in the Company shall be represented by units (“
Units
”),
which shall include “
Class A Units
” and “
Class B Units
.” The Effective Time
Exhibit A reflects the Members’ ownership of the Units as of the Effective Time. Effective as of
the Effective Time, the Executive is hereby admitted as a Member and shall own the number of Class
B Units set forth opposite his name on the Effective Time Exhibit A, subject to the vesting and
forfeiture provisions set forth in
Exhibit B
.
Exhibit B
reflects the additional
terms and conditions of this Agreement that are applicable to the Class A Units and the Class B
Units, as the case may be. Additional Persons may be admitted to the Company as Members, and the
Company may issue Units to such Persons, on such terms and conditions as the Board determines at
the time of admission. The terms of admission or issuance must specify the number and class of
Units to be issued to a new Member and the consideration for such issuance and may provide for the
creation of different classes or groups of Members having such rights, powers, and duties as the
Board shall determine. Upon the recommendation of the Board, and subject to the approval of
Members holding a Majority Interest, there may be created and the Board may reflect in an amendment
to this Agreement the creation of any new class or group of Units with such rights, powers, and
duties as the Board shall determine. Any such admission shall be effective only after such new
Member has executed and delivered to the Members and the Company an instrument containing the
notice address of the new Member and the new Member’s agreement to be bound by this Agreement.
(b) Each Class A Member shall have the right to one vote for each Class A Unit held by such
Member as to all matters submitted to a vote of the Members.
(c) Except as specifically and unconditionally required by Applicable Law, pursuant to Section
18-302 of the Act, the Members agree that the Class B Units shall have no voting rights and the
Class B Members shall have no right to vote the Class B Units.
13
(d) The Members intend that each Class B Unit shall constitute a “profits interest” for U.S.
federal income tax purposes as of the date of issuance of such Class B Unit, within the meaning of
Rev. Proc. 93-27, 1993-2 C.B. 343 and Rev. Proc. 2001-43, 2001-2 C.B. 191.
Section 3.02
Liability; Rights, Duties and Obligations
(a) Except as required by the Act, no Member shall be liable for the debts, obligations or
liabilities of the Company solely by reason of being a member of the Company.
(b) The Company and the Members agree that the rights, duties and obligations of the Members
in their capacity as members of the Company are only as set forth in this Agreement and, except to
the extent this Agreement provides otherwise, under the Act. Furthermore, to the fullest extent
permitted by law, the Members agree that the existence of any rights of a Member, or the exercise
or forbearance from exercise of any such rights, shall not create any duties or obligations of the
Members in their capacities as members of the Company, nor shall such rights be construed to
enlarge or otherwise alter in any manner the duties and obligations of the Members.
(c) In addition to the powers and authorities expressly conferred on the Board by this
Agreement, the Board may exercise all such powers of the Company and do all such acts and things as
are not restricted by this Agreement, the Act or Applicable Law.
Section 3.03
Withdrawal.
A Member does not have the right or power to Withdraw.
ARTICLE IV.
TRANSFER OF UNITS
Section 4.01
General.
A Member may not Transfer all or any portion of its Units unless such Transfer complies with
(a) the provisions of this Article IV and (b) the applicable terms and conditions of
Exhibit
B
(which terms and conditions are incorporated into this Article IV by reference for all
purposes).
Section 4.02
Requirements Applicable to All Transfers and Admissions.
In addition to the other terms and conditions of this Article IV, any Transfer of Units and
any admission of a Transferee as a Member shall be subject to the following requirements, and such
Transfer (and admission, if applicable) shall not be effective unless such requirements are
complied with;
provided, however
, that the Board, in its sole and absolute discretion, may waive
any of the following requirements (other than the requirements of Section 4.02(b)):
(a) [Intentionally Omitted];
14
(b)
Transfer Documents
. The following documents must be delivered to the Board and
must be satisfactory, in form and substance, to the Board:
(i)
Transfer Instrument
. A copy of the instrument pursuant to which
the Transfer is effected.
(ii)
Ratification of this Agreement
. With respect to any Transfer, an
instrument, executed by the Member making the Transfer (a “
Transferor
”) and
its Transferee, containing the following information and agreements, to the extent
they are not contained in the instrument described in Section 4.02(b)(i): (A) the
notice address of the Transferee; (B) the total number and the class of Units owned
by the Transferee and the Transferor after the Transfer (which together must be the
same as the total number and the class of Units owned by the Transferor before the
Transfer); (C) the Transferee’s agreement to be bound by this Agreement; and (D)
representations and warranties by the Transferor and its Transferee (1) that the
Transfer and admission is being made in accordance with Applicable Laws, and (2)
that the matters set forth in Section 4.02(b)(i) and this Section 4.02(b)(ii) are
true and correct.
(iii)
Opinions
. With respect to any Transfer, such opinions of counsel
regarding tax and securities law matters as the Board, in its reasonable discretion,
may require.
(c)
Payment of Expenses
. The Transferor and its Transferee shall pay, or reimburse
the Company for, all reasonable costs and expenses incurred by the Company in connection with the
Transfer and the admission of the Transferee as a Member, including the legal fees, if any,
incurred in connection with the legal opinions referred to in Section 4.02(b)(iii); and
(d)
No Release
. No Transfer of Units shall effect a release of the Transferor from
any liabilities of the Transferor to the Company or the other Members arising from events occurring
prior to the Transfer.
Section 4.03
Assignees.
Unless admitted as a Member, no Transferee, whether by a voluntary Transfer, by operation of
law or otherwise, shall have any rights hereunder, other than the rights of an Assignee as provided
in this Section 4.03. An Assignee shall be entitled to all the rights of an assignee of a Member’s
Membership Interest under the Act, including the right to receive distributions from the Company
and the share of Profits and Losses attributable to the Units Transferred to such Assignee, and the
right to Transfer the Units as provided in this Article IV, but shall not be deemed to be a holder
of Units for any other purpose under this Agreement and shall not be entitled to vote or consent
with respect to such Units on any matter presented to the Members for approval (such power and
right to so vote and consent, if any, remaining with the Transferor). In the event any Assignee
desires to further Transfer any Units, such Assignee shall be subject to all the provisions of this
Article IV to the same extent and in the same manner as any Member desiring to make a Transfer of
Units.
15
Section 4.04
Restrictions on Hypothecation.
A Member may pledge its Class A Units to a third party lender with the consent of the Board,
which will be provided within ten Business Days from such time as the Board has received a written
request therefor so long as the Member requesting the consent has provided to the Company
documentation satisfactory to the Board that the proposed lender has agreed to notify the Company
of any default that may result in the lender becoming the owner of, or selling or otherwise
disposing of, such Class A Units and has further agreed to allow the Company to purchase the Class
A Units for an amount not to exceed the amount equal to the lesser of (a) the fair market value of
the pledged Class A Units and (b) the indebtedness secured by such lender’s lien on the pledged
Class A Units. In the event the Company exercises its right hereunder to purchase the Class A
Units from the lender upon a default by the Member, such member shall lose any right it may have to
designate directors, if applicable. A Member may not pledge its Class B Units. Notwithstanding
the foregoing, the Members are permitted to pledge their Units to the lenders under any credit
facilities of the Partnership and any renewals, refinancings or replacements thereof.
Section 4.05
[Intentionally Omitted].
Section 4.06
General Provisions Relating to Transfer of Units.
(a) No Member may withdraw from the Company, other than as a result of a Transfer of all of
such Member’s Units in accordance with this Article IV with respect to which the Transferee becomes
a Member in place of the Transferor. Except as otherwise provided in this Agreement, any Member
who Transfers all of the Units held by such Member in a Transfer permitted pursuant to this Article
IV where the Transferee (i) is the Company or (ii) is admitted as a Member shall automatically
cease to be a Member as of the date of consummation of such Transfer.
(b) All distributions and allocations with respect to which the record date is before the
effective date of any Transfer shall be made to the Transferor, and all distributions and
allocations thereafter shall be made to the Transferee.
(c) In addition to any other restrictions on Transfer contained herein, in no event may any
Transfer or assignment of Units by any Member be made (i) to any Person who lacks the legal right,
power or capacity to own Units or (ii) in violation of Applicable Law.
ARTICLE V.
[INTENTIONALLY OMITTED]
ARTICLE VI.
ISSUANCE OF UNITS; CERTIFICATES
Section 6.01
Issuance of Additional Units.
(a) In order to raise capital or acquire assets, to redeem or retire any Company debt or for
any other proper purpose consistent with the purposes of the Company, the Company may from time to
time issue Units to Members or any other Persons (and, in connection with the
16
issuance thereof, may accept additional contributions from such Persons and admit any such
Persons to the Company as Members), in each case without the approval of the Members. There shall
be no limit on the number of Units that may be so issued. The Board shall have full and absolute
discretion in determining in good faith the consideration therefor and the other terms and
conditions with respect thereto. In connection with any such issuance, the Board shall do all
other things it shall determine are necessary or appropriate, including the filing of any
certificates or other documents with any federal, state or other governmental agency. The
admission of any Person as a Member upon the issuance of Units pursuant to this Section 6.01 shall
be effective only after the new Member has executed and delivered to the Board a document, in form
and substance satisfactory to the Board, that (i) sets forth the notice address of such new Member
and (ii) includes an agreement on the part of such new Member to be bound by the provisions of this
Agreement. The Board shall have the power to amend this Agreement as necessary to reflect the
issuance of Units, and such an amendment need be executed only by a Proper Officer.
Section 6.02
Certificates.
Every holder of Units shall be entitled to have a certificate
evidencing the number of Units owned by such holder signed by or in the name of the Company by the
President;
provided, however,
that the Units may be certificated or uncertificated as provided in
the Act.
(a) In case any Person who has signed a certificate shall have ceased to be the President
before such certificate is issued, such certificate may be issued by the Company with the same
effect as if such Person continued to serve in such capacity at the date of issuance.
(b) The Company may issue a new certificate, or deliver other evidence of the issuance of
uncertificated Units, in place of any certificate theretofore issued by it which is alleged to have
been lost, stolen or destroyed upon the making of an affidavit of that fact by the Person claiming
the certificate to be lost, stolen or destroyed. When authorizing the issuance of a new
certificate or certificates, the Board may, in its discretion and as a condition precedent to the
issuance thereof, require that the owner of such lost, stolen or destroyed certificate or
certificates, or its legal representative, give the Company a bond sufficient to indemnify the
Company against any claim that may be made against the Company on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new certificate.
(c) Each certificate evidencing Units shall bear a legend to the following effect:
THESE
SECURITIES ARE SUBJECT TO THE TERMS, CONDITIONS AND RESTRICTIONS ON
TRANSFER SET FORTH IN (A) THE COMPANY’S LIMITED LIABILITY
COMPANY AGREEMENT, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, AND (B) THE
INVESTORS’ RIGHTS AGREEMENT, DATED AUGUST 24, 2007, AS THE SAME
MAY BE AMENDED FROM TIME TO TIME. A COPY OF EACH SUCH AGREEMENT WILL
BE FURNISHED
TO THE RECORD HOLDER OF THE UNITS EVIDENCED BY THIS CERTIFICATE
WITHOUT
CHARGE UPON
17
WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
Section 6.03
Transfers.
Units shall be Transferable in the manner prescribed by law and in accordance with and subject
to the provisions of Article IV. Transfers of Units shall be made on the books of the Company only
by the Person named in the certificate or other evidence of the issuance of uncertificated Units or
by its attorney lawfully constituted in writing and upon the surrender of the certificate therefor
(if any), which shall be canceled before a new certificate shall be issued or other evidence of the
issuance of uncertificated Units shall be delivered.
Section 6.04
Record Holders.
Except as otherwise required by Applicable Law, the Company shall be entitled to recognize the
exclusive right of the Person registered on its books as the owner of Units to receive
distributions in respect of such Units and to vote as the owner thereof, and shall not be bound to
recognize any equitable or other claim to or interest in such Units on the part of any other
Person, whether or not the Company shall have notice thereof.
ARTICLE VII.
CAPITAL CONTRIBUTIONS
Section 7.01
Prior Capital Contributions.
The parties hereto agree that, as of the Effective Time, the respective capital contributions
of the Members with respect to their Class A Units, if any, and the number of Units owned by each
Member are as set forth on
Exhibit A
. As of the Effective time, the Members have not made
any capital contributions with respect to any Class B Units.
Section 7.02
Additional Contributions.
No Member shall be obligated to make any additional capital contributions to the Company.
Section 7.03
Loans.
If the Company does not have sufficient cash to pay its obligations, any one or more of the
Members that may agree to do so with the consent of the Board may advance all or part of the needed
funds to or on behalf of the Company. An advance described in this Section 7.03 shall constitute a
loan from the Member to the Company, shall bear interest at a lawful rate determined by the Board
from the date of the advance until the date of repayment, and shall not be a Capital Contribution.
Section 7.04
Return of Contributions.
Except as expressly provided in this Agreement or by Applicable Law, no Member is entitled to
the return of any part of its Capital Contributions or to be paid interest in respect of
18
either its Capital Account or its Capital Contributions. An unrepaid Capital Contribution is
not a liability of the Company or of any Member. A Member is not required to contribute or to lend
any cash or property to the Company to enable the Company to return any Member’s Capital
Contributions.
Section 7.05
Capital Accounts.
An individual Capital Account shall be established and maintained for each Member. A Member
that has more than one class or series of Units shall have a single Capital Account that reflects
all such classes or series of Units, regardless of the classes or series of Units owned by such
Member and regardless of the time or manner in which such Units were acquired. Upon the Transfer
of all or a portion of a Membership Interest, the Capital Account of the Transferor that is
attributable to such Membership Interest shall carry over to the Assignee in accordance with the
provisions of Treasury Regulation Section 1.704-1(b)(2)(iv)(l).
Section 7.06
Effect of Transfer of a Unit.
In the event that any Unit is Transferred in accordance with the terms of this Agreement, the
Transferee shall succeed to the Capital Account of the Transferor to the extent such Capital
Account relates to the transferred Unit.
Section 7.07
Compliance with Certain Tax Provisions.
The foregoing provisions of this Article VII relating to the maintenance of Capital Accounts
are intended to comply with Treasury Regulations Section 1.704-1(b) and shall be interpreted and
applied in a manner consistent with such Treasury Regulations.
ARTICLE VIII.
DISTRIBUTIONS AND ALLOCATIONS
Section 8.01
Distributions.
(a) Generally, except as otherwise provided in Section 8.02, within 50 days following the end
of each Quarter, an amount equal to 100% of Available Cash with respect to such Quarter shall be
distributed in accordance with this Article VIII to all Members simultaneously, pro rata in
accordance with each Member’s respective Ownership Percentage (at the time the amounts of such
distributions are determined).
(b)
Tax Distributions and Definitions
. Notwithstanding Section 8.01(a), the Company
will make quarterly tax distributions, to the extent that sufficient funds are available, to each
Member in accordance with this Section 8.01(b). Not later than ten Business Days prior to March
15
th
, June 15
th
, September 15
th
and December 15
th
of
each calendar year, the Company will make a cash distribution to each Member, in an amount equal to
such Member’s Assumed Tax Liability;
provided, however
, that, if the Board determines that the
Company does not have sufficient funds to make the foregoing payments in full, the amount that is
available will be distributed to the Members in the same proportion as if the full amount were
available. Any distribution made to a Member pursuant to this Section 8.01(b) shall, for purposes
of applying Section 8.01(a) and Section 15.02(a)(iv)(B), be treated as having been made pursuant to
Section
19
8.01(a) or Section 15.02(a)(iv)(B), as applicable, and to the extent distributions to a Member
pursuant to this Section 8.01(b) cause a Member to receive distributions in excess of what such
Member would have otherwise received pursuant to Section 8.01(a), such excess will be treated as an
advance of, and shall reduce, the next distribution(s) that such Member would otherwise be entitled
to receive pursuant to Section 8.01(a) or, if necessary, Section 15.02(a)(iv)(B).
Section 8.02
Distributions on Dissolution and Winding Up.
Upon the dissolution and winding up
of the Company, after adjusting the Capital Accounts for all distributions made under Section 8.01
for any period immediately preceding the dissolution and winding up of the Company and all
allocations under this Article VIII, all available proceeds distributable to the Members as
determined under Section 15.02 shall be distributed to the Members in amounts equal to the Members’
positive Capital Account balances.
Section 8.03
Allocations
Subject to the allocation rules of Sections 8.03(d) and 8.03(e),
Profits and Losses of the Company for any fiscal year shall be allocated as follows:
(a) Profits for any fiscal year shall be allocated in the following order of priority:
(i) First, to all Members, in proportion to the deficit balances (if any) in
their Capital Accounts, in an amount necessary to eliminate any deficits in the
Members’ Capital Accounts and restore such Capital Account balances to zero;
(ii) Second, to the Members in proportion to the Losses allocated to them
pursuant to Section 8.03(b)(ii), until the Profits allocated pursuant to this
Section 8.03(a)(ii) equal the Losses allocated pursuant to Section 8.03(b)(ii);
(iii) Third, to the Members, until each Member has been allocated an amount
equal to the amount distributed to such Member pursuant to Section 8.01 in the
current and in all previous fiscal years in excess of amounts previously allocated
to such Members pursuant to this Section 8.03(a)(iii), in proportion to the
aggregate maximum amount that could be so distributed to each such Member; and
(iv) Thereafter, to the Members in proportion to their respective Ownership
Percentages.
(b) Losses for any fiscal year shall be allocated in the following order of priority:
(i) First, to the Members in proportion to their respective Ownership
Percentages until the Capital Account balance of any of the Members has been reduced
to zero;
(ii) Second, to the Members that have remaining positive Capital Account
balances in proportion to their Capital Account balances, until the Capital Account
balances of all of the Members have been reduced to zero; and
20
(iii) Thereafter, to the Members in proportion to their respective Ownership
Percentages.
(c) [Intentionally Omitted].
(d) The following special allocations shall be made in the following order:
(i)
Qualified Income Offset
. In the event any Member unexpectedly
receives any adjustments, allocations, or distributions described in Treasury
Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6), items of Company income and gain shall be specially
allocated to each such Member in an amount and manner sufficient to restore, to the
extent required by the Treasury Regulations, the Adjusted Capital Account Deficit of
such Member as quickly as possible,
provided
, that an allocation pursuant to this
Section 8.03(d)(i) shall be made only if and to the extent that such Member would
have an Adjusted Capital Account Deficit after all other allocations provided for in
this Article VIII have been tentatively made as if this Section 8.03(d)(i) was not
in this Agreement.
(ii)
Gross Income Allocation
. In the event any Member has a deficit
Capital Account at the end of any Company fiscal year which is in excess of the sum
of (x) the amount such Member is obligated to restore pursuant to any provision of
this Agreement and (y) the amount such Member is deemed to be obligated to restore
pursuant to the penultimate sentence of Treasury Regulations Sections 1.704-2(g)(1)
and 1.704-2(i)(5), each such Member shall be specially allocated items of Company
income and gain in the amount of such excess as quickly as possible,
provided
, that
an allocation pursuant to this Section 8.03(d)(ii) shall be made only if and to the
extent that such Member would have a deficit Capital Account balance in excess of
such sum after all other allocations provided for in this Article VIII have been
made as if Section 8.03(d)(i) and this Section 8.03(d)(ii) were not in this
Agreement.
(iii)
Section 754 Adjustments
. To the extent an adjustment of the
adjusted tax basis of any Company asset pursuant to Section 734(b) of the Code or
Section 743(b) of the Code is required, pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the
amount of such adjustment to the Capital Accounts shall be treated as an item of
gain (if the adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis) and such gain or loss shall be specially allocated to the
Members in a manner consistent with the manner in which their Capital Accounts are
required to be adjusted pursuant to such section of the Treasury Regulations.
(e) In accordance with Section 704(c) of the Code and the Treasury Regulations thereunder,
income, gain, loss, and deduction with respect to any property contributed to the capital of the
Company shall, solely for tax purposes, be allocated among the Members to take account of any
variation between the adjusted basis of such property to the
21
Company for federal income tax purposes and its initial Gross Asset Value (computed in
accordance with the definition of same under this Agreement). In the event the Gross Asset Value
of any Company asset is adjusted pursuant to subparagraph (ii) of the definition of Gross Asset
Value, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall
take account of any variation between the adjusted basis of such asset for federal income tax
purposes and its Gross Asset Value in the same manner as under Section 704(c) of the Code and the
Treasury Regulations thereunder. Any elections or other decisions relating to such allocations
shall be made by the Tax Matters Officer in any manner that reasonably reflects the purpose and
intention of this Agreement,
provided
, that the Company shall use the remedial allocation method
set forth in Treasury Regulations Section 1.704-3(d). Allocations pursuant to this Section 8.03(e)
are solely for purposes of federal, state, and local taxes and shall not affect, or in any way be
taken into account in computing, any Member’s Capital Account or share of Profits, Losses, other
items, or distributions pursuant to any provision of this Agreement.
Section 8.04
Varying Interests.
All items of income, gain, loss, deduction or credit to be allocated, and all distributions to
be made, in each case pursuant to this Article VIII, shall be so allocated or made, as the case may
be, to the Persons shown on the records of the Company to have been Members as of the last calendar
day of the period for which the allocation or distribution is to be made. Notwithstanding the
foregoing, if during any taxable year there is a change in any Member’s Ownership Percentage, the
Members agree that their allocable shares of such items for the taxable year shall be determined by
any method determined by the Board to be permissible under Section 706 of the Code and the related
Treasury Regulations to take account of the Members’ varying Ownership Percentages.
Section 8.05
Withheld Taxes.
All amounts withheld pursuant to the Code or any provision of any other federal, state or
local tax law with respect to any payment, distribution or allocation to the Company or the Members
shall be treated as amounts distributed to the Members pursuant to this Article VIII for all
purposes of this Agreement. The Board is authorized to withhold from distributions, or with
respect to allocations, to the Members and to pay over to any federal, state or local government
any amounts required to be so withheld pursuant to the Code or any provision of any other federal,
state or local law and shall allocate such amounts to those Members with respect to which such
amounts were withheld.
Section 8.06
Limitations on Distributions.
Notwithstanding any provision to the contrary contained in this Agreement, the Company shall
not make a distribution to any Member on account of its interest in the Company if such
distribution would violate Section 18-607 of the Act or other Applicable Law.
22
ARTICLE IX.
MANAGEMENT
Section 9.01
Management by Board of Directors and Executive Officers.
The business and affairs of the Company shall be fully vested in, and managed by, a Board of
Directors (the “
Board
”) and any executive officers elected pursuant to this Article IX.
The Directors and executive officers shall collectively constitute “managers” of the Company within
the meaning of the Act. Except as otherwise specifically provided in this Agreement, the authority
and functions of the Board, on the one hand, and the executive officers, on the other hand, shall
be identical to the authority and functions of the board of directors and officers, respectively,
of a corporation organized under the General Corporation Law of the State of Delaware. The
executive officers shall be vested with such powers and duties as are set forth in this Article IX
and as are specified by the Board. Accordingly, except as otherwise specifically provided in this
Agreement, the business and affairs of the Company shall be managed under the direction of the
Board, and the day-to-day activities of the Company shall be conducted on the Company’s behalf by
the executive officers, who shall be agents of the Company. The Members in their capacity as
Members shall not have any power or authority to manage the business or affairs of the Company or
to bind the Company or enter into agreements on behalf of the Company.
Section 9.02
Number; Qualification; Tenure.
The number of directors constituting the Board shall be between three and nine (each a
“
Director
” and, collectively, the “
Directors
”), unless otherwise fixed from time to
time pursuant to a resolution adopted by Members holding a Majority Interest. A Director need not
be a Member. The Directors shall be elected annually by a plurality vote of the Class A Members
and each such Director shall hold office until his successor shall have been elected and qualified,
or until the earlier death, resignation or removal of such Director.
As of the Effective Time, the Board shall consist of six members, and shall include Brian D.
Barlow, Matthew P. Carbone, Peter B. Lilly, George E. McCown, Gerald A. Tywoniuk and Charles C.
Ungurean.
Section 9.03
Chairman of the Board.
The Board shall have a Chairman of the Board who shall be chosen from among the Directors.
The Chairman of the Board shall be elected annually by a plurality vote of the Class A Members and
shall hold office as Chairman of the Board until his successor shall have been elected and
qualified, or until his earlier death, resignation or removal. The Chairman of the Board shall
preside at all meetings of the Members and the Board. The Chairman of the Board shall be
responsible for the general oversight of the affairs of the Company and shall perform all duties
incidental to such position which may be required by law and all such other duties as are properly
required of him by the Board. He shall make reports to the Board and the Members and shall see
that all orders and resolutions of the Board and of any committee thereof are carried into effect.
The Directors also may elect a Vice Chairman to act in the place of the Chairman of the Board upon
his absence or inability to act.
23
As of the Effective Time, the Chairman of the Board shall be George E. McCown.
Section 9.04
Regular Meetings.
The Board shall meet at least quarterly, and a regular meeting of the Board shall be held
without notice immediately after, and at the same place as, the annual meeting of the Members
referred to in Section 11.01. The Board may, by resolution, provide the time and place for the
holding of additional regular meetings without other notice than such resolution.
Section 9.05
Special Meetings.
A special meeting of the Board may be called at any time at the request of any Director.
Section 9.06
Notice.
Except as provided in Section 9.04, written notice of all regular meetings of the Board must
be given to all Directors at least 10 Days prior to the regular meeting of the Board and one
Business Day prior to any special meeting of the Board. All notices and other communications to be
given to Directors shall be sufficiently given for all purposes hereunder if in writing and
delivered by hand, courier or overnight delivery service or three Days after being mailed by
certified or registered mail, return receipt requested, with appropriate postage prepaid, delivered
by electronic mail or when received in the form of a facsimile, and shall be directed to the
address or facsimile number as such Director shall designate by notice to the Company. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting of the Board need
be specified in the notice of such meeting. A meeting may be held at any time without notice if
all the Directors are present or if those not present waive notice of the meeting either before or
after such meeting.
Section 9.07
Action by Consent of Board.
Except as otherwise required by Applicable Law, all decisions of the Board shall require the
affirmative vote of a majority of the Directors present at a meeting at which a quorum, as
described in Section 9.09, is present. To the extent permitted by Applicable Law, the Board may
act without a meeting so long as all Directors shall have executed a written consent with respect
to any Board action taken in lieu of a meeting.
Section 9.08
Conference Telephone Meetings.
Directors or members of any committee of the Board may participate in a meeting of the Board
or such committee by means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at such meeting.
Section 9.09
Quorum.
A majority of Directors, present in person or participating in accordance with Section 9.08,
shall constitute a quorum for the transaction of business, but if at any meeting of the Board there
shall be less than a quorum present, a majority of the Directors present in person or
24
participating in accordance with Section 9.08 may adjourn the meeting from time to time
without further notice. The Directors so present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough Directors to leave
less than a quorum.
Section 9.10
Vacancies; Increases in the Number of Directors.
Unless otherwise provided in this Agreement, vacancies and newly created directorships
resulting from any increase in the authorized number of Directors may be filled by the vote of a
majority of the Directors then in office, although less than a quorum, or a sole remaining
Director; and any Director so chosen shall hold office until the next annual election and until his
successor shall be duly elected and shall qualify, unless sooner displaced.
Section 9.11
Committees.
(a) At any time and from time to time, the Board may establish one or more committees of the
Board and may delegate some or all of its responsibilities to such committees.
(b) In connection with the Partnership IPO, the Board has established an Audit Committee.
Additionally, (i) the Board has established for such Audit Committee a written Audit Committee
Charter in accordance with the rules of the New York Stock Exchange and (ii) the Audit Committee is
constituted in compliance with the requirements established by the Securities Exchange Act and the
rules and regulations of the Commission thereunder and by the New York Stock Exchange.
(c) In connection with the Partnership IPO, the Board has established a Compensation
Committee. Additionally, the Board has established for such Compensation Committee a written
Compensation Committee Charter.
(d) In addition to any other committees, the Board may appoint from time to time one or more
Conflicts Committees. At the request of the Board, a Conflicts Committee may review, and approve
or disapprove, transactions in which a potential conflict of interest exists or arises between the
Company or any of its Affiliates, on the one hand, and the Partnership, any Group Member, any
Partner or any Assignee (as defined in the Partnership Agreement), on the other hand, all in
accordance with the applicable provisions of the Partnership Agreement.
(e) A majority of any committee may determine its action and fix the time and place of its
meetings unless the Board shall otherwise provide. Notice of such meetings shall be given to each
member of the committee in the manner provided for in Section 9.06. The Board shall have the power
at any time to fill vacancies in, or to change the membership of, any committee, or to dissolve any
committee.
Section 9.12
Removal.
Any Director (including the Chairman of the Board) or the entire Board may be removed, with or
without cause, by Members holding a Majority Interest.
25
ARTICLE X.
OFFICERS
Section 10.01
Elected Officers.
The officers of the Company shall serve at the pleasure of the Board. The officers shall have
the authority and duties delegated to each of them, respectively, by the Board from time to time.
The elected officers of the Company shall be a Chief Executive Officer, a Chief Operating Officer,
a President, one or more Vice Presidents (including, without limitation, one or more Executive Vice
Presidents, Senior Vice Presidents and/or Vice Presidents), a Treasurer, a Secretary and/or such
other officers as the Board from time to time may deem proper. Any Person may hold any number of
offices at the same time. All officers elected by the Board shall each have such powers and duties
as generally pertain to their respective offices, subject to the specific provisions of this
Article X. The Board or any committee thereof may from time to time elect such other officers
(including one or more Controllers, Assistant Treasurers and/or Assistant Secretaries) as may be
necessary or desirable for the conduct of the business of the Company. Such other officers and
agents shall have such duties and shall hold their offices for such terms as shall be provided in
this Agreement or as may be prescribed by the Board or such committee, as the case may be.
Section 10.02
Election and Term of Office.
The officers of the Company shall be elected annually by the Board at the regular meeting of
the Board held after the annual meeting of the Members referred to in Section 11.01. If the
election of officers shall not be held at such meeting, such election shall be held as soon
thereafter as convenient. Each officer shall hold office until such Person’s successor shall have
been duly elected and shall have qualified or until such Person’s death or until he shall resign or
be removed pursuant to Section 10.08.
Section 10.03
Chief Executive Officer; Chief Operating Officer.
(a) The Chief Executive Officer (if any), subject to the control of the Board, shall be
responsible for the administration and operation of the Company’s business and general supervision
of its policies and affairs. The Chief Executive Officer, if he is also a Director, shall, in the
absence of or because of the inability to act of the Chairman of the Board (and of the Vice
Chairman as well if there be one) perform all duties of the Chairman of the Board and preside at
all meetings of the Members and the Board.
(b) The Chief Operating Officer (if any) shall have such powers and shall perform such duties
as shall be assigned to him from time to time by the Board.
Section 10.04
President.
The President, if and while there is no Chief Executive Officer, shall have such powers and
shall perform such duties as are provided for herein for the Chief Executive Officer, and otherwise
shall have such powers and shall perform such duties as shall be assigned to him from time to time
by the Board. If the Board so determines, the President may also be elected as the Chief Executive
Officer or the Chief Operating Officer.
26
Section 10.05
Vice Presidents.
Each Executive Vice President, Senior Vice President and Vice President shall have such powers
and shall perform such duties as shall be assigned to him from time to time by the Board. If the
Board so determines, any such Vice President may also be elected as the Chief Operating Officer.
Section 10.06
Treasurer; Assistant Treasurers.
(a) The Treasurer shall exercise general supervision over the receipt, custody and
disbursement of corporate funds. The Treasurer shall cause the funds of the Company to be
deposited in such banks as may be authorized by the Board, or in such banks as may be designated as
depositories in the manner provided by resolution of the Board. The Treasurer shall, in general,
perform all duties incident to the office of the Treasurer and shall have such further powers and
duties and shall be subject to such directions as may be granted or imposed from time to time by
the Board.
(b) Assistant Treasurers shall have such of the authority and perform such of the duties of
the Treasurer as may be provided in this Agreement or assigned to them by the Board or the
Treasurer. Assistant Treasurers shall assist the Treasurer in the performance of the duties
assigned to the Treasurer, and in assisting the Treasurer each Assistant Treasurer shall for such
purpose have the powers of the Treasurer. During the Treasurer’s absence or inability, the
Treasurer’s authority and duties shall be possessed by such Assistant Treasurer or Assistant
Treasurers as the Board may designate.
Section 10.07
Secretary; Assistant Secretaries.
(a) The Secretary shall keep or cause to be kept, in one or more books provided for that
purpose, the minutes of all meetings of the Board, the committees of the Board and the Members.
The Secretary shall see that all notices are duly given in accordance with the provisions of this
Agreement and as required by law; shall be custodian of the records of the Company; and shall see
that the books, reports, statements, certificates and other documents and records required by law
to be kept and filed are properly kept and filed; and in general shall perform all the duties
incident to the office of Secretary and such other duties as from time to time may be assigned to
the Secretary by the Board.
(b) Assistant Secretaries shall have such of the authority and perform such of the duties of
the Secretary as may be provided in this Agreement or assigned to them by the Board or the
Secretary. Assistant Secretaries shall assist the Secretary in the performance of the duties
assigned to the Secretary, and in assisting the Secretary each Assistant Secretary shall for such
purpose have the powers of the Secretary. During the Secretary’s absence or inability, the
Secretary’s authority and duties shall be possessed by such Assistant Secretary or Assistant
Secretaries as the Board may designate.
Section 10.08
Removal.
Any officer elected, or agent appointed, by the Board may be removed by the Board. No elected
officer shall have any contractual rights against the Company for compensation by virtue
27
of such election beyond the date of the election of such Person’s successor, such Person’s
death, such Person’s resignation or such Person’s removal, whichever event shall first occur,
except as otherwise provided in a separate agreement or under an employee deferred compensation
plan.
Section 10.09
Vacancies.
A newly created elected office and a vacancy in any elected office because of death,
resignation or removal may be filled by the Board for the unexpired portion of the term at any
meeting of the Board.
ARTICLE XI.
MEMBER MEETINGS
Section 11.01
Meetings.
Except as otherwise provided in this Agreement, all acts of the Members to be taken hereunder
shall be taken in the manner provided in this Article XI. The Class A Members shall meet annually
for the transaction of such business as may properly come before the meeting at such time and place
as the Board shall specify in the notice of the meeting. Such notice shall be delivered to each
Class A Member at least 10 and not more than 60 days prior to such meeting. Special meetings of
the Class A Members, or of all Members, may be called by the Board or by one or more Members owning
in the aggregate 20% or more of the Units entitled to vote at such meeting. Such Member or Members
shall call a meeting by delivering to the Board one or more requests in writing stating that the
signing Member or Members collectively own 20% or more of the Units entitled to vote, that the
signing Member or Members wish to call a meeting and indicating the general or specific purposes
for which the meeting is to be called.
Section 11.02
Notice of a Meeting.
Written notice of a meeting called pursuant to Section 11.01 shall be given to the Members
entitled to vote at such meeting. Each notice of a meeting shall be given in writing, by mail or
other means of written communication, in accordance with Section 16.02. The notice shall be deemed
to have been given at the time when deposited in the mail or sent by other means of written
communication. Attendance of a Member at a meeting shall constitute a waiver of notice of such
meeting, except where a Member attends the meeting for the express purpose of objecting to the
transaction of any business on the grounds that the meeting was not lawfully called or convened.
Section 11.03
Quorum; Voting Requirement.
The presence at a meeting, in person or by proxy, of Members holding a majority of the Units
held by all Members entitled to vote at such meeting shall constitute a quorum for the transaction
of business by the Members. If a quorum is present at a meeting, the affirmative vote of Members
present at such meeting that hold a majority of the Units held by all Members entitled to vote at
such meeting shall constitute a valid decision by the Members, unless otherwise provided in this
Agreement.
28
Section 11.04
Action by Consent of Members.
Any action that may be taken at a meeting of the Members may be taken without a meeting if an
approval in writing setting forth such action is signed by the Members having not less than the
minimum number of votes that would be necessary to authorize or take such action at a meeting at
which all Units entitled to vote thereon were present and voting. Following any such approval in
writing, written notice thereof setting forth such action shall be provided to all of the Members.
ARTICLE XII.
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
Section 12.01
Indemnification.
(a) To the fullest extent permitted by Applicable Law but subject to the limitations expressly
provided in this Agreement, all Indemnitees shall be indemnified and held harmless by the Company
from and against any and all losses, claims, damages, liabilities, joint or several, expenses
(including legal fees and expenses), judgments, fines, penalties, interest, settlements or other
amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil,
criminal, administrative or investigative, in which any Indemnitee may be involved, or is
threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee;
provided
, that an Indemnitee shall not be indemnified and held harmless if there has been a final
and non-appealable judgment entered by a court of competent jurisdiction determining that, in
respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section
12.01, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of
a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere, or its equivalent, shall not create a presumption that the Indemnitee
acted in a manner contrary to that specified above. Any indemnification pursuant to this Section
12.01 shall be made only out of the assets of the Company.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses)
incurred by an Indemnitee who is indemnified pursuant to Section 12.01(a) in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to
the final disposition of such claim, demand, action, suit or proceeding, upon receipt by the
Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be
determined that the Indemnitee is not entitled to be indemnified as authorized in this Section
12.01.
(c) The indemnification provided by this Section 12.01 shall be in addition to any other
rights to which an Indemnitee may be entitled under any agreement, as a matter of law or otherwise,
both as to actions in an Indemnitee’s capacity as an Indemnitee and as to actions in any other
capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall
inure to the benefit of the heirs, successors, assigns and administrators of an Indemnitee.
29
(d) The Company may purchase and maintain insurance on behalf of the Company, its Affiliates
and such other Persons as the Company shall determine, against any liability that may be asserted
against or expense that may be incurred by such Person in connection with the Company’s activities
or such Person’s activities on behalf of the Company, regardless of whether the Company would have
the power or obligation to indemnify such Person against such liability under the provisions of
this Agreement.
(e) For purposes of this Section 12.01, the Company shall be deemed to have requested an
Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its
duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or
participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to
an employee benefit plan pursuant to Applicable Law shall constitute “fines” within the meaning of
Section 12.01(a); and action taken or omitted by an Indemnitee with respect to any employee benefit
plan in the performance of its duties for a purpose reasonably believed by it to be in the interest
of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in,
or not opposed to, the best interests of the Company.
(f) An Indemnitee shall not be denied indemnification in whole or in part under this Section
12.01 because the Indemnitee had an interest in the transaction with respect to which the
indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(g) The provisions of this Section 12.01 are for the benefit of the Indemnitees, their heirs,
successors, assigns and administrators, and shall not be deemed to create any rights for the
benefit of any other Persons.
(h) No amendment, modification or repeal of this Section 12.01 or any provision hereof shall
in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be
indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee
under and in accordance with the provisions of this Section 12.01 as in effect immediately prior to
such amendment, modification or repeal with respect to claims arising from or relating to matters
occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when
such claims may arise or be asserted.
Section 12.02
Liability of Indemnitees.
(a) Notwithstanding anything to the contrary set forth in this Agreement, no Indemnitee shall
be liable for monetary damages to the Company or to any Persons who have acquired interests in the
Company, for losses sustained or liabilities incurred as a result of any act or omission of an
Indemnitee unless there has been a final and non-appealable judgment entered by a court of
competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted
in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted
with knowledge that the Indemnitee’s conduct was criminal.
(b) Any amendment, modification or repeal of this Section 12.02 shall be prospective only and
shall not in any way affect the limitations on the liability to the Company
30
and the Company’s directors, officers and employees under this Section 12.02 as in effect
immediately prior to such amendment, modification or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such amendment, modification or
repeal, regardless of when such claims may arise or be asserted.
Section 12.03
Standards of Conduct and Fiduciary Duties.
(a) In causing the Company to make a determination or take or decline to take any action,
unless another express standard is provided for in this Agreement, an Indemnitee shall act in good
faith and shall not be subject to any other or different standards imposed by this Agreement, any
other agreement contemplated hereby or under the Act or any other law, rule or regulation, or in
equity. In order for a determination or other action affecting the Company to be in “good faith”
for purposes of this Agreement, an Indemnitee must believe that the determination or other action
is in, or not opposed to, the best interests of the Company.
(b) To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary
duties) and liabilities relating thereto to the Company or to any Member, an Indemnitee acting
under this Agreement shall not be liable to the Company or to any Member for its good faith
reliance on the provisions this Agreement. The provisions of this Agreement, to the extent that
they restrict the duties and liabilities of an Indemnitee otherwise existing at law or in equity,
are agreed by the parties hereto to replace such other duties and liabilities of such Indemnitee.
ARTICLE XIII.
TAXES
Section 13.01
Tax Returns.
The Tax Matters Officer of the Company shall prepare and timely file (on behalf of the
Company) all federal, state and local tax returns required to be filed by the Company. Each Member
shall furnish to the Company all pertinent information in its possession relating to the Company’s
operations that is necessary to enable the Company’s tax returns to be timely prepared and filed.
The Company shall bear the costs of the preparation and filing of its returns.
Section 13.02
Tax Elections.
(a) The Company shall make the following elections on the appropriate tax returns:
(i) to adopt as the Company’s fiscal year the calendar year;
(ii) to adopt the accrual method of accounting;
(iii) if a distribution of the Company’s property as described in Section 734
of the Code occurs or upon a transfer of a Membership Interest as described in
Section 743 of the Code occurs, on request by notice from any Member, to elect,
pursuant to Section 754 of the Code, to adjust the basis of the Company’s
properties; and
31
(iv) any other election the Board may deem appropriate.
(b) Neither the Company nor any Member shall make an election for the Company to be excluded
from the application of the provisions of subchapter K of chapter 1 of subtitle A of the Code or
any similar provisions of applicable state law and no provision of this Agreement (including
Section 2.07) shall be construed to sanction or approve such an election.
Section 13.03
Tax Matters Officer.
(a) AIM Oxford shall act as the “tax matters partner” of the Company pursuant to Section
6231(a)(7) of the Code (the “
Tax Matters Officer
”). The Tax Matters Officer shall take
such action as may be necessary to cause to the extent possible each Member to become a “notice
partner” within the meaning of Section 6223 of the Code. The Tax Matters Officer shall inform each
Member of all significant matters that may come to its attention in its capacity as Tax Matters
Officer by giving notice thereof on or before the fifth Business Day after becoming aware thereof
and, within that time, shall forward to each Member copies of all significant written
communications it may receive in that capacity.
(b) The Tax Matters Officer shall take no action without the authorization of the Board, other
than such action as may be required by Applicable Law. Any cost or expense incurred by the Tax
Matters Officer in connection with its duties, including the pursuance of or the preparation for
administrative or judicial proceedings, shall be paid by the Company.
(c) The Tax Matters Officer shall not enter into any extension of the period of limitations
for making assessments on behalf of the Members without first obtaining the consent of the Board.
The Tax Matters Officer shall not bind any Member to a settlement agreement without obtaining the
consent of such Member. Any Member that enters into a settlement agreement with respect to any
Company item (as described in Section 6231(a)(3) of the Code) shall notify the other Members of
such settlement agreement and its terms within 90 Days from the date of the settlement.
(d) No Member shall file a request pursuant to Section 6227 of the Code for an administrative
adjustment of Company items for any taxable year without first notifying the other Members. If the
Board consents to the requested adjustment, the Tax Matters Officer shall file the request for the
administrative adjustment on behalf of the Members. If such consent is not obtained within 30 Days
from such notice, or within the period required to timely file the request for administrative
adjustment, if shorter, any Member may file a request for administrative adjustment on its own
behalf. Any Member intending to file a petition under Sections 6226, 6228 or other Section of the
Code with respect to any item involving the Company shall notify the other Members of such
intention and the nature of the contemplated proceeding. In the case where the Tax Matters Officer
is intending to file such petition on behalf of the Company, such notice shall be given within a
reasonable period of time to allow the Members to participate in the choosing of the forum in which
such petition will be filed.
(e) If any Member intends to file a notice of inconsistent treatment under Section 6222(b) of
the Code, such Member shall give reasonable notice under the circumstances to the other Members of
such intent and the manner in which such Member’s intended treatment
32
of an item is (or may be) inconsistent with the treatment of that item by the other Members.
ARTICLE XIV.
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
Section 14.01
Maintenance of Books.
(a) The Board shall cause to be kept a record containing the minutes of the proceedings of the
meetings of the Board and of the Members, appropriate registers and such other books of records and
accounts as may be necessary for the proper conduct of the business of the Company.
(b) The books of account of the Company shall be (i) maintained on the basis of a fiscal year
that is the calendar year and (ii) maintained on an accrual basis in accordance with GAAP,
consistently applied.
Section 14.02
Reports.
With respect to each fiscal year, the Board shall prepare, or cause to be prepared, and
deliver, or cause to be delivered, to each Member:
(a) Within 120 Days after the end of such fiscal year, a profit and loss statement and a
statement of cash flows for such fiscal year, a balance sheet and a statement of each Member’s
Capital Account as of the end of such fiscal year, together with a report thereon of the Certified
Public Accountants; and
(b) Such federal, state and local income tax returns and such other accounting, tax
information and schedules as shall be necessary for the preparation by each Member on or before
June 15 following the end of each fiscal year of its income tax return which includes such fiscal
year.
Section 14.03
Bank Accounts.
Funds of the Company shall be deposited in such banks or other depositories as shall be
designated from time to time by the Board. All withdrawals from any such depository shall be made
only as authorized by the Board and shall be made only by check, wire transfer, debit memorandum or
other written instruction.
ARTICLE XV.
DISSOLUTION, WINDING-UP, TERMINATION AND CONVERSION
Section 15.01
Dissolution.
(a) The Company shall dissolve and its affairs shall be wound up on the first to occur of the
following events (each a “
Dissolution Event
”), and no other event shall cause a dissolution
of the Company:
(i) the unanimous consent of the Class A Members; or
33
(ii) the entry of a decree of judicial dissolution of the Company under Section
18-802 of the Act; or
(iii) at any time there are no Members of the Company, unless the Company is
continued in accordance with the Act or this Agreement.
(b) Upon the occurrence of any event that causes there to be no Members of the Company, to the
fullest extent permitted by law, the personal representative of the last remaining Member is hereby
authorized to, and shall, within 90 days after the occurrence of the event that terminated the
continued membership of such Member in the Company, agree in writing (i) to continue the Company
and (ii) to the admission of the personal representative or its nominee or designee, as the case
may be, as a substitute Member of the Company, effective as of the occurrence of the event that
terminated the continued membership of such Member in the Company.
(c) Notwithstanding any other provision of this Agreement, except as provided in
Exhibit
B
, the Bankruptcy of a Member shall not cause such Member to cease to be a member of the
Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
Section 15.02
Dissolution, Winding-Up and Termination.
(a) On the occurrence of a Dissolution Event, the Board shall act as liquidator. The
liquidator shall proceed diligently to wind up the affairs of the Company and make final
distributions as provided herein and in the Act. The costs of winding up shall be borne as a
Company expense. Until final distribution, the liquidator shall continue to operate the Company
properties with all of the power and authority of the Members. The steps to be accomplished by the
liquidator are as follows:
(i) as promptly as possible after dissolution and again after final winding up,
the liquidator shall cause a proper accounting to be made by a recognized firm of
certified public accountants of the Company’s assets, liabilities, and operations
through the last Day of the month in which the dissolution occurs or the final
winding up is completed, as applicable;
(ii) the liquidator shall:
(A) use its reasonable best efforts to sell all of the Company’s assets
(except cash), in the exercise of its best judgment under the circumstances
then presented, that it deems in the best interest of the Members; and
(B) attempt to convert all assets of the Company to cash so long as it
can do so consistently with prudent business practice;
provided, however,
that the Members and their respective designees shall
have the right to purchase any of the Company assets to be sold on
liquidation, provided that the terms on which such sale is made are no less
34
favorable than would otherwise be available from third parties; and
provided, further,
that the gains and losses from the sale of the Company
assets, together with all other revenue, income, gain, deduction, expense,
loss and credit during the period, shall be allocated in accordance with
Article VIII;
(iii) the liquidator shall use Company funds to discharge all of the debts,
liabilities and obligations of the Company (including all expenses incurred in
winding up) or otherwise make adequate provision for payment and discharge thereof
(including the establishment of a cash escrow fund for contingent, conditional and
unmatured liabilities in such amount and for such term as the liquidator may
reasonably determine); and
(iv) all remaining assets of the Company shall be distributed to the Members as
follows:
(A) with respect to all Company assets that have been sold, the fair
market value of those assets shall be determined and the Capital Accounts of
the Members shall be adjusted to reflect the manner in which the unrealized
income, gain, loss, and deduction inherent in property that has not been
reflected in the Capital Accounts previously would be allocated among the
Members if there were a taxable disposition of that property for the fair
market value of that property on the date of distribution; and
(B) Company property (including cash) shall be distributed among the
Members in accordance with Section 8.02; and, to the extent practicable,
those distributions shall be made by the end of the taxable year of the
Company during which the liquidation of the Company occurs (or, if later, 90
Days after the date of the liquidation).
(b) The distribution of cash or property to a Member in accordance with the provisions of this
Section 15.02 constitutes a complete return to the Member of its Capital Contributions and a
complete distribution to the Member of its Membership Interest and all the Company’s property and
constitutes a compromise to which all Members have consented pursuant to Section 18-502(b) of the
Act. To the extent that a Member returns funds to the Company, it has no Claim against any other
Member for those funds.
Section 15.03
Deficit Capital Accounts.
No Member will be required to pay to the Company, to any other Member or to any third party
any deficit balance that may exist from time to time in the Member’s Capital Account.
Section 15.04
Certificate of Cancellation.
On completion of the distribution of Company assets as provided herein, the Members (or such
other Person or Persons as the Act may require or permit) shall file a certificate of cancellation
with the Secretary of State of the State of Delaware, cancel any other filings made
35
pursuant to Section 2.05, and take such other actions as may be necessary to terminate the
existence of the Company. Upon the filing of such certificate of cancellation, the existence of
the Company shall terminate (and the Term shall end), except as may be otherwise provided by
Applicable Law.
ARTICLE XVI.
GENERAL PROVISIONS
Section 16.01
Offset.
Whenever the Company is to pay any sum to any Member, any amounts that Member owes the Company
may be deducted from that sum before payment.
Section 16.02
Notices.
Except as otherwise provided in Section 9.06, all notices, demands, requests, consents,
approvals or other communications (collectively, “
Notices
”) required or permitted to be
given hereunder or which are given with respect to this Agreement shall be in writing and shall be
personally served, delivered by reputable air courier service with charges prepaid, or transmitted
by hand delivery or facsimile, addressed as set forth below, or to such other address as such party
shall have specified most recently by written notice. Notice shall be deemed given on the date of
service or transmission if personally served or transmitted by facsimile. Notice otherwise sent as
provided herein shall be deemed given upon delivery of such notice:
To the Company
:
Oxford Resources GP, LLC
41 South High Street, Suite 3450
Columbus, Ohio 43215-6150
Attn: Charles C. Ungurean, President
To AIM Oxford
:
c/o American Infrastructure MLP Fund, L.P.
950 Tower Lane
Suite 800
Foster City, California 94404
Attn: Matthew P. Carbone and Brian D. Barlow
To C&T Coal
:
C&T Coal, Inc.
41 South High Street, Suite 3450
Columbus, Ohio 43215-6150
Attn: Charles C. Ungurean, President
36
To Executive
:
Jeffrey M. Gutman
7067 Rob Roy Drive
Dublin, Ohio 43017
Section 16.03
Entire Agreement; Superseding Effect.
Effective as of the Effective Time (but not for any period prior to the Effective Time), this
Agreement, together with the Exhibits hereto, and the other agreements referenced herein, including
the Investors’ Rights Agreement, shall constitute the entire agreement of the Members relating to
the Company with respect to the matters contemplated hereby and thereby, and supersede all
provisions and concepts contained in all prior contracts or agreements between and among the
Members relating thereto, whether oral or written.
Section 16.04
Effect of Waiver or Consent.
Except as otherwise provided in this Agreement, a waiver or consent, express or implied, to or
of any breach or default by any Member in the performance by that Member of its obligations with
respect to the Company is not a consent or waiver to or of any other breach or default in the
performance by that Member of the same or any other obligations of that Member with respect to the
Company. Except as otherwise provided in this Agreement, failure on the part of a Member to
complain of any act of any Member or to declare any Member in default with respect to the Company,
irrespective of how long that failure continues, does not constitute a waiver by that Member of its
rights with respect to that default until the applicable statute-of-limitations period has run.
Section 16.05
Amendment or Restatement.
Except as provided in Sections 2.03, 3.01 and 6.01, and
Exhibit A
, this Agreement
(including any Exhibit hereto) or the Delaware Certificate may be amended or restated only by a
written instrument approved by Members holding a Majority Interest.
Section 16.06
Binding Effect.
Subject to the restrictions on Transfers set forth in this Agreement, this Agreement is
binding on and shall inure to the benefit of the Members and their respective successors and
permitted assigns.
Section 16.07
Governing Law; Severability.
THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR
THE CONSTRUCTION OF THIS AGREEMENT TO THE LAWS OF ANOTHER JURISDICTION. In the event of a direct
conflict between the provisions of this Agreement and any mandatory, non-waivable provision of the
Act, such provision of the Act shall control. If any provision of the Act may be varied or
superseded in a limited liability company agreement
37
(or otherwise by agreement of the members or managers of a limited liability company), such
provision shall be deemed superseded and waived in its entirety if this Agreement contains a
provision addressing the same issue or subject matter. If any provision of this Agreement or the
application thereof to any Member or circumstance is held invalid or unenforceable to any extent,
(a) the remainder of this Agreement and the application of that provision to other Members or
circumstances is not affected thereby, and (b) the Members shall negotiate in good faith to replace
that provision with a new provision that is valid and enforceable and that puts the Members in
substantially the same economic, business and legal position as they would have been in if the
original provision had been valid and enforceable.
Section 16.08
Further Assurances.
In connection with this Agreement and the transactions contemplated hereby, each Member shall
execute and deliver any additional documents and instruments and perform any additional acts that
may be necessary or appropriate to effectuate and perform the provisions of this Agreement and
those transactions.
Section 16.09
Waiver of Certain Rights.
Each Member irrevocably waives any right it may have to maintain any action for dissolution of
the Company or for partition of the property of the Company.
Section 16.10
Acknowledgement Regarding Outside Businesses and Opportunities.
(a) Except as may be restricted by any other agreement (including (i) the CCU Employment
Agreement, (ii) the TTU Employment Agreement and (iii) the Executive Employment Agreement), each
Member shall have the right to engage in businesses of every type and description and other
activities for profit and to engage in and possess an interest in other business ventures of any
and every type or description, whether in businesses engaged in or anticipated to be engaged in by
any Member, independently or with others, including business interests and activities in direct
competition with the business and activities of the Company or its Subsidiaries, and none of the
same shall constitute a breach of this Agreement or any duty expressed or implied by law or equity
to the Company or its Subsidiaries or any Member. None of the Company, its Subsidiaries, any
Member or any other Person shall have any rights by virtue of this Agreement, or the relationship
established hereby in any business ventures of any Member. Notwithstanding anything to the contrary
in this Agreement or any duty existing at law, in equity or otherwise, but subject to the proviso
set forth in the last sentence of Section 16.10(b), (i) the engaging in competitive activities by
any Member in accordance with the provisions of this Section 16.10 is hereby approved by the Board
and all Members, (ii) it shall be deemed not to be a breach of any fiduciary duty or any other
obligation of any type whatsoever of any Member for the Members to engage in such business
interests and activities in preference to or to the exclusion of the Company and (iii) the Members
shall have no obligation hereunder or as a result of any duty expressed or implied by law to
present business opportunities to the Company.
(b) Notwithstanding anything to the contrary in this Agreement, but subject to the terms of
any other agreement to which a party may be subject (including (i) the CCU Employment Agreement,
(ii) the TTU Employment Agreement, (iii) the Executive Employment
38
Agreement and (iv) the Contribution Agreement), the doctrine of corporate opportunity, or any
analogous doctrine, shall not apply to any Member or Director. No Member or Director who acquires
knowledge of a potential transaction, agreement, arrangement or other matter that may be an
opportunity for the Company shall have any duty to communicate or offer such opportunity to the
Company, and such Member or Director shall not be liable to the Company or any of its Subsidiaries,
any Member or any other Person for breach of any fiduciary or other duty by reason of the fact that
such Member or Director pursues or acquires for itself, directs such opportunity to another Person
or does not communicate such opportunity or information to the Company;
provided
, that such Member
or Director does not engage in such business or activity as a result of or using confidential or
proprietary information provided by or on behalf of the Company to such Member.
Section 16.11
Counterparts.
This Agreement may be executed in any number of counterparts with the same effect as if all
signing parties had signed the same document. All counterparts shall be construed together and
constitute the same instrument.
Section 16.12
Jurisdiction.
Any and all Claims arising out of, in connection with or in relation to (i) the
interpretation, performance or breach of this Agreement, or (ii) any relationship before, at the
time of entering into, during the term of, or upon or after expiration or termination of this
Agreement, between the parties hereto, shall be brought in any court of competent jurisdiction in
the State of Delaware. Each party hereto unconditionally and irrevocably consents to the
jurisdiction of any such court over any Claims and waives any objection that such party may have to
the laying of venue of any Claims in any such court.
Section 16.13
Provisions Regarding Effective Time.
As indicated in the Recitals, this Agreement is to become effective at the Effective Time, and
accordingly in connection therewith the parties agree that the following shall apply:
(a) This Agreement shall from and after its execution by the parties be an agreement binding
upon and enforceable by the Members subject to the application of the provisions hereof generally
being effective as of the Effective Time.
(b) The affairs of the Company shall continue to be governed by the terms of the First
Restated Agreement, as amended by the Amendments, until the Effective Time.
39
(c) In the event that the closing of the Partnership IPO does not occur on or before December
31, 2010, this Agreement shall be null and void and of no force and effect and the First Restated
Agreement, as amended by the Amendments, shall continue in full force and effect.
[
SIGNATURE PAGE FOLLOWS
]
40
IN WITNESS WHEREOF, the Members have executed this Agreement as of the date first set forth
above and by such execution also agree to the terms of the Exhibits to this Agreement.
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CLASS A MEMBERS:
AIM OXFORD HOLDINGS, LLC
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By:
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AIM Coal Management, LLC,
its Manager
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By:
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/s/ Matthew P. Carbone
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Name:
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Matthew P. Carbone
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Title:
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Member
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C&T COAL, INC.
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By:
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/s/ Charles C. Ungurean
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Charles C. Ungurean
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President
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CLASS B MEMBERS:
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/s/ Jeffrey M. Gutman
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Jeffrey M. Gutman
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Approved by Company:
OXFORD RESOURCES GP, LLC
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By:
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/s/ Charles C. Ungurean
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Charles C. Ungurean
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President and Chief Executive Officer
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SIGNATURE PAGE TO
SECOND AMENDED AND RESTATED
LIMITED LIABLITY COMPANY AGREEMENT
OF
OXFORD RESOURCES GP, LLC
SPOUSAL CONSENT
The Executive’s spouse is fully aware of, understands and fully consents and agrees to the
provisions of this Agreement and the Partnership Agreement and their binding effect upon any
marital or community property interests she may now or hereafter own, and agrees that the
termination of her and the Executive’s marital relationship for any reason shall not have the
effect of removing any of the Class B Units otherwise subject to this Agreement from coverage
hereunder and that her awareness, understanding, consent and agreement are evidenced by her
signature below.
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/s/ Tracey Gutman
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Spouse’s Name: Tracey Gutman
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SIGNATURE PAGE TO
SECOND AMENDED AND RESTATED
LIMITED LIABLITY COMPANY AGREEMENT
OF
OXFORD RESOURCES GP, LLC
EXHIBIT A
(1)
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Number of
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Number of
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Number of Class
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Class B Units
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Total Units
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Capital
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Member
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A Units Held
(2)
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Held
(3)(4)
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Held
(5)
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Account Balance
(6)
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AIM Oxford Holdings, LLC
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880.831853
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—
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880.831853
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$
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C&T Coal, Inc.
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448.255707
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—
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448.255707
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$
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Jeffrey M. Gutman
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—
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5.979201
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5.979201
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$
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0
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Total:
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1,329.087560
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5.979201
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1,335.066761
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$
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Footnotes
:
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(1)
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As of the Effective Time, this
Exhibit A
automatically shall be deemed
modified as provided in Footnotes (2), (3), (5) and (6) (the “
Modification
Footnotes
”), and then or at any time thereafter AIM Oxford Holdings, LLC (“
AIM
”)
and C&T Coal, Inc. (“
C&T Coal
”) are authorized to (but shall not be required to, and
any failure to do so shall not affect the automatic modification hereof) prepare and execute a
modified
Exhibit A
which reflects the modifications provided for in the Modification
Footnotes (and delete this Footnote and the Modification Footnotes while renumbering Footnote
(4) as Footnote (1)), which modified
Exhibit A
shall for all purposes be the
Exhibit A
as of the Effective Time.
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(2)
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The “Number of Class A Units Held” which are shown as held by AIM and C&T Coal and
the column total shown with respect thereto shall be modified as of the Effective Time to
reflect any additional Class A Units issued to AIM and C&T Coal with respect to any Capital
Contributions made to the Company by AIM and C&T Coal in connection with the closing of the
Partnership IPO.
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(3)
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The number of Class B Units issued to Jeffrey M. Gutman (“Mr. Gutman”) shall be
automatically increased as of the Effective Time such that at and immediately after the
Effective Time the percentage of the total Units represented by Mr. Gutman’s Class B Units
shall be the same as the percentage of the total Units represented by Mr. Gutman’s Class B
Units immediately before the modification provided for in Footnote (2), and in connection
therewith the “Number of Class B Units Held” which are shown as held by Mr. Gutman and the
column total shown with respect thereto shall be modified as of the Effective Time to reflect
such increased number of Class B Units issued to Mr. Gutman.
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(4)
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The Class B Units are subject to the forfeiture provisions set forth in
Exhibit
B
.
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(5)
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The “Number of Total Units Held” which are shown as held by each Member and the
column total shown with respect thereto shall be modified as of the Effective Time to reflect
any additional issued Units reflected in the modifications provided for in Footnotes (2) and
(3).
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(6)
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The “Capital Account Balance” which is shown for each of AIM and C&T Coal and the
column total shown with respect thereto shall be modified as of the Effective Time to reflect
any Capital Contributions made to the Company by AIM and C&T Coal in connection with the
closing of the Partnership IPO.
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A-1
EXHIBIT B
ADDITIONAL TERMS AND CONDITIONS
APPLICABLE TO THE CLASS A UNITS AND THE CLASS B UNITS
Set forth below are the additional terms and conditions that are applicable to the Class A
Units and the Class B Units, as the case may be. The Class B Units have been granted by the
Company to the Executive at the Effective Time to provide the Executive with incentive
compensation. The Executive acknowledges and agrees that an integral component of such incentive
compensation includes the forfeiture and other terms and provisions set forth in this
Exhibit
B
that are applicable to the Class B Units and, absent these provisions, the Company would not
have granted such Class B Units to the Executive.
1.
Defined Terms
. Capitalized terms defined in this
Exhibit B
shall have the meanings
given to them only for purposes of this
Exhibit B
, as the same terms may be differently
defined elsewhere in the Second Amended and Restated Limited Liability Company Agreement to which
this Exhibit B is attached (the “
LLC Agreement
”). Capitalized terms used in this
Exhibit B
that are not defined in this
Exhibit B
shall have the meanings given
thereto in the LLC Agreement. As used in this
Exhibit B
, the following terms have the
respective meanings set forth below in addition to the other terms defined in this
Exhibit
B
:
“
Call Price
” means, as of any date, a per unit purchase price equal to that portion of
the Equity Value that would be distributed in respect of the Call Securities assuming the Equity
Value was distributed to all holders of Units in accordance with Section 8.02.
“
Cause
” has the meaning given such term in the Executive Employment Agreement.
“
Change of Control
” means, and shall be deemed to have occurred upon the occurrence
of, one or more of the following events:
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(i)
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any “Person” or “group” within the meaning of those terms as
used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended, other than an Affiliate of the Company or the Partnership, shall
become the beneficial owner, by way of merger, consolidation, recapitalization,
reorganization or otherwise, of 50% or more of the combined voting power of the
equity interests of the Company or the Partnership;
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(ii)
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the limited partners of the Partnership approve, in one or a
series of transactions, a plan of complete liquidation of the Partnership;
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(iii)
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the sale, lease or other disposition by either the Company or
the Partnership of all or substantially all of its assets in one or more
transactions to any Person other than the Company, the Partnership or an
Affiliate of the Company or the Partnership; or
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B-1
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(iv)
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a transaction resulting in a Person other than the Company or
an Affiliate of the Company being the general partner of the Partnership,
including a removal of the Company as the general partner of the Partnership.
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Further, notwithstanding the foregoing, for purposes of determining whether the non-forfeiture of
any Class B Unit accelerates, “Change of Control” shall not include a Partnership IPO or a Company
Public Offering.
“
Company Public Offering
” means the first completion of a sale by the Company of Units
pursuant to a registration statement which has become effective under the Securities Act of 1933,
as amended, excluding registration statements on Form S-4, S-8 or similar limited purpose forms,
occurring after the date of the LLC Agreement.
“
Disability
” has the meaning given such term in the Executive Employment Agreement.
“
Equity Value
” means, as of any date of determination, the equity value of the
Company, disregarding any discount for minority interest, restrictions on Transfer of the Units or
lack of marketability of the Units, as determined in good faith and on a consistent basis by the
Board, giving due consideration to, among other things, the earnings and other financial and
operating information of the Company and its Subsidiaries in recent periods, the future prospects
of the Company and its Subsidiaries, the general condition of the securities markets and the fair
market value of securities of companies of a similar size and engaged in businesses similar to the
businesses of the Company and its Subsidiaries.
“
Exempt Transfer
” means (i) any Transfer between the Sponsor Holders (as defined
below) and any of their Affiliates or (ii) any Transfer that is a distribution by AIM Oxford or any
of its Affiliates of Units to Persons who have made investments in any Affiliates of AIM Oxford.
“
Other Termination Event
” means (i) any termination of the Executive’s employment with
the Company other than (a) a termination by the Company for Cause, (b) a termination upon the
Executive’s death or (c) a termination by the Company due to the Executive’s Disability; (ii) an
assignment by a holder of Class B Units for the benefit of creditors, which assignment includes
such Person’s Class B Units; (iii) the commencement of bankruptcy, reorganization, arrangement or
liquidation proceedings, state or federal, by a holder of Class B Units or against such Person,
provided that such Person shall have no further rights to contest same or appeal from rejection of
such Person’s contest, or the appointment of a trustee, receiver, conservator or other judicial
representative for such Person (whether alone or with other assets); (iv) the attachment of,
execution against, levy upon or other seizure of Class B Units, other than an attachment that is
solely for jurisdictional purposes, unless, and only for so long as, the Board determines that such
Person is in good faith contesting such attachment, execution, levy or other seizure; or (v) the
Transfer or attempted Transfer by a holder of Class B Units of all or any portion of its Class B
Units not in compliance with the LLC Agreement.
“
Permitted Transfer
” means, with respect to the Class B Units, any of the following:
(i) any Transfer that is approved by the Board, in its sole and absolute discretion; (ii) any
Transfer pursuant to Section 4 of this
Exhibit B
; (iii) any Transfer pursuant to Section 5
of this
Exhibit B
; (iv) any Transfer pursuant to Section 6 of this
Exhibit B
; and
(v) upon the death or Disability of
B-2
the Executive, any Transfer to the Executive’s spouse, children, parents or siblings or to a
trust for the benefit of any of them.
“
Permitted Transferee
” means any person or entity who acquires Class B Units pursuant
to a Permitted Transfer.
“
Sponsor Holders
” means AIM Oxford and C&T Coal.
2.
Forfeiture of Class B Units
.
(a)
Vesting of Class B Units
. Subject to the other terms and conditions of this
Section 2, the Class B Units shall become non-forfeitable over a four-year period with 25% of the
Class B Units becoming non-forfeitable at the end of each of the first four anniversaries of the
date on which the Effective Time falls, subject to the Executive’s continued employment with the
Company on each applicable anniversary date. Notwithstanding the foregoing, allocations of profits
and losses and distributions with respect to the Class B Units shall be made in accordance with
Article VIII of the LLC Agreement without regard to whether or not the Class B Units are
non-forfeitable.
(b)
Employment Terminated for Cause
. If the Executive’s employment with the Company
is terminated by the Company for Cause, all Class B Units (whether or not then otherwise
non-forfeitable) shall immediately and without further action be forfeited to the Company and the
holder thereof shall have no further rights with respect to such Class B Units.
(c)
Employment Terminated by Reason of Death or by Company Due to Disability
. Upon the
Executive’s termination of employment with the Company by reason of death or termination of
employment by the Company due to Disability, 100% of the forfeitable Class B Units not previously
forfeited shall become non-forfeitable.
(d)
Change of Control
. In the event of a Change of Control, 100% of the forfeitable
Class B Units not previously forfeited shall become non-forfeitable as of immediately prior to the
Change in Control. In addition, immediately prior to a Transfer pursuant to Section 6 of this
Exhibit B
, but contingent upon such Transfer, 100% of the forfeitable Class B Units not
previously forfeited shall become non-forfeitable.
(e)
Other Termination Events
. Upon the occurrence of an Other Termination Event with
respect to the Executive or other holder of Class B Units, all forfeitable Class B Units not
previously forfeited shall immediately and without further action be forfeited to the Company and
the holder thereof shall have no further rights with respect to such forfeitable Class B Units.
3.
Restrictions on Transfers of Class B Units
.
The Class B Units may not be Transferred except pursuant to a Permitted Transfer. After any
Transfer (including any Permitted Transfer), the Class B Units shall continue to be subject to the
terms and conditions of the LLC Agreement, unless the LLC Agreement specifically provides
otherwise.
B-3
4.
Call by the Company
.
(a) If the employment of the Executive by the Company or any of its Affiliates terminates for
any reason prior to a Company Public Offering (a “
Call Event
”), then the Company shall have
the right and option to purchase (the “
Call Option
”), by delivery of a written notice (the
“
Call Notice
”) to the Executive at any time prior to a Company Public Offering (the
“
Company Call Period
”), and the Executive and the Executive’s Permitted Transferees (the
“
Call Group
”) shall be required to sell, at the option of the Company, all or any portion
of the Class B Units, in each case, that were originally issued by the Company to the Executive and
that were owned by the Executive and his Permitted Transferees on the date of such Call Event and
not otherwise forfeited in accordance with the terms of the LLC Agreement (collectively, the
“
Call Securities
”), at a price per Class B Unit equal to the Call Price of such Class B
Units as of the first Business Day immediately preceding the date on which the Call Notice was
given.
(b) The closing of any purchase of Call Securities by the Company from the Call Group pursuant
to this Section 4 shall take place at the principal office of the Company within thirty (30) days
after the date on which the Call Notice with respect to such Call Group is given. At such closing,
the members of the Call Group shall deliver to the Company, against payment for the Call
Securities, certificates evidencing the Call Securities, if any and as applicable, duly endorsed
with unit powers, free and clear of all Claims and Encumbrances. All of the foregoing deliveries
shall be deemed to be made simultaneously and none shall be deemed completed until all have been
completed.
(c) If the Company does not elect to exercise the Call Option in accordance with the
provisions of this Section 4 by delivering a Call Notice within the Company Call Period, then the
Call Option provided in this Section 4 shall terminate.
5.
Tag Along
. Subject to Section 5(c) of this
Exhibit B
, no holder of Class A Units
shall Transfer Class A Units to a third party without complying with the terms and conditions set
forth in this Section 5, as applicable.
(a) Any of the Sponsor Holders (collectively, the “
Initiating Unitholder
”) desiring to
Transfer more than fifty percent (50%) of the Class A Units held by the Sponsor Holders in a single
transaction or a series of similar transactions, shall give not less than ten (10) Business Days
prior written notice of such intended Transfer to each holder of Class B Units and to the Company.
Such notice (the “
Participation Notice
”) shall set forth the terms and conditions of such
proposed Transfer, including the name of the prospective Transferee, the number of Class A Units
proposed to be Transferred (the “
Participation Securities
”) by the Initiating Unitholder,
the purchase price per Unit proposed to be paid therefor and the payment terms and type of Transfer
to be effectuated. Within five (5) Business Days following the delivery of the Participation
Notice by the Initiating Unitholder to each holder of Class B Units and to the Company, each holder
of Class B Units shall have the right, by notice in writing to the Initiating Unitholder and to the
Company, to elect to Transfer to the purchasers in such proposed Transfer (upon the same terms and
conditions as the Initiating Unitholder) up to that number of Class B Units owned by such holder of
Class B Units (each holder of Class B Units making such election, a “Participating Offeree”) as
shall equal the product of (x) a fraction, the numerator of
B-4
which is the number of Class B Units owned by such Participating Offeree as of the date of
such proposed Transfer and the denominator of which is the aggregate number of outstanding Class A
Units and Class B Units owned as of the date of such Participation Notice by each Initiating
Unitholder and by all Participating Offerees, multiplied by (y) the number of Participation
Securities. The amount of Participation Securities to be Transferred by any Initiating Unitholder
shall be ratably reduced to the extent necessary to provide for such sales of Class B Units by
Participating Offerees. The consideration to be received by the Participating Offerees in respect
of the Class B Units to be sold to the prospective Transferee shall be determined based upon (i)
the deemed fair market value of the Company implied by the price to be paid by the prospective
Transferee for the Class A Units and (ii) the resulting relative values of the Class A Units and
Class B Units assuming the Company is liquidated and the net proceeds are distributed to the
holders of Units in accordance with Section 8.02 of the LLC Agreement.
(b) At the closing of any proposed Transfer in respect of which a Participation Notice has
been delivered, the Initiating Unitholder, together with all Participating Offerees, as the case
may be, shall deliver to the proposed Transferee certificates evidencing the Units, if any and as
applicable, to be sold, free and clear of all Claims and Encumbrances, together with unit powers
duly endorsed, and shall receive in exchange therefor the consideration to be paid or delivered by
the prospective Transferee in respect of such Units as described in the last sentence of Section
5(a) of this
Exhibit B
. In connection with any such Transfer, (i) the representations and
warranties of a Participating Offeree shall be limited to matters that relate specifically to such
Participating Offeree such as due organization and authorization, no violation, title and ownership
and investor status, and such Participating Offeree shall have no obligation to make
representations and warranties as to the Company or other holders of Units;
provided, however,
that
each Participating Offeree may be required to indemnify the Transferee on a several basis on terms
no less favorable than the indemnification provided by the Initiating Unitholder to the Transferee,
which such indemnification liability for all matters other than unit title and ownership shall not
exceed the value of the consideration received by the Participating Offeree in connection with such
Transfer.
(c) The provisions of this Section 5 shall not apply to (i) other Permitted Transfers, (ii)
any Transfer pursuant to or after a Company Public Offering and (iii) Exempt Transfers.
6.
Drag Along
.
(a) If one or more Sponsor Holders elect to Transfer to any Person or Persons in a bona fide
arms’-length transaction or series of related transactions more than 50% of the total number of
outstanding Class A Units held by the Sponsor Holders, pursuant to which each holder of Class A
Units receives the consideration in accordance with Section 6(d) of this
Exhibit B
(a
“
Sale Event
”), then, upon ten (10) Business Days written notice from the Sponsor Holders to
the holders of Class B Units, which notice shall include reasonable details of the proposed
Transfer, including the proposed time and place of closing, the consideration to be received and
the percentage of the Sponsor Holders’ Class A Units to be Transferred (the “
Sale
Request
”), each holder of Class B Units shall be obligated to, and shall (i) Transfer and
deliver, or cause to be Transferred and delivered, to such Person the same percentage of Class B
Units as the percentage of Class A Units the Sponsor Holders are Transferring in the same
transaction at
B-5
the closing thereof (and will deliver certificates for all of such Units, if any and as
applicable, at the closing, free and clear of all Claims and Encumbrances, together with unit
powers duly endorsed); (ii) execute, deliver and agree to be bound by the terms of any agreement
for the Transfer of such Class B Units and any other agreement, instrument or certificates
necessary to effectuate such Transfer;
provided
,
however
, that, notwithstanding anything herein to
the contrary, in connection with any Transfer pursuant to this Section 6, the representations and
warranties to be made by each holder of Class B Units in such agreement shall be limited to matters
that specifically relate to such holder such as due organization and authorization, no violation,
title and ownership and investor status, and each holder shall have no obligation to make
representations and warranties as to the Company or others; and
provided, further,
that each holder
of Class B Units may be required to indemnify the Transferee on a several basis on terms no less
favorable than the indemnification provided by the Sponsor Holders to the Transferee, which such
indemnification liability for all matters other than unit title and ownership shall not exceed the
value of the consideration received by each holder of Class B Units in connection with such
Transfer.
(b) The provisions of Section 6(a) of this
Exhibit B
shall not apply to any Transfer
(i) pursuant to or after a Company Public Offering or (ii) pursuant to any other Permitted
Transfer.
(c) If the Sale Event has not occurred within 90 days of the date of the Sale Request, the
provisions of Section 6(a) of this
Exhibit B
applicable to such Sale Event shall, if such
Sale Event is thereafter sought to be completed, be reapplied to such Sale Event.
(d) If a Sale Event occurs, the Sponsor Holders may exercise their right under Section 6(a) of
this
Exhibit B
only if the consideration to be received in respect of Class B Units in
connection with the Sale Event shall be determined based upon (i) the deemed fair market value of
the Company implied by the value of the consideration to be received in the Sale Event and (ii) the
resulting relative values of the Class A Units and Class B Units assuming the Company is liquidated
and the net proceeds are distributed to the holders of Units in accordance with Section 8.02.
7.
Conversion of Class B Units Prior to a Company Public Offering
. On a date determined by
the Board (the “
Conversion Date
”), which Conversion Date shall be within 60 Business Days
of a Company Public Offering, all Class B Units shall automatically convert into Class A Units.
The number of Class A Units to be issued upon conversion of the Class B Units shall be determined
by the Board based upon (i) the Equity Value as of the Conversion Date and (ii) the resulting
relative values of the Class A Units and Class B Units assuming the Company is liquidated on the
Conversion Date and the Equity Value is distributed to the holders of Units in accordance with
Section 8.02.
8.
Divorce
. This Section 8 applies only with respect to the Class B Units upon the divorce of
a holder of the Class B Units.
(a) Upon the divorce of a holder of the Class B Units, if the holder does not succeed to the
entire community property or other interest of the holder’s spouse in the Class B Units, the
holder’s spouse shall be deemed to have made an irrevocable offer to sell the
B-6
community property or other interest of such spouse in the Class B Units (the “
Affected
Interest
”) in accordance with this Section 8. Within 90 days after the holder’s divorce, the
holder shall give written notice of such divorce (for purposes of this Section 8, the “
Divorce
Notice
”) to the Board specifically referring to this Section 8 and setting forth the amount of
the Affected Interest. If the holder fails to give the Divorce Notice within the period and in the
manner specified above, the Board shall give the Divorce Notice to the holder and to the holder’s
spouse as soon as is practicable after the Board receives actual notice of such holder’s divorce.
The failure of the holder or the Board to give a Divorce Notice shall in no way prevent the Company
from exercising its rights under this Section 8.
(b) The holder shall have the right and option, exercisable for 90 days after the receipt of
the Divorce Notice, to purchase all or any portion of the Affected Interest. A failure by the
holder to exercise such right and option within such 90-day period shall be deemed to constitute
notification to the holder’s spouse and the Company of the holder’s decision not to exercise the
holder’s right and option to purchase such Affected Interest pursuant to this Section 8. The
holder may exercise this option by giving written notice to the holder’s spouse and to the Company
within such 90-day period.
(c) If the holder does not exercise the right and option to purchase all of the Affected
Interest pursuant to this Section 8, the Company or its designee shall have the right and option to
purchase all or any portion of the Affected Interest not elected to be purchased by the holder.
The right and option of the Company or its designee shall be exercisable for 90 days after the
expiration of the 90-day period during which the holder may exercise the option pursuant to Section
8(b) of this
Exhibit B
. The failure of the Company or its designee to exercise its option
within such 90-day period shall be deemed to constitute notification to the holder and the holder’s
spouse of the Company’s decision not to exercise its right and option to purchase such Affected
Interest pursuant to this Section 8.
(d) The purchase price to be paid for the Affected Interest pursuant to this Section 8 shall
be the fair market value of such Affected Interest as determined by the Board based on (i) the
Equity Value as of the end of the last fiscal quarter and (ii) the resulting relative values of the
Class A Units and Class B Units assuming the Company is liquidated on such date and the Equity
Value is distributed to the holders of Units in accordance with Section 8.02.
(e) The closing of any purchase of an Affected Interest by the holder and/or the Company
pursuant to this Section 8 shall be held at the principal office of the Company within 10 days
following exercise of the option to acquire the Affected Interest pursuant to Section 8(b) or
Section 8(c) of this
Exhibit B
, as the case may be. At the closing, the holder’s spouse
shall execute and deliver to the holder and/or to the Company, as applicable, instruments of
Transfer and assignment of the Affected Interest against delivery of the purchase price for such
Affected Interest by check. At the closing of such sale, the holder’s spouse shall represent and
warrant to the holder and/or the Company, as applicable, that (i) he or she is the beneficial owner
of the Affected Interest, free and clear of all Claims and Encumbrances, (ii) he or she has the
full right, power, and capacity to Transfer and deliver the Affected Interest in accordance with
the terms hereof and (iii) upon payment of the purchase price for the Affected Interest in
accordance with the terms of this Section 8, the holder or the Company, as applicable, shall
B-7
acquire good and marketable title to the Affected Interest, free and clear of all Claims and
Encumbrances.
(f) If the holder and/or the Company or its designee do not purchase all of the Affected
Interest pursuant to this Section 8, the holder’s spouse shall be regarded as an Assignee of that
portion of the Affected Interest not so purchased (the “
Unpurchased Spousal Interest
”) and
shall be subject to the terms, conditions and restrictions contained in this
Exhibit B
with
respect to such Unpurchased Spousal Interest;
provided
,
however,
that, as a condition to the
holder’s spouse being regarded as an Assignee as described in this Section 8(f), the holder’s
spouse shall execute and deliver an instrument relating to such Unpurchased Spousal Interest
containing terms, conditions and restrictions substantially similar to those contained in this
Exhibit B
. The holder’s spouse shall be entitled to share in distributions and allocations
in respect of such Unpurchased Spousal Interest as an Assignee in accordance with the terms of the
LLC Agreement.
B-8
Exhibit
10.1
Execution Version
CREDIT AGREEMENT
Dated as of July 6, 2010
among
OXFORD MINING COMPANY, LLC
(as Borrower),
THE INITIAL LENDERS, INITIAL ISSUING BANK AND
SWING LINE BANK NAMED HEREIN
(as Initial Lenders, Initial Issuing Bank and Swing Line Bank),
and
CITICORP USA, INC.
(as Administrative Agent)
BARCLAYS BANK PLC AND THE HUNTINGTON NATIONAL BANK
(as Co-Syndication Agents)
and
FIFTH THIRD BANK AND COMERICA BANK
(
as Co-Documentation Agents
)
and
CITIGROUP GLOBAL MARKETS INC. AND BARCLAYS CAPITAL
(as Joint Lead Arrangers and Joint Bookrunners)
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
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4
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Section 1.01
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Certain Defined Terms
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4
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Section 1.02
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Computation of Time Periods; Other Definitional Provisions
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39
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Section 1.03
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Accounting Terms
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39
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ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
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39
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Section 2.01
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The Advances and the Letters of Credit
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39
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Section 2.02
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Making the Advances
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41
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Section 2.03
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Issuance of and Drawings and Reimbursement Under Letters of Credit
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44
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Section 2.04
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Repayment of Advances
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46
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Section 2.05
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Optional Termination or Reduction of the Commitments
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47
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Section 2.06
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Prepayments
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48
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Section 2.07
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Interest
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50
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Section 2.08
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Fees
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51
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Section 2.09
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Conversion of Borrowings
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53
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Section 2.10
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Increased Costs, Etc.
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54
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Section 2.11
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Payments and Computations
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55
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Section 2.12
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Taxes
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57
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Section 2.13
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Sharing of Payments, Etc.
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59
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Section 2.14
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Use of Proceeds
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60
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Section 2.15
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Defaulting Lenders
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60
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Section 2.16
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Evidence of Debt
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62
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Section 2.17
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Replacement of Certain Lenders
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63
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Section 2.18
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Increase in the Aggregate Commitments
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64
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ARTICLE III CONDITIONS OF LENDING
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66
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Section 3.01
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Conditions Precedent
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66
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Section 3.02
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Conditions Precedent to Each Borrowing, Commitment Increase and Issuance and Renewal
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69
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Section 3.03
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Determinations Under Section 3.01
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71
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ARTICLE IV REPRESENTATIONS AND WARRANTIES
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71
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Section 4.01
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Representations and Warranties of Borrower
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71
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ARTICLE V COVENANTS
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79
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Section 5.01
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Affirmative Covenants
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79
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Section 5.02
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Negative Covenants
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83
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Section 5.03
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Reporting Requirements
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89
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Section 5.04
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Financial Covenants
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92
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ARTICLE VI EVENTS OF DEFAULT
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94
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Section 6.01
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Events of Default
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94
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Section 6.02
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Actions in Respect of the Letters of Credit Upon Default
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96
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ARTICLE VII ADMINISTRATIVE AGENT
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97
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Section 7.01
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Appointment and Authority
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97
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Section 7.02
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Administrative Agent Individually
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97
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Section 7.03
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Duties of Administrative Agent; Exculpatory Provisions
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99
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Section 7.04
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Reliance by Administrative Agent
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99
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Section 7.05
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Indemnification
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100
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i
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Section 7.06
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Delegation of Duties
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101
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Section 7.07
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Resignation of Administrative Agent, Issuing Bank or Swing Line Bank
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101
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Section 7.08
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Non-Reliance on Administrative Agent and Other Lender Parties
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103
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Section 7.09
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No Other
Duties, Etc.
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104
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ARTICLE VIII MISCELLANEOUS
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105
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Section 8.01
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Amendments, Etc.
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105
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Section 8.02
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Notices
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106
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Section 8.03
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Posting of Approved Electronic Communications
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107
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Section 8.04
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No Waiver; Remedies
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108
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Section 8.05
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Costs and Expenses
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108
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Section 8.06
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Right of Set-off
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110
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Section 8.07
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Binding Effect
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111
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Section 8.08
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Assignments and Participations
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111
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Section 8.09
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Execution in Counterparts
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114
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Section 8.10
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No Liability of Issuing Bank
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114
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Section 8.11
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Confidentiality
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115
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Section 8.12
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Treatment of Information
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116
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Section 8.13
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Jurisdiction, Etc.
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118
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Section 8.14
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Governing Law
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118
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Section 8.15
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MLP and Subsidiary Guarantors as Limited Parties; Non-Recourse to the General
Partner and Associated Persons
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118
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Section 8.16
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Patriot Act Notice
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118
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Section 8.17
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Survival
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119
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Section 8.18
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Entire Agreement
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119
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Section 8.19
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WAIVER OF JURY TRIAL
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119
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ii
Exhibits
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A-1
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Form of Revolving Note
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A-2
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Form of Term Note
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B
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Form of Notice of Borrowing
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C
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Form of Assignment and Acceptance
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D-1
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Form of MLP Guaranty
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D-2
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Form of Subsidiary Guaranty
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E
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Form of Solvency Certificate
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F
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Form of Compliance Certificate
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Schedules
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I
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Lending Officer and Commitment Information
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II
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Subsidiary Guarantors
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2.03(f)
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Existing Letters of Credit
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4.01(a)
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Capital Stock of Oxford Mining Company, LLC
|
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4.01(b)
|
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Loan Party Subsidiaries
|
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4.01(d)
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Authorization, Approval, Action, Notice and Filing Requirements
|
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4.01(f)
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Litigation
|
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4.01(n)
|
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Plans and Multiemployer Plans
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4.01(o)
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Environmental Matters
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4.01(p)
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Open Year Tax Returns
|
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4.01(s)
|
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Real Property
|
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4.01(t)
|
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Loan Party Investments
|
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5.01(p)
|
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Post Closing Covenants
|
|
5.02(a)
|
|
Existing Liens
|
|
5.02(c)
|
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Existing Debt
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iii
CREDIT AGREEMENT
This
CREDIT AGREEMENT
(this “
Agreement
”) is dated and entered into as of July 6, 2010 among
OXFORD MINING COMPANY, LLC
, an Ohio limited liability company (the “
Borrower
”),
THE BANKS,
FINANCIAL INSTITUTIONS AND OTHER INSTITUTIONAL LENDERS LISTED ON THE SIGNATURE PAGES HEREOF AS THE
LENDERS
(the “
Initial Lenders
”),
THE BANK LISTED ON THE SIGNATURE PAGES HEREOF AS THE INITIAL
ISSUING BANK
(the “
Initial Issuing Bank
”) and
THE SWING LINE BANK
(as hereinafter defined
and together with the Initial Lenders and the Initial Issuing Bank, the “
Lender Parties
”), and
CITICORP USA, INC.,
as administrative agent (together with any successor administrative agent
appointed pursuant to
Article VII
, the “
Administrative Agent
”).
PRELIMINARY STATEMENT:
The Borrower has requested that, upon and after the Effective Date (as hereinafter defined),
the Lender Parties on the terms and conditions of this Agreement make available to the Borrower a
credit facility of up to $175,000,000 (or, to the extent increased in accordance with
Section
2.18
hereof, up to $200,000,000), (1) to refinance certain Existing Debt (as hereinafter
defined) of the Borrower and pay transaction fees and expenses in connection herewith, and (2) to,
from time to time, lend to the Borrower and issue Letters of Credit for the account of the
Borrower, (a) to provide working capital for the Borrower and its Subsidiaries, (b) to fund the
Borrower’s payment of cash distributions to the holders of the MLP Interests (as hereinafter
defined) and (c) to provide funding for other general business purposes of the Borrower and its
Subsidiaries (including, without limitation, acquisitions and capital expenditures). The Lender
Parties have indicated their willingness to lend such amounts on the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01
Certain Defined Terms
.
As used in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):
“
Acceptable Bank
” means (a) any bank or trust company (i) which is organized under the
laws of the United States or any State thereof, (ii) which has capital, surplus and
undivided profits aggregating at least $1,000,000,000, and (iii) (A) whose long-term
unsecured debt obligations (or the long-term unsecured debt obligations of the holding
company owning all of the capital stock of such bank or trust company) shall have been
given a rating of “AA-” or better by S&P or “Aa3” or better by Moody’s or an equivalent
rating by any other credit rating agency of recognized national standing or (B) the
Annex A - Page 4
commercial paper or other short-term unsecured debt obligations of which (or the short-term
unsecured debt obligations of the holding company owning all of the capital stock of such
bank or trust company) shall have been given a rating of “Al “ or better by S&P or “Prime 1”
or better by Moody’s or an equivalent rating by any other credit rating agency of recognized
national standing or (b) any Lender Party.
“
Acceptable Broker-Dealer
” means any Person other than a natural person (a) which is
registered as a broker or dealer pursuant to the Exchange Act and (b) whose long-term
unsecured debt obligations shall have been given a rating of “AA-” or better by S&P or “Aa3”
or better by Moody’s or an equivalent rating by any other credit rating agency of recognized
national standing.
“
Activities
” has the meaning specified in
Section 7.02(b)
.
“
Additional Lender
” has the meaning specified in
Section 2.18
.
“
Adjusted EBITDA
” means, with respect to any period, (a) Net Income, plus, to the
extent deducted in determining such Net Income, (b) (i) depletion, depreciation and
amortization, (ii) interest expense and (iii) non-cash equity compensation expense, minus
(c) (i) amortization of below market coal sales contracts and (ii) gain from purchase of
business, plus (d) (i) IPO Fees and Expenses, and (ii) one time, non-recurring fees, costs
and expenses outside the ordinary course of business in excess of $100,000 paid by the
Borrower in any Fiscal Year in connection with the transactions contemplated by and for
compliance with this Agreement, provided such amount does not exceed $2,000,000 in the
aggregate from the Effective Date to the Term Loan Maturity Date, plus (e) all lease
payments prior to the closing of the IPO, on operating leases which are bought out and
terminated in connection with the closing of the IPO which in the aggregate does not exceed
$35,000,000, where each of the items listed in clauses (b) and (c) shall refer to the
corresponding item reflected in the Consolidated statement of operations of the MLP and its
Subsidiaries; provided that, to the extent a portion of the amount of any of the items
listed in clauses (b) and (c) is attributable to a Consolidated Venture, only the
Consolidated Venture Percentage Share of such portion attributable to the Consolidated
Venture shall be included in such item; and provided, further, that the amounts of any of
the items included in clauses (b) and (c) and attributable to Consolidated Ventures in
accordance with the immediately foregoing proviso shall be equal to the amounts thereof
which were deducted in determining the Net Income amount from Consolidated Ventures included
in the Net Income amount under clause (a).
“
Administrative Agent
” has the meaning specified in the preamble to this Agreement.
“
Administrative Agent’s Account
” means the account of the Administrative Agent, Account
No. 36852248, or such other account as the Administrative Agent shall specify in writing to
the Lender Parties.
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“
Administrative Services Agreement
” means that certain Administrative and Operational
Services Agreement dated August 24, 2007 by and among the MLP, the Borrower and the General
Partner.
“
Administrative Questionnaire
” means an Administrative Questionnaire in a form supplied
by the Administrative Agent.
“
Advance
” means a Revolving Credit Advance, a Term Loan Advance, a Swing Line Advance
or a Letter of Credit Advance.
“
Affiliate
” means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person or is a director or
officer of such Person. For purposes of this definition, the term “control” (including the
terms “controlling”, “controlled by” and “under common control with”) of a Person means the
possession, direct or indirect, of the power to vote 20% or more of the Voting Stock of such
Person or to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise. Unless the context
otherwise clearly requires, any reference to an “Affiliate” is a reference to an Affiliate
of the Borrower, provided that none of CONSOL or any of its Affiliates shall be Affiliates
of Harrison by virtue of CONSOL’s ownership of a 49% membership interest in Harrison.
“
Agent’s Group
” has the meaning specified in
Section 7.02(b)
.
“
Agreement
” has the meaning specified in the preamble to this Agreement.
“
Annual Production Amount
” has the meaning specified in
Section 5.01(m)
.
“
Applicable Lending Office
” means, with respect to each Lender Party, such Lender
Party’s Domestic Lending Office in the case of a Base Rate Advance and such Lender Party’s
Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
“
Applicable Margin
” means a percentage per annum for Eurodollar Rate Advances and Base
Rate Advances determined by reference to the Leverage Ratio as set forth below:
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Eurodollar Rate
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Base Rate
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Leverage Ratio
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Advances
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Advances
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Level I
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3.75
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%
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2.75
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%
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≤ 1.00x
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Level II
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4.00
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%
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3.00
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%
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> 1.00x ≤ 1.50x
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Level III
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4.25
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%
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3.25
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%
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> 1.50x
≤ 2.00x
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Level IV
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4.50
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%
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3.50
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%
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>2.00x
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The Applicable Margin for each Advance shall be determined by reference to the Leverage
Ratio in effect from time to time, which ratio shall be determined by reference to the
financial statements most recently delivered in accordance with
Section 5.03(b)
or
Section 5.03(c)
, as the case may be. In the event that any financial statement is
not delivered pursuant to
Section 5.03(b)
or
Section 5.03(c)
, as the case
may be, or is shown to be inaccurate when delivered (regardless of whether this Agreement or
the Commitments are in effect when such inaccuracy is discovered), and upon delivery of such
financial statements or correction of such inaccuracy, would result in the application of a
higher Applicable Margin for any period (an “
Applicable Period
”) than the Applicable Margin
applied for such Applicable Period, and only in such case, then the Borrower shall
immediately (i) in the case of inaccurate financial statements, deliver to the
Administrative Agent corrected financial statements for such Applicable Period, (ii) in
either case, determine the Applicable Margin for such Applicable Period based upon the
corrected financial statements, and (iii) in either case, immediately pay to the
Administrative Agent the accrued additional amount owing as a result of such increased
Applicable Margin for such Applicable Period without further action by the Administrative
Agent, any Lender or the Issuing Bank, which payment shall be promptly applied by the
Administrative Agent in accordance with
Section 2.11(a)
. This provision is in
addition to the rights of the Administrative Agent and the Lenders with respect to
Section 2.11(e)
and their other respective rights under this Agreement.
“
Applicable Percentage
” means a percentage per annum determined by reference to the
Leverage Ratio as set forth below:
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Applicable
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Leverage Ratio
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Percentage
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Level I
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0.500
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%
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≤ 1.00x
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Level II
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0.625
|
%
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> 1.00x
≤ 1.50x
|
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|
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Level III
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0.750
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%
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> 1.50x
≤ 2.00x
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Level IV
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0.750
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%
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>2.00x
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The Applicable Percentage shall be determined by reference to the Leverage Ratio, in effect
from time to time, which ratio shall be determined by reference to the financial statements
most recently delivered in accordance with
Section 5.03(b)
or
Section
5.03(c)
, as the case may be. In the event that any financial statement is not delivered
pursuant to
Section 5.03(b)
or
Section 5.03(c)
, as the case may be, or is
shown to be inaccurate when delivered (regardless of whether this Agreement or the
Commitments are in effect when such inaccuracy is discovered), and upon delivery of such
financial statements or corrections of such inaccuracy, would result in the application of a
higher Applicable Percentage for an Applicable Period than the Applicable Percentage applied
for such Applicable Period, and only in such case, then the Borrower shall immediately (i)
in the case of inaccurate financial statements, deliver to the Administrative Agent
corrected
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financial statements for such Applicable Period, (ii) in either case, determine the
Applicable Percentage for such Applicable Period based upon the corrected financial
statements, and (iii) in either case, immediately pay to the Administrative Agent the
accrued additional amount owing as a result of such increased Applicable Percentage for such
Applicable Period without further action by the Administrative Agent, any Lender or the
Issuing Bank, which payment shall be promptly applied by the Administrative Agent in
accordance with
Section 2.11(a)
. This provision is in addition to the rights of the
Administrative Agent and the Lenders with respect to
Section 2.11(e)
and their other
respective rights under this Agreement.
“Applicable Period”
has the meaning specified in the definition of “Applicable Margin.”
“
Appropriate Lender
” means, at any time, with respect to (a) the Revolving Credit
Facility, a Lender that has a Commitment with respect to the Revolving Credit Facility at
such time, (b) the Term Loan Facility, a Lender that has made a Term Loan Advance pursuant
to
Section 2.01(b)
or
Section 2.18
that is outstanding at such time, (c) the
Letter of Credit Facility, (i) the Issuing Bank and (ii) to the extent the other Lenders
with Revolving Credit Commitments have made Letter of Credit Advances pursuant to
Section 2.03(c)
that are outstanding at such time, each such other Lender, and (d)
the Swing Line Facility, (i) the Swing Line Bank and (ii) to the extent the other Lenders
with Revolving Credit Commitments have made Swing Line Advances pursuant to
Section
2.02(b)
that are outstanding at such time, each such other Lender.
“
Approved Electronic Communication
” means, for purposes of identifying all
Communications which may be made on the Approved Electronic Platform, each Communication
that any Obligor is obligated to, or otherwise chooses to, provide to the Administrative
Agent pursuant to any Loan Document or the transactions contemplated therein and/or in
connection with compliance therewith, including any financial statement, financial and other
report, notice, request, certificate and other information material; provided, however,
that, solely with respect to delivery of any such Communication by any Obligor to the
Administrative Agent and without limiting or otherwise affecting either the Administrative
Agent’s right to effect delivery of such Communication by posting such Communication to the
Approved Electronic Platform or the protections afforded hereby to the Administrative Agent
in connection with any such posting, “Approved Electronic Communication” shall exclude any
Communication which is (i) a Notice of Borrowing, Letter of Credit request, Notice of Swing
Line Borrowing, notice of Conversion or continuation, and any other notice, demand,
communication, information, document and other material relating to a request for a new, or
a conversion of an existing, Borrowing, (ii) a notice pursuant to
Section 2.06
and
any other notice relating to the payment of any principal or other amount due under any Loan
Document prior to the scheduled date therefor, (iii) a notice of any Default or Event of
Default and (iv) a notice, demand, communication, information, document and other material
required to be delivered to satisfy any of the conditions set forth in
Article III
or any other condition to any Borrowing or other extension of credit hereunder or any
condition precedent to the effectiveness of this Agreement (provided that, for avoidance of
doubt,
8
any such excluded Communication listed in clause (i) through clause (iv) may be made by
electronic mail as provided in Section 8.02(b)(iv)).
“
Approved Electronic Platform
” has the meaning specified in
Section 8.03(a)
.
“
Asset Sale
” has the meaning specified in
Section 5.02(f)
.
“
Assignment and Acceptance
” means an assignment and acceptance entered into by a Lender
Party and an Eligible Assignee, and accepted by the Administrative Agent, in accordance with
Section 8.08
and in substantially the form of
Exhibit C
hereto.
“
Associated Persons
” has the meaning specified in
Section 8.15
.
“
Availability Period
” means, in regard to the Revolving Credit Facility, the period
from and including the Effective Date to but excluding the Revolving Credit Termination
Date.
“
Available Amount
” means, as to any Letter of Credit at any time, the maximum amount
available to be drawn under such Letter of Credit at such time (assuming compliance at such
time with all conditions to drawing).
“
Bank Products
” means each and any of the following bank services provided to any Loan
Party by a Lender or any of its Affiliates: (a) commercial credit cards, (b) stored value
cards and (c) treasury management services (including, without limitation, controlled
disbursements, automated clearinghouse transactions, return items, overdrafts and interstate
depository network services).
“
Bank Products Obligations
” means, with respect to the Loan Parties, any and all
obligations of the Loan Parties, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor) in connection with Bank Products.
“
Base Rate
” means a fluctuating interest rate per annum in effect from time to time,
which rate per annum shall at all times be equal to the greatest of:
(a) the rate of interest announced publicly by Administrative Agent in New
York, New York, from time to time, as its prime rate;
(b) 1/2 of 1% per annum above the Federal Funds Rate; or
(c) the one month Eurodollar Rate plus 1.0%.
“
Base Rate Borrowing
” means a Borrowing that bears interest as provided in
Section
2.07(a)(i)
.
“
Borrower
” has the meaning specified in the preamble to this Agreement.
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“
Borrower’s Account
” means the account of the Borrower maintained by the Borrower with
Fifth Third Bank at its office at 21 East State Street, Columbus, Ohio 43215, Account No.
7281180575, or such other account as the Borrower shall specify in writing to the
Administrative Agent.
“
Borrowing
” means a Revolving Credit Borrowing, a Term Loan Borrowing or a Swing Line
Borrowing.
“
Business Day
” means a day of the year on which banks are not required or authorized by
law to close in New York City and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London interbank market.
“
Capital Expenditures
” means, for any Person for any period, the sum of, without
duplication, all expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, real property or improvements,
or for replacements or substitutions therefor or additions thereto in accordance with GAAP,
reflected as additions to property, plant or equipment on a balance sheet of such Person.
“
Capital Lease
” means, at any time, a lease with respect to which the lessee is
required concurrently to recognize the acquisition of an asset and the incurrence of a
liability in accordance with GAAP.
“
Capital Lease Obligation
” means, with respect to any Person and a Capital Lease, the
amount of the obligation of such Person as the lessee under such Capital Lease which would,
in accordance with GAAP, appear as a liability on a balance sheet of such Person.
“
Capital Stock
” means, with respect to any Person, any and all shares, units
representing interests, participations, rights in or other equivalents (however designated)
of such Person’s capital stock or other equity interest, including, (a) with respect to
partnerships, partnership interests (whether general or limited) and any other interest or
participation that confers upon a Person the right to receive a share of the profits and
losses of, or distributions of assets of, such partnership, (b) with respect to limited
liability companies, member interests, and (c) with respect to any Person, any rights (other
than debt securities convertible into capital stock or other equity interest), warrants or
options exchangeable for or convertible into such capital stock or other equity interest.
“
Cash Collateralize
” means, in respect of an obligation, provide and pledge (as a first
priority perfected security interest) cash collateral, at a location and pursuant to
documentation in form and substance reasonably satisfactory to the Administrative Agent (and
“
Cash Collateralization
” has a corresponding meaning).
“
Cash Distribution Advance
” means any Advance the proceeds of which are used to make a
cash distribution to holders of the MLP Interests.
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“
Cash Equivalents
” means any of the following, to the extent owned by the Borrower or
any of its Subsidiaries free and clear of all Liens:
(a) United States Governmental Securities maturing within one year from the
date of acquisition;
(b) certificates of deposit, banker’s acceptances or other bank instruments
maturing within one year from the date of acquisition thereof, issued by Acceptable
Banks;
(c) Repurchase Agreements having a maturity of not greater than two years from
the date of acquisition thereof;
(d) obligations of any state of the United States, or any municipality of any
such state, in each case having a rating of “AA” or better by S&P or “Aa2” or better
by Moody’s or an equivalent rating by any other credit rating agency of recognized
national standing; provided that such obligations mature within one year from the
date of acquisition thereof; and
(e) commercial paper maturing in 270 days or less from the date of issuance
which, at the time of acquisition by the Borrower or any Subsidiary, has a rating of
A-l or better by S&P or P1 or better by Moody’s or an equivalent rating by any other
credit rating agency of recognized national standing.
“
CERCLA
” means the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended from time to time.
“
CERCLIS
” means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.
“
Change of Control
” means the occurrence of any of the following: (i) Messrs. Charles
C. Ungurean and Thomas T. Ungurean and their heirs (the “
Ungureans
”) collectively own,
directly or indirectly, less than 15.0% of the outstanding Capital Stock in the General
Partner, (ii) American Infrastructure MLP Fund, L.P. and its affiliated funds and the
Ungureans collectively own, directly or indirectly, less than 50.1% of the outstanding
Capital Stock in the General Partner or otherwise cease to control the General Partner,
(iii) the General Partner ceases to be the general partner of the MLP or (iv) the MLP ceases
to own all of the outstanding Capital Stock of the Borrower.
“
Citibank
” means Citibank, N.A.
“
Coal Business
” means the business of the mining, production, processing,
transportation, marketing, receipt of royalties with respect to the mining and/or sale of
coal.
“
Coal Reserve Base
” has the meaning specified in
Section 5.01(m)
.
11
“
Commission
” means the Securities and Exchange Commission as constituted under the
Securities Exchange Act of 1934, or, if at any time such Commission is not existing and
performing the duties now assigned to it, then the body performing such duties at such time.
“
Commitment
” means a Revolving Credit Commitment, a Term Loan Commitment, a Swing Line
Commitment or a Letter of Credit Commitment. As of the date hereof, the aggregate Revolving
Credit Commitments are $115,000,000 and the aggregate Term Loan Commitments are $60,000,000.
“
Commitment Increase
” has the meaning specified in
Section 2.18(a)
.
“
Compliance Certificate
” means a certificate executed by a Responsible Officer of the
MLP (or the General Partner) in the form of
Exhibit F
attached hereto.
“
Communications
” means each notice, demand, communication, information, document and
other material provided for hereunder or under any other Loan Document or otherwise
transmitted between the parties hereto relating this Agreement, the other Loan Documents,
any Loan Party or its Affiliates, or the transactions contemplated by this Agreement or the
other Loan Documents including, without limitation, all Approved Electronic Communications.
“
CONSOL
” means CONSOL of Ohio LLC, an Ohio limited liability company.
“
Consolidated
” refers to the consolidation of accounts in accordance with GAAP.
“
Consolidated Debt
” means, as of any date of determination, the aggregate outstanding
principal amount of all Debt of the MLP and its Subsidiaries outstanding on such date, after
eliminating all offsetting debits and credits between the MLP and its Subsidiaries and all
other items required to be eliminated in the course of the preparation of Consolidated
financial statements of the MLP and its Subsidiaries.
“
Consolidated Interest Expense
” means, as of any date of determination for any
applicable period, the following (in each case, eliminating all offsetting debits and
credits between the MLP and its Subsidiaries and all other items required to be eliminated
in the course of the preparation of Consolidated financial statements of the MLP and its
Subsidiaries): all interest in respect of Debt of the MLP and its Subsidiaries whether paid
or accrued (including imputed interest on Capital Lease Obligations), added back in
determining Adjusted EBITDA for such period.
“
Consolidated Net Tangible Assets
” means, with respect to any Person, at any date, the
Net Tangible Assets of such Person and its Subsidiaries for the period most recently ended
for which financial statements are required to be delivered pursuant to
Section
5.03(b)
or
Section 5.03(c)
, as the case may be, determined on a Consolidated
basis.
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“
Consolidated Venture
” means any Subsidiary which is not wholly owned by the MLP and
its Subsidiaries. For the avoidance of doubt, as of the Effective Date, Harrison is a
Consolidated Venture.
“
Consolidated Venture Percentage Share
” means the percentage share of the aggregate
outstanding equity of a Consolidated Venture that is held by the MLP and its Subsidiaries.
For this purpose, as of the Effective Date, the Consolidated Venture Percentage Share of
Harrison is 51%.
“
Constitutive Documents
” means, with respect to any Person, the certificate of
incorporation or registration or formation (including, if applicable, certificate of change
of name), articles of incorporation or association, articles of organization, certificate of
formation, memorandum of association, charter, bylaws, partnership agreement, trust
agreement, joint venture agreement, operating, members or limited liability company
agreement, joint venture agreement or one or more similar agreements, instruments or
documents constituting the organization or formation of such Person.
“
Conversion
”, “
Convert
” and “
Converted
” each refer to a conversion of Advances of one
Type into Advances of the other Type pursuant to
Section 2.07(d)
,
Section
2.09
or
Section 2.10
.
“
Debt
” means, with respect to any Person, without duplication:
(a) its liabilities for borrowed money, whether direct or contingent;
(b) its liabilities for the deferred purchase price of property acquired by
such Person (excluding accounts payable arising in the ordinary course of business
but including, without limitation, all liabilities created or arising under any
conditional sale or other title retention agreement with respect to any such
property);
(c) its Capital Lease Obligations;
(d) all liabilities secured by any Lien with respect to any property owned by
such Person (whether or not it has assumed or otherwise become liable for such
liabilities);
(e) all its liabilities in respect of letters of credit or instruments serving
a similar function or surety bonds issued or accepted for its account by banks or
other financial institutions (whether or not representing obligations for borrowed
money), other than the following excluded liabilities that are incurred in the
ordinary course of business of such Person:
(i) liabilities in respect of surety bonds (other than liabilities in
respect of Surety Bond Support Letters of Credit) where such surety bonds
are issued to support such Person’s Ordinary Course Obligations,
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(ii) liabilities in respect of letters of credit or instruments serving
a similar function (including Surety Bond Support Letters of Credit) which
are issued to support such Person’s Ordinary Course Obligations aggregating
no more than $20,000,000 at any time outstanding for all of the liabilities
contemplated by this clause (ii); or
(iii) which are issued in respect of current trade payables of such
Person;
(f) Swaps of such Person, to the extent required to be reflected on a balance
sheet as Debt of such Person prepared as of any date of determination in accordance
with GAAP;
(g) Preferred Stock of Subsidiaries owned by Persons other than the Loan
Parties; and
(h) any Guaranty of such Person with respect to liabilities of a type described
in any of clauses (a) through (g) hereof.
Debt incurred to finance any reserve acquisition by a Consolidated Venture shall be
included in the foregoing definition only after such time as any permitting contingencies in
connection with such acquisition are satisfied, and such Debt of a Consolidated Venture
shall at any point in time be net any cash on hand with respect to such Consolidated
Venture.
“
Default
” means any Event of Default or any event that would constitute an Event of
Default but for the requirement that notice be given or time elapse or both.
“
Defaulting Lender
” means, at any time, a Lender as to which the Administrative Agent
has notified the Borrower that (i) such Lender has failed for three Business Days or more to
comply with its obligations under this Agreement to make an Advance or make a payment to the
Issuing Bank in respect of an L/C Disbursement or make a payment to the Swing Line Bank in
respect of a Swing Line Advance (each a “
funding obligation
”), or (ii) such Lender has
notified the Administrative Agent, or has stated publicly, that it will not comply with any
such funding obligation, or (iii) a Lender Insolvency Event has occurred and is continuing
with respect to such Lender (
provided
that neither the reallocation of funding
obligations provided for in
Section 2.15
as a result of a Lender being a Defaulting
Lender nor the performance by Non-Defaulting Lenders of such reallocated funding obligations
shall by themselves cause the relevant Defaulting Lender to become a Non-Defaulting Lender).
Any determination that a Lender is a Defaulting Lender under clauses (i) through (iii)
above shall be made by the Administrative Agent in its sole discretion acting in good faith.
The Administrative Agent will promptly send to all parties hereto a copy of any notice to
the Borrower referred to above.
“
Disclosed Litigation
” has the meaning specified in
Section 3.01(b)
.
14
“
Domestic Lending Office
” means, with respect to any Lender Party, the office of such
Lender Party specified as its “Domestic Lending Office” opposite its name on
Schedule
I
hereto or in the Incremental Amendment or the Assignment and Acceptance pursuant to
which it became a Lender Party, as the case may be, or such other office of such Lender
Party as such Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
“
Domestic Subsidiary
” means any Subsidiary other than a Foreign Subsidiary.
“
EFA Issuing Bank
” means Fifth Third Bank, the Lender who issued the Existing Letters
of Credit under the Existing Facility Agreement.
“
Effective Date
” means the first date on which the conditions set forth in
Section
3.01
shall have been satisfied.
“
Eligible Assignee
” means (a) with respect to any Facility (other than the Letter of
Credit Facility) (i) a Lender; (ii) an Affiliate of a Lender Party; (iii) a commercial bank
which is an Acceptable Bank; (iv) a commercial bank organized under the laws of any other
country that is a member of the OECD, or a political subdivision of any such country, and
having total assets in excess of $1,000,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is organized or another country which is
also a member of the OECD; (v) the central bank of any country that is a member of the OECD;
or (vi) any other financial institution or Person approved by the Administrative Agent and,
unless a Default has occurred and is continuing at the time any assignment is effected
pursuant to
Section 8.08
, the Borrower (which approvals shall not be unreasonably
withheld or delayed) and (b) with respect to the Letter of Credit Facility, a Person that is
an Eligible Assignee under subclause (iii) or (iv) of clause (a) of this definition and is
approved by the Administrative Agent, the Issuing Bank and, unless a Default has occurred
and is continuing at the time any assignment is effected pursuant to
Section 8.08
,
the Borrower (which approval shall not be unreasonably withheld or delayed); provided,
however, that neither any Loan Party nor any Affiliate of a Loan Party, and unless a Default
has occurred and is continuing, any competitor, or Affiliate of a competitor, of the
Borrower shall qualify as an Eligible Assignee under this definition; and provided, further,
that, in the event Borrower fails to respond to any request for approval hereunder within
five (5) days of such request from the Administrative Agent, the Borrower shall be deemed to
have given such approval.
“
Environmental Action
” means any action, suit, demand, demand letter, claim, notice of
non-compliance or violation, notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in any way to any Environmental Law,
any Environmental Permit or Hazardous Material or arising from alleged injury or threat to
health, safety or the environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial or other actions
or damages and (b) by any governmental or regulatory authority or third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive relief.
15
“
Environmental Law
” means any Federal, state, local or foreign statute, law, ordinance,
rule, regulation, code, order, writ, judgment, injunction, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
“
Environmental Permit
” means any permit, approval, identification number, license or
other authorization required under any Environmental Law.
“
Equity Proceeds
” has the meaning specified in
Section 5.04(c)
.
“
ERISA
” means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.
“
ERISA Affiliate
” means any Person that for purposes of Title IV of ERISA is a member
of the controlled group of any Loan Party, or under common control with any Loan Party,
within the meaning of Section 414 of the Internal Revenue Code.
“
ERISA Event
” means (a)(i) the occurrence of a reportable event, within the meaning of
Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement with
respect to such event has been waived by the PBGC or (ii) the requirements of Section
4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12)
or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such
Plan within the following 30 days; (b) the application for a minimum funding waiver with
respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a
lien under Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the
adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant
to Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to terminate a
Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, such Plan.
“
Eurocurrency Liabilities
” has the meaning specified in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time to time.
“
Eurodollar Lending Office
” means, with respect to any Lender Party, the office of such
Lender Party specified as its “Eurodollar Lending Office” opposite its name on
16
Schedule I
hereto or in the Incremental Amendment or the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender Party as such Lender Party
may from time to time specify to the Borrower and the Administrative Agent.
“
Eurodollar Rate
” means, for any Interest Period for all Eurodollar Rate Advances
comprising part of the same Borrowing, an interest rate per annum equal to the rate per
annum obtained by dividing (a) (i) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBOR 01 Page (or any successor page) as
the London interbank offered rate for deposits in U.S. dollars at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period for a period equal to such
Interest Period by (ii) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period or (b) upon 3 Business Days’ prior written request by
the Borrower to the Administrative Agent, (i) the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a multiple) of the rate
per annum at which deposits in U.S. dollars are offered by the principal office of each of
the Reference Banks in London, England to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first day of such Interest Period in
an amount substantially equal to such Reference Bank’s Eurodollar Rate Advance comprising
part of such Borrowing to be outstanding during such Interest Period (or, if such Reference
Bank shall not have such a Eurodollar Rate Advance, $1,000,000) and for a period equal to
such Interest Period by (ii) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period. The Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing shall be determined by the
Administrative Agent on the basis of applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of
Section 2.07
; provided that
in no event shall the Eurodollar Rate be less than 1.0% per annum.
“
Eurodollar Rate Borrowing
” means a Borrowing that bears interest as provided in
Section 2.07(a)(ii)
.
“
Eurodollar Rate Reserve Percentage
” means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, the reserve percentage applicable two
Business Days before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate Advances is determined)
having a term equal to such Interest Period.
“
Events of Default
” has the meaning specified in
Section 6.01
.
17
“
Excess Amount
” has the meaning specified in
Section 2.03(f)
.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended.
“
Excluded Leased Real Property
” means office space and other similar real property
leased by the Loan Parties or any of their Subsidiaries not used for the conduct of the Coal
Business.
“
Existing Debt
” means Debt of each Loan Party and its Subsidiaries outstanding
immediately before the occurrence of the Effective Date.
“
Existing Facility Agreement
” means that certain Amended and Restated Credit Agreement
dated September 30, 2009 among the Borrower, the General Partner, the MLP, the lenders party
thereto, and FirstLight Funding I, Ltd., as administrative agent.
“
Existing Letters of Credit
” has the meaning specified in
Section 2.03(f)
.
“
Facility
” means each of the Revolving Credit Facility, the Term Loan Facility, the
Swing Line Facility and the Letter of Credit Facility.
“
Federal Funds Rate
” means, for any period, a fluctuating interest rate per annum for
each day during such period equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for such day for
such transactions received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
“
Fee Letter
” means the fee letter, dated June 15, 2010, among the Borrower, the
Administrative Agent and the Joint Lead Arrangers and the Joint Bookrunners, as amended.
“
Financial Forecast
” means a rolling three year financial forecast for the Borrower
which shall include, without limitation, forecasts prepared by management of the Borrower,
in form reasonably satisfactory to the Administrative Agent, of balance sheets, income
statements and cash flow statements on an annual basis for each of the next three Fiscal
Years, which financial forecast may be revised by the Borrower from time to time to reflect
changes in operating and market conditions; provided that the Borrower shall not be required
to have any such financial forecast extend past such date as is one year after the maturity
date of the Revolving Credit Facility.
“
Fiscal Year
” means a fiscal year of the MLP and its Subsidiaries ending on December 31
in any calendar year.
“
Foreign Subsidiary
” means a Subsidiary organized under the laws of a jurisdiction
other than the United States or any State thereof or the District of Columbia.
18
“
funding obligation
” has the meaning specified in the definition of “Defaulting
Lender.”
“
GAAP
” has the meaning specified in
Section 1.03
.
“
General Partner
” means Oxford Resources GP, LLC, a Delaware limited liability company
and the general partner of the MLP.
“
Governmental Authority
” means any nation or government, any state, province, city,
municipal entity or other political subdivision thereof, and any governmental, executive,
legislative, judicial, administrative or regulatory agency, department, authority,
instrumentality, commission, board, bureau or similar body, whether federal, state,
provincial, territorial, local or foreign.
“
Governmental Authorization
” means any authorization, approval, consent, franchise,
license, covenant, order, ruling, permit, certification, exemption, notice, declaration or
similar right, undertaking or other action of, to or by, or any filing, qualification or
registration with, any Governmental Authority.
“
Guaranty
” and, with correlative meaning, “
Guaranteed
” means, with respect to any
Person, any obligation (except the endorsement in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person guaranteeing or in effect
guaranteeing any Debt of any other Person in any manner, whether directly or indirectly,
including (without limitation) obligations incurred through an agreement, contingent or
otherwise, by such Person:
(a) to purchase such Debt or any property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such Debt, or
(ii) to maintain any working capital or other balance sheet condition or any income
statement condition of any other Person or otherwise to advance or make available
funds for the purchase or payment of such Debt;
(c) to lease properties or to purchase properties or services primarily for the
purpose of assuring the owner of such Debt of the ability of any other Person to
make payment of the Debt; or
(d) otherwise to assure the owner of such Debt against loss in respect thereof.
In any computation of the Debt of the obligor under any Guaranty, the Debt that is the
subject of such Guaranty shall be assumed to be a direct obligation of such obligor. The
amount of any Guaranty shall be equal to the outstanding amount of the Debt guaranteed, or
such lesser amount to which the maximum exposure of such Person shall have been specifically
limited.
19
“
Harrison
” means Harrison Resources, LLC, an Ohio limited liability company and a
Subsidiary of the Borrower in which the Borrower currently has a 51% membership interest.
“
Hazardous Materials
” means (a) petroleum or petroleum products, by-products or
breakdown products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
“
Increasing Lender
” has the meaning specified in
Section 2.18
.
“
Incremental Amendment
” has the meaning specified in
Section 2.18
.
“
Incremental Facility
” means any Incremental Term Advance or Revolving Commitment
Increase, as applicable.
“
Incremental Term Advances
” has the meaning specified in
Section 2.18
.
“
Indemnified Costs
” has the meaning specified in
Section 7.05(a)
.
“
Indemnified Party
” has the meaning specified in
Section 8.05(b)
.
“
Information
” has the meaning specified in
Section 8.11
.
“
Information Memorandum
” means the document in the form approved by the Borrower
concerning the Loan Parties and their Subsidiaries which, at the Borrower’s request and on
its behalf, was prepared in relation to this transaction and distributed by the Joint Lead
Arrangers to selected financial institutions before the date of this Agreement.
“
Initial Extension of Credit
” means the earlier to occur of the initial Borrowing and
the initial issuance of a Letter of Credit hereunder.
“
Initial Issuing Bank
” has the meaning specified in the preamble to this Agreement.
“
Initial Lenders
” has the meaning specified in the preamble to this Agreement.
“
Interest Coverage Ratio
” means, at any date of determination, the ratio of (a)
Adjusted EBITDA to (b) Consolidated Interest Expense during the four consecutive fiscal
quarters most recently ended for which financial statements are required to be delivered to
the Lender Parties pursuant to
Section 5.03(b)
or
Section 5.03(c)
, as the
case may be.
“
Interest Period
” means, for each Eurodollar Rate Advance comprising part of the same
Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of
the Conversion of any Base Rate Advance into such Eurodollar
20
Rate Advance, and ending on the last day of the period selected by the Borrower
pursuant to the provisions below and, thereafter, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 12:00 noon (New York City time) on the
third Business Day prior to the first day of such Interest Period, select; provided,
however, that:
(a) the Borrower may not select any Interest Period with respect to any
Eurodollar Rate Advance under a Facility that ends after the Termination Date;
(b) Interest Periods commencing on the same date for Eurodollar Rate Advances
comprising part of the same Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period would otherwise occur on a day
other than a Business Day, the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day; provided, however, that, if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
“
Internal Revenue Code
” means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.
“
Inventory
” means inventory held for sale or lease in the ordinary course of business.
“
Investment
” means any investment, made in cash or by delivery of property, by the
Borrower or any of its Subsidiaries (a) in any Person, whether by acquisition of stock, debt
or other obligations or Security, or by loan, guaranty of any debt, advance, capital
contribution or otherwise, or (b) in any property.
“
IPO
” means the initial public offering, consummated pursuant to the Registration
Statement, including the IPO Shoe if exercised.
“
IPO Fees and Expenses
” means fees, costs and expenses relating to the IPO, including
consulting, reserve engineering, legal, compliance, and accounting fees and expenses, which
amounts shall not exceed $2,000,000 in the aggregate.
“
IPO Shoe
” means the underwriters’ option in connection with the IPO to purchase
additional MLP Common Units.
21
“
IPO Transactions
” means all transactions to be consummated prior to or concurrently
with the closing of the IPO as described in the Registration Statement.
“
Issuing Bank
” means Fifth Third Bank, and if a different Lender is the EFA Issuing
Bank then such term includes the EFA Issuing Bank as relates to the Existing Letters of
Credit.
“
Joint Bookrunners
” means Citigroup Global Markets Inc. and Barclays Capital, the
investment banking division of Barclays Bank PLC, and/or their respective Affiliates.
“
Joint Lead Arrangers
” means Citigroup Global Markets Inc. and Barclays Capital, the
investment banking division of Barclays Bank PLC, and/or their respective Affiliates.
“
Key-Man Life Insurance Policies
” means life insurance policies in form and substance,
and issued by an insurance company, reasonably satisfactory to the Administrative Agent with
respect to Charles C. Ungurean, having a stated death benefit in the amount of $5,000,000.
“
L/C Disbursement
” shall mean a payment or disbursement made by the Issuing Bank
pursuant to a Letter of Credit.
“
L/C Related Documents
” has the meaning specified in
Section 2.04(d)(ii)
.
“
Lender Insolvency Event
” means that (i) a Lender or its Parent Company is insolvent or
(ii) an event of the kind referred to in
Section 6.01(f)
occurs with respect to such
Lender or its Parent Company (as if the references in such provisions to any Loan Party, any
of its Subsidiaries or the General Partner referred to such Lender or its Parent Company).
“
Lender Party
” means any Lender, the Issuing Bank or the Swing Line Bank.
“
Lender Party Appointment Period
” means a thirty (30) day period, with such period
beginning on the day a Person gives notice of its resignation pursuant to
Section
7.07
.
“
Lenders
” means the Initial Lenders, each Additional Lender that shall become a party
hereto pursuant to
Section 2.18
and each other Person that shall become a Lender
hereunder pursuant to
Section 8.08
for so long as such Initial Lender, Additional
Lender or other Person, as the case may be, shall be a party to this Agreement.
“
Letters of Credit
” has the meaning specified in
Section 2.01(d)
.
“
Letter of Credit Advance
” means an advance made by the Issuing Bank or any Lender
pursuant to
Section 2.03(c)
.
“
Letter of Credit Agreement
” has the meaning specified in
Section 2.03(a)
.
22
“
Letter of Credit Commitment
” means, with respect to the Issuing Bank at any time, the
amount set forth opposite the Issuing Bank’s name on
Schedule I
hereto under the
caption “Letter of Credit Commitment” or, if the Issuing Bank has entered into an Assignment
and Acceptance, set forth for the Issuing Bank in the Register as the Issuing Bank’s “Letter
of Credit Commitment.”
“
Letter of Credit Facility
” means a portion of the Revolving Credit Facility not to
exceed the lesser of (i) $20,000,000 or (ii) the aggregate of the Unused Revolving Credit
Commitments.
“
Leverage Ratio
” means, at any date of determination, the ratio of (a) Consolidated
Debt to (b) Adjusted EBITDA during the four consecutive fiscal quarters most recently ended
for which financial statements are required to be delivered to the Lender Parties pursuant
to
Section 5.03(b)
or
Section 5.03(c)
, as the case may be.
“
Lien
” means, with respect to any Person, any mortgage, lien, pledge, charge, security
interest, production payment or other encumbrance, or any interest or title of any vendor,
lessor, lender or other secured party to or of such Person under any conditional sale or
other title retention agreement or Capital Lease, upon or with respect to any property or
asset of such Person (including, in the case of stock, stockholder agreements, voting trust
agreements and all similar arrangements); provided, however, “Lien” shall not include any
negative pledge nor any royalty interest or overriding royalty interest under any deed,
lease, sublease or other similar instrument or agreement entered into in the ordinary course
of business.
“
Loan Documents
” means (a) this Agreement, (b) the Notes, (c) the Security Documents,
(d) the Fee Letter, (e) each Letter of Credit Agreement, (f) each Swap Agreement and (g) any
other agreements and documents executed and delivered in connection with this Agreement, in
each case as amended.
“
Loan Parties
” means the MLP, the Borrower and the Subsidiary Guarantors.
“
Margin Stock
” has the meaning specified in Regulation U.
“
Material Adverse Effect
” means a material adverse effect on (a) the condition
(financial or otherwise), business, performance, operations, affairs, assets, properties or
prospects of the MLP and its Subsidiaries taken as a whole, (b) the ability of the Borrower
to perform its payment obligations, its obligations under
Article V
or any other
obligations under any of the Loan Documents to which it is a party, (c) the ability of the
MLP or any Subsidiary Guarantor to perform its payment obligations or other obligations
under the MLP Guaranty or any Subsidiary Guaranty, as applicable, or (d) the validity or
enforceability of any of the Loan Documents or the rights or remedies on interests as
creditors and/or secured parties of the Administrative Agent or the Lender Parties hereunder
or thereunder.
“
Material Recovery Event
” means an event that gives rise to the receipt by the MLP or
any of its Subsidiaries of any insurance proceeds or condemnation awards in respect of any
personal or real property in excess of $500,000.
23
“
MLP
” means Oxford Resource Partners, LP, a Delaware limited partnership and the sole
member of the Borrower.
“
MLP Agreement
” means the Third Amended and Restated Agreement of Limited Partnership
of the MLP, dated as of July 19, 2010, as the same may be further amended after the date
hereof to the extent permitted under the Loan Documents.
“
MLP Common Units
” means the common units of the MLP.
“
MLP Guaranty
” means a Guaranty instrument in substantially the form of
Exhibit
D-1
hereto, as such Guaranty instrument may be amended, supplemented or restated from
time to time, duly executed by the MLP.
“
MLP Interests
” means those interests in the MLP as to which distributions are made
pursuant to the Constitutive Documents of the MLP, including without limitation the MLP
Common Units, subordinated units, general partner units and incentive distribution rights.
“
Moody’s
” means Moody’s Investors Service, Inc.
“
Multiemployer Plan
” means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which any Loan Party or any ERISA Affiliate of such Loan Party is making or
accruing an obligation to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
“
Multiple Employer Plan
” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate of such Loan Party and at least one Person other than the Loan Parties and their
ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any
ERISA Affiliate of such Loan Party could have liability under Section 4064 or 4069 of ERISA
in the event such plan has been or were to be terminated.
“
Net Cash Proceeds
” means, in connection with the disposition of any assets or the
issuance of any Debt or Capital Stock of the MLP or any of its Subsidiaries, the cash
proceeds received from such issuance or sale, as applicable, net of all investment banking
fees, legal fees, accountants’ fees, underwriting discounts and commissions and other
customary fees and expenses in connection therewith actually incurred and satisfactorily
documented.
“
Net Income
” means, with reference to any period, “net income (or loss) attributable to
Oxford Resource Partners, LP unitholders” as reflected in the Consolidated statement of
operations of the MLP and its Subsidiaries, provided that there shall be excluded therefrom:
(a) the income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the MLP or a Subsidiary, and the
income (or loss) of any Person, substantially all of the assets of which have
24
been acquired in any manner, realized by such other Person prior to the date of
acquisition,
(b) the income (or loss) of any Person other than the MLP and its Subsidiaries
in which the MLP or any of its Subsidiaries has an ownership interest, except to the
extent that any such income has been actually received by the MLP or any of such
Subsidiaries in the form of cash dividends or similar cash distributions,
(c) the undistributed earnings of any Subsidiary of the MLP to the extent that
the declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of its Constitutive Documents or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Subsidiary (in this regard, the same shall be
considered to be permitted if subject only to a requirement that the same be
approved by the equity owners),
(d) any aggregate net gain or loss during such period arising from the sale,
conversion, exchange or other disposition of capital assets (such term to include,
without limitation, (i) all non-current assets, and, without duplication, (ii) the
following, whether or not current: all fixed assets, whether tangible or intangible,
all inventory sold in conjunction with the disposition of fixed assets, and all
securities), and
(e) any net income or gain or loss during such period from (i) any change in
accounting principles in accordance with GAAP, (ii) any prior period adjustments
resulting from any change in accounting principles in accordance with GAAP, or (iii)
any extraordinary or non-cash unusual items.
The amount of the Net Income attributable to all Consolidated Ventures shall be
excluded from Net Income to the extent such amount, in excess of the Net Income attributable
to all Consolidated Ventures that is distributed to the Loan Parties, exceeds 20% of Net
Income.
“
Net Tangible Assets
” means total assets less intangible assets determined in
accordance with GAAP.
“
New York City
” means New York, New York.
“
Non-Defaulting Lender
” means, at any time, a Lender that is not a Defaulting Lender.
“
Notes
” means, collectively, the Revolving Notes and the Term Notes.
“
Notice of Borrowing
” has the meaning specified in
Section 2.02(a)
.
“
Notice of Issuance
” has the meaning specified in
Section 2.03(a)
.
25
“
Notice of Renewal
” has the meaning specified in
Section 2.01(d)
.
“
Notice of Swing Line Borrowing
” has the meaning specified in
Section 2.02(b)
.
“
Notice of Termination
” has the meaning specified in
Section 2.01(d)
.
“
NPL
” means the National Priorities List under CERCLA.
“
Obligation
” means, as used in this Agreement, the Notes, the Solvency Certificate and
the Security Documents, with respect to any Loan Party, any payment, performance or other
obligation of such Loan Party of any kind under the Loan Documents and Bank Products
Obligations, including, without limitation, any liability of such Loan Party on any claim,
whether or not the right of any creditor to payment in respect of such claim is reduced to
judgment, liquidated, unliquidated, fixed, absolute or contingent, direct or indirect,
matured, disputed, undisputed, legal, equitable, secured or unsecured, and whether or not
such claim is discharged, stayed or otherwise affected by any proceeding referred to in
Section 6.01(f)
, including, without limitation, (a) the obligation to pay principal,
interest, Letter of Credit commissions, charges, expenses, fees, attorneys’ fees and
disbursements, indemnities and other amounts payable by such Loan Party under any Loan
Document and (b) the obligation of such Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may elect to pay or advance
on behalf of such Loan Party.
“
OECD
” means the Organization for Economic Cooperation and Development.
“
OFAC
” means the Office of Foreign Assets Control, an agency of the United States
Department of Treasury.
“
Open Year
” has the meaning specified in
Section 4.01(p)(ii)
.
“
Ordinary Course Obligations
” means obligations in respect of workers’ compensation,
unemployment insurance, reclamation laws or mining activities or activities incidental,
supplemental or related to mining activities, the payment of retirement benefits or
performance guarantees relating to coal deliveries or insurance deductibles.
“
Other Taxes
” has the meaning specified in
Section 2.12(b)
.
“
Parent Company
” means, with respect to a Lender, the bank holding company (as defined
in Federal Reserve Board Regulation Y), if any, of such Lender, or any Person owning,
beneficially or of record, directly or indirectly, a majority of the shares of Capital Stock
of such Lender.
“
Patriot Act
” has the meaning specified in
Section 8.16
.
“
PBGC
” means the Pension Benefit Guaranty Corporation (or any successor).
26
“
Permitted Acquisition
” means any acquisition by the MLP or its Subsidiaries, whether
by purchase, merger or otherwise, of all or substantially all of the assets of, all of the
Capital Stock of, or a business line or unit or a division of, any Person which is organized
in and whose operations and assets are conducted and located in the United States; provided
that:
(a) Such acquisition is of a business or Person engaged in a line of business
which is the same as, compatible with, or complementary to the business of the MLP
and/or any of its Subsidiaries;
(b) If such acquisition is structured as an acquisition of the Capital Stock of
any Person, then the Person so acquired shall (i) become a direct Subsidiary of a
Loan Party and such Loan Party shall or the Borrower shall cause such acquired
Person to comply with
Section 5.01(i)
hereof (if applicable) or (ii) be
merged with and into a Loan Party in compliance with
Section 5.02(e)
;
(c) If such acquisition is structured as an acquisition of assets, such assets
shall be acquired directly by (i) one of the Loan Parties or (ii) a Person
newly-formed for such purpose who prior to or at the time of such acquisition
becomes a direct Subsidiary of a Loan Party where such Loan Party or the Borrower
has caused such newly-formed Person to comply with
Section 5.01(i)
hereof
(if applicable);
(d) The Borrower shall or shall have caused to be delivered to the
Administrative Agent, not less than ten (10) nor more than ninety (90) days prior to
the date of such acquisition, notice of such acquisition together with projected
financial information, copies of all material documents relating to such acquisition
(including the acquisition agreement and any of the same with respect to the
acquisition agreement and any related document), subject to any changes therein
prior to or at the closing of such acquisition with the Administrative Agent being
promptly informed of any such material changes, and historical financial information
(including income statements, balance sheets and cash flows) covering at least three
(3) complete fiscal years of the acquisition target or the entire fiscal history of
the acquisition target, whichever period is shorter, if, as and to the extent
available without requirement for the preparation of any of the same not otherwise
available, in each case in form and substance reasonably satisfactory to the
Administrative Agent;
(e) Both immediately before and after the consummation of such acquisition no
event shall occur and be continuing that constitutes a Default;
(f) The board of directors (or other Person(s) exercising similar functions) of
the seller of the assets or issuer of the Capital Stock being acquired shall not
have disapproved such transaction or recommended that such transaction be
disapproved;
27
(g) All governmental, quasi-governmental, agency, regulatory or similar
licenses, authorizations, exemptions, qualifications, consents and approvals
necessary under any laws applicable to the MLP or any of its Subsidiaries that is
making the acquisition, or the acquisition target (if applicable), for or in
connection with the proposed acquisition, and all necessary non-governmental and
other third-party approvals which, in each case, are material to such acquisition,
shall have been obtained, and all necessary or appropriate declarations,
registrations or other filings with any court, governmental or regulatory authority,
securities exchange or other Person, which, in each case, are material to the
consummation of such acquisition or to the acquisition target, if applicable, shall
have been made, and evidence thereof reasonably satisfactory in form and substance
to the Administrative Agent shall have been delivered, or been caused to have been
delivered, by the Borrower to the Administrative Agent; and
(h) There shall be no actions, suits or proceedings pending or, to the
knowledge of the MLP or any of its Subsidiaries threatened in writing, (i) against
the acquisition target in any court or before or by any governmental department,
agency or instrumentality, which (A) could reasonably be expected to be decided
adversely to the acquisition target and which, if decided adversely, could
reasonably be expected to have a material adverse effect on the condition (financial
or otherwise), business, performance, operations, affairs, assets, properties or
financial condition of the acquired portion of the acquisition target and its
Subsidiaries (taken as a whole) or (B) could materially adversely affect the ability
of the acquisition target to enter into or perform its obligations in connection
with the proposed acquisition, or (ii) against any Loan Party or any of its
Subsidiaries that is making the acquisition which would materially adversely affect
the ability of such Loan Party or any of such Subsidiaries to enter into or perform
its obligations in connection with the proposed acquisition.
“
Permitted Liens
” means each of the following:
(a) Liens in favor of the Administrative Agent or the Lenders arising under the
Security Documents;
(b) Liens for property taxes, assessments or other governmental charges which
are not yet due and payable and delinquent or the validity of which is being
contested in good faith and as to which appropriate reserves are being maintained in
accordance with GAAP in compliance with
Section 5.01(b)
;
(c) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other similar Liens, in each case incurred in the
ordinary course of business for sums not yet due and payable or the amount,
applicability or validity of which is being contested by the Borrower or any of its
Subsidiaries on a timely basis in good faith in appropriate proceedings, and as to
which appropriate reserves are being maintained in accordance with GAAP;
28
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in
the ordinary course of business (i) in connection with workers’ compensation,
unemployment insurance and other types of social security or retirement benefits, or
(ii) to secure (or to obtain letters of credit that secure) the performance of
tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than
Capital Leases), performance bonds, purchase, construction or sales contracts and
other similar obligations, in each case not incurred or made in connection with the
borrowing of money, the obtaining of advances or credit or the payment of the
deferred purchase price of property;
(e) Liens in favor of Swap Lenders to secure obligations under the Swap
Agreements;
(f) easements, rights-of-way, zoning restrictions, licenses, reservations or
restrictions on use and other similar encumbrances on the use of real property which
do not materially interfere with the ordinary conduct of the Coal Business;
(g) Liens in respect of capitalized lease obligations or purchase money
indebtedness upon or in real property or equipment acquired or held by any of the
Loan Parties or any of their Subsidiaries in the ordinary course of business to
secure the purchase price of such property or equipment or to secure non-recourse,
tax-exempt Debt incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property or equipment subject to such Liens,
or extensions, renewals or replacements of any of the foregoing for the same or a
lesser amount; provided, however, that such Liens (i) are created within 270 days of
the acquisition, construction, repair or improvement of the real property or
equipment subject to such Liens, (ii) secure Debt incurred pursuant to 5.02(c)(iii),
and (iii) shall not extend to or cover any property other than the property or
equipment being acquired, constructed or improved, and no such extension, renewal or
replacement shall extend to or cover any property not theretofore subject to the
Lien being extended, renewed or replaced;
(h) judgment Liens which do not result in an Event of Default under
Section
6.01(g)
or
Section 6.01(h)
;
(i) Liens in existence on the date hereof and disclosed on
Schedule
5.02(a)
hereto (including Liens under the Existing Facility Agreement);
(j) Liens arising from precautionary UCC financing statement filings regarding
true leases by any Loan Party or any of its Subsidiaries as lessee of any property;
(k) any interest or title of a lessor, sublessor, licensee or licensor under
any lease, sublease or license agreement otherwise permitted hereby arising by
operation of law;
29
(l) any interests of any mortgagees of any landlord with respect to real estate
or any other property leased by any Loan Party or any of its Subsidiaries as lessee;
(m) any Lien securing the replacement, extension or renewal of Debt to the
extent permitted under
Section 5.02(c)
hereof and secured by Liens permitted
by
clause (g)
or
(i)
of this definition upon or in the same property
theretofore subject thereto; and
(o) The following encumbrances which do not, in any case, individually or in
the aggregate, materially detract from the value of the interest of any Loan Party
or any of its Subsidiaries in any Coal Business real property subject thereto or
interfere with the ordinary conduct of the business or operations of any Loan Party
or any of its Subsidiaries as presently conducted on, at or with respect to such
Coal Business real property and as to be conducted following the Effective Date:
(i) encumbrances typically found upon real property used for mining
purposes in the applicable jurisdiction in which the applicable real
property is located to the extent such encumbrances would be permitted or
granted by a prudent operator of mining property similar in use and
configuration to such real property (e.g., surface rights agreements,
wheelage agreements and reconveyance agreements);
(ii) rights and easements of (A) owners of undivided interests in any
real property where the applicable Loan Party or any of its Subsidiaries
owns less than 100% of the fee interest, (B) owners of interests in the
surface of any real property where the applicable Loan Party or any of its
Subsidiaries does not own or lease such surface interest, (C) owners and
lessees, if any, of coal or other minerals (including oil, gas and coalbed
methane) where the applicable Loan Party or any of its Subsidiaries does not
own such coal or other minerals, and (D) owners and lessees of other coal
seams and other minerals (including oil, gas and coalbed methane) not owned
or leased by such Loan Party or any of its Subsidiaries; provided, however,
that the rights and easements described in clauses (A) through (D) of this
clause (ii) shall in no event cause any breach of the representations made
in
Section 4.01(s)
hereof;
(iii) with respect to any real property in which any Loan Party or any
of its Subsidiaries holds a leasehold interest, terms, agreements,
provisions, conditions, and limitations (other than royalty and other
payment obligations which are otherwise permitted hereunder) contained in
the leases granting such leasehold interest and the rights of lessors
thereunder (and their heirs, executors, administrators, successors, and
assigns);
30
(iv) farm, grazing, hunting, recreational, residential and commercial
leases unrelated to the Coal Business with respect to which any Loan Party
or any of its Subsidiaries is the lessor encumbering portions of any real
property to the extent such leases would be granted or permitted by, and
contain terms and provisions that would be acceptable to, a prudent operator
of mining properties similar in use to such real property;
(v) royalty and other payment obligations to sellers or transferors of
fee coal or lease properties to the extent such obligations constitute a
lien not yet delinquent and/or when the term of the relevant instrument
expires by its terms;
(vi) rights of others to subjacent or lateral support and absence of
subsidence rights or to the maintenance of barrier pillars or restrictions
on mining within certain areas as provided by any mining lease, unless in
each case waived by the appropriate Person;
(vii) rights of repurchase or reversion when mining and reclamation are
completed; and
(viii) any other such encumbrances which individually or in the
aggregate do not materially detract from the value of the interest of any
Loan Party or any of its Subsidiaries in any Coal Business real property or
interfere with the ordinary course of business or operation thereof for the
Coal Business and which has been approved by the Administrative Agent and
the Required Lenders.
“
Person
” means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency thereof.
“
Plan
” means a Single Employer Plan or a Multiple Employer Plan.
“
Post Closing Covenants
” has the meaning specified in
Section 5.01(p)
.
“
Potential Defaulting Lender
” means, at any time, a Lender (a) as to which the
Administrative Agent has notified the Borrower that an event of the kind referred to in the
definition of “Lender Insolvency Event” has occurred and is continuing in respect of any
financial institution affiliate of such Lender, (b) as to which the Administrative Agent has
in good faith determined and notified the Borrower that such Lender or its Parent Company or
a Subsidiary thereof has defaulted on its funding obligations under any other loan agreement
or credit agreement or other financing agreement or (c) that has, or whose Parent Company
has, a non-investment grade rating from Moody’s or S&P or another nationally recognized
rating agency. Any determination that a Lender is a Potential Defaulting Lender under any
of clauses (a) through (c) above shall be made by the Administrative Agent in its sole
discretion acting in good faith. The Administrative
31
Agent will promptly send to all parties hereto a copy of any notice to the Borrower
referred to above.
“
Preferred Stock
” means, with respect to any Person, any class of Capital Stock of such
Person that is preferred over any other class of Capital Stock of such Person as to the
payment of dividends or the payment of any amount upon liquidation or dissolution of such
Person.
“
Pro Rata Share
” of any amount means, with respect to any Lender at any time, the
product of such amount times a fraction, the numerator of which is the amount of such
Lender’s Revolving Credit Commitment at such time (or, if the Revolving Credit Commitments
shall have been terminated pursuant to
Section 2.05
or
Section 6.01
, such
Lender’s Revolving Credit Commitment as in effect immediately prior to such termination)
plus
the amount of such Lender’s Term Loan Advances then outstanding, and the denominator of
which is the Revolving Credit Facility at such time (or, if the Revolving Credit Commitments
shall have been terminated pursuant to
Section 2.05
or
Section 6.01
, the
Revolving Credit Facility as in effect immediately prior to such termination)
plus
the Term
Loan Facility.
“
Reclamation Laws
” means all laws relating to mining reclamation or reclamation
liabilities, including, without limitation, the Surface Mining Control and Reclamation Act
of 1977, as amended, and all applicable state laws.
“
Reclamation Order
” has the meaning specified in
Section 5.01(o)(ii)
.
“
Reference Banks
” means Citibank and Barclays Bank PLC.
“
Register
” has the meaning specified in
Section 8.08(d)
.
“
Registration Statemen
t
” means that certain Registration Statement of the MLP on Form
S-1 (Registration No. 333-165662) filed with the Commission on March 24, 2010, as amended
from time to time, together with any prospectus related thereto.
“
Regulation U
” means Regulation U of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
“
Related Parties
” means, with respect to any Person, such Person’s Affiliates and the
respective managers, administrators, trustees, partners, directors, officers, employees,
agents, fund managers and advisors of such Person and such Person’s Affiliates.
“
Replacement Lender
” has the meaning specified in
Section 2.17(a)
.
“
Replacement Notice
” has the meaning specified in
Section 2.17(a)
.
“
Repurchase Agreement
” means any written agreement:
(a) that provides for (i) the transfer of one or more United States
Governmental Securities in an aggregate principal amount at least equal to the
32
amount of the Transfer Price (defined below) to the MLP or any of its
Subsidiaries from an Acceptable Bank or an Acceptable Broker-Dealer against a
transfer of funds (the “
Transfer Price
”) by the MLP or any such Subsidiary to such
Acceptable Bank or Acceptable Broker-Dealer, and (ii) a simultaneous agreement by
the MLP or any such Subsidiary, in connection with such transfer of funds, to
transfer to such Acceptable Bank or Acceptable Broker-Dealer the same or
substantially similar United States Governmental Securities for a price not less
than the Transfer Price plus a reasonable return thereon at a date certain not later
than 365 days after such transfer of funds,
(b) in respect of which the MLP or any of its Subsidiaries shall have the
right, whether by contract or pursuant to applicable law, to liquidate such
agreement upon the occurrence of any default thereunder, and
(c) in connection with which the MLP or any of its Subsidiaries, or an agent
thereof, shall have taken all action required by applicable law or regulations to
perfect a Lien in such United States Governmental Securities.
“
Required Lenders
” means, at any time, Lenders owed or holding at least an amount
representing 50.1% of the sum of (a) the aggregate principal amount of the Advances
outstanding at such time, (b) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (c) the aggregate Unused Revolving Credit Commitments at such time
and (d) the aggregate Term Loan Commitments at such time, if applicable. For purposes of
this definition, the aggregate principal amount of Swing Line Advances owing to the Swing
Line Bank and of Letter of Credit Advances owing to the Issuing Bank and the Available
Amount of each Letter of Credit shall be considered to be owed to the Lenders ratably in
accordance with their respective Revolving Credit Commitments.
“
Responsible Officer
” means any officer of any Loan Party or any of its Subsidiaries.
“
Restricted Payment
” has the meaning set forth in
Section 5.02(h)
.
“
Restricting Information
” has the meaning specified in
Section 8.12(a)
.
“
Revolving Commitment Increase
” has the meaning specified in
Section 2.18
.
“
Revolving Commitment Increase Lender
” has the meaning specified in
Section
2.18
.
“
Revolving Credit Advance
” has the meaning specified in
Section 2.01(a)
.
“
Revolving Credit Borrowing
” means a borrowing consisting of simultaneous Revolving
Credit Advances of the same Type made by the Lenders.
“
Revolving Credit Commitment
” means, with respect to any Lender, (a) the amount set
forth opposite such Lender’s name on
Schedule I
hereto under the caption
33
“Revolving Credit Commitment,” (b) if such Lender has become a Lender hereunder
pursuant to an Incremental Amendment, the amount set forth in such Incremental Amendment as
such Lender’s “Revolving Credit Commitment,” or (c) if such Lender has entered into one or
more Assignment and Acceptances, the amount set forth for such Lender in the Register as
such Lender’s “Revolving Credit Commitment,” as such amount may at or prior to such time be
reduced pursuant to
Section 2.05
or increased pursuant to
Section 2.18
.
“
Revolving Credit Facility
” means, at any time, the aggregate amount of the Lenders’
Revolving Credit Commitments at such time.
“
Revolving Credit Termination Date
” means the earlier of July 18, 2013 (which date is
three years after the Effective Date) and the date of termination in whole of the Revolving
Credit Commitments, the Letter of Credit Commitment and the Swing Line Commitment pursuant
to
Section 2.05
,
Section 3.01
or
Section 6.01
.
“
Revolving Note
” means a promissory note of the Borrower payable to the order of any
Lender, in substantially the form of
Exhibit A-1
hereto, as amended, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the Revolving Credit
Advances, Letter of Credit Advances and Swing Line Advances made by such Lender.
“
Revolving Pro Rata Share
” means, as to any amount with respect to any Lender at any
time, the product of such amount times a fraction the numerator of which is the amount of
such Lender’s Revolving Credit Commitment at such time (or, if the Revolving Credit
Commitments shall have been terminated pursuant to
Section 2.05
or
Section
6.01
, such Lender’s Revolving Credit Commitment as in effect immediately prior to such
termination) and the denominator of which is the Revolving Credit Facility at such time (or,
if the Revolving Credit Commitments shall have been terminated pursuant to
Section
2.05
or
Section 6.01
, the Revolving Credit Facility as in effect immediately
prior to such termination).
“
S&P
” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies,
Inc.
“
Scheduled Amount
” has the meaning specified in
Section 5.04(c)
.
“
Securities Act
” means the Securities Act of 1933, as amended from time to time.
“
Security
” has the meaning set forth in Section 2(a)(1) of the Securities Act.
“
Security Agreement
” means a Security and Pledge Agreement securing the Borrowings and
the guarantees thereof, as amended, supplemented and restated from time to time and duly
executed by the MLP, the Borrower and each Subsidiary Guarantor.
“
Security Documents
” means the Security Agreements, the MLP Guaranty, the Subsidiary
Guarantees and each other security document or pledge agreement delivered
34
in accordance with applicable local or foreign law to grant a valid, perfected security
interest in any property, and all UCC or other financing statements or instruments of
perfection required by this Agreement, any security agreement or mortgage to be filed with
respect to the security interests in property and fixtures created pursuant to the Security
Agreements or any mortgage and any other document or instrument utilized to pledge as
collateral for the Obligations any property of whatever kind or nature.
“
Single Employer Plan
” means a single employer plan, as defined in Section 4001(a)(15)
of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate of
such Loan Party and no Person other than the Loan Parties and their ERISA Affiliates or (b)
was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been or were to be
terminated.
“
Solvency Certificate
” has the meaning set forth in
Section 3.01(a)(x)
.
“
Solvent
” and “
Solvency
” mean, with respect to any Person on a particular date, that on
such date (a) the fair value of the property of such Person is greater than the total amount
of liabilities, including, without limitation, contingent liabilities, of such Person, (b)
the present fair salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as they become
absolute and matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as
they mature and (d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person’s property would
constitute an unreasonably small capital. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
“
Standby Letter of Credit
” means any Letter of Credit issued under the Letter of Credit
Facility, other than a Trade Letter of Credit.
“
Subject Lender
” has the meaning specified in
Section 2.17(a)
.
“
Subsidiary
” means, with respect to any Person, any corporation, limited liability
company, partnership, joint venture, association, trust or other entity (a) of which (or in
which) more than 50% of (i) the issued and outstanding Capital Stock having ordinary voting
power to elect a majority of the board of directors of such corporation (irrespective of
whether at the time Capital Stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (ii) the interests in the
capital or profits of such limited liability company, partnership, joint venture or
association, or (iii) the beneficial interests in such trust or other entity with ordinary
voting power to elect a majority of the board of trustees (or persons performing similar
functions) of such trust or other entity is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its Subsidiaries, or by one
35
or more of such Person’s Subsidiaries, or (b) which otherwise is Consolidated for
financial statement purposes with the MLP.
“
Subsidiary Guarantors
” means the Subsidiaries of the MLP listed on
Schedule II
hereto and each other Subsidiary of the MLP that shall be required to execute and deliver a
guaranty pursuant to
Section 5.01(i)
. For the avoidance of doubt, Consolidated
Ventures shall not be Subsidiary Guarantors.
“
Subsidiary Guaranty
” means a guaranty in substantially the form of
Exhibit D-2
hereto, together with each other guaranty or guaranty supplement delivered from time to time
pursuant to
Section 5.01(i)
, in each case as amended, supplemented and restated from
time to time, duly executed by each Subsidiary Guarantor.
“
Surety Bond Support Letters of Credit
” means letters of credit issued to any insurance
company or other issuer of a surety bond as credit support for a Person’s reimbursement
obligations to such insurance company or other institution acting as issuer of such surety
bond.
“
Swap Agreement
” means any agreement evidencing Swaps with any Swap Lender.
“
Swap Lender
” means any person that, at the time it enters into a Swap with the MLP or
any of its Subsidiaries, is a Lender or an Affiliate of a Lender.
“
Swaps
” means, with respect to any Person, payment obligations with respect to interest
rate swaps, caps, floors, collars, and similar agreements, currency or commodity swaps and
hedging obligations obligating such Person to make payments, whether periodically or upon
the happening of a contingency. For the purposes of this Agreement, the amount of the
obligation under any Swap shall be the amount determined in respect thereof as of the end of
the then most recently ended fiscal quarter of such Person, based on the assumption that
such Swap had terminated at the end of such fiscal quarter, and, in making such
determination, if any agreement relating to such Swap provides for the netting of amounts
payable by and to such Person thereunder or if any such agreement provides for the
simultaneous payment of amounts by and to such Person, then, in each such case, the amount
of such obligation shall be the net amount so determined.
“
Swing Line Advance
” means an Advance made by (a) the Swing Line Bank pursuant to
Section 2.01(c)
or (b) any Lender pursuant to
Section 2.02(b)
.
“
Swing Line Bank
” means Citibank, or its successor as subsequently designated
hereunder.
“
Swing Line Borrowing
” means a Borrowing consisting of a Swing Line Advance made by (a)
the Swing Line Bank pursuant to
Section 2.01(c)
or (b) any Lender pursuant to
Section 2.02(b)
.
36
“
Swing Line Commitment
” means, with respect to the Swing Line Bank, the amount of the
Swing Line Facility set forth in
Section 2.01(c)
.
“
Swing Line Facility
” means an available portion under the Revolving Credit Facility in
an amount not to exceed the lesser of (i) $7,500,000 and (ii) the aggregate of the Unused
Revolving Credit Commitment.
“
Syndication Agent
” means Barclays Capital, the investment banking division of Barclays
Bank PLC.
“
Tax Affiliates
” has the meaning specified in
Section 2.12(a)
.
“
Taxes
” has the meaning specified in
Section 2.12(a)
.
“
Term Loan Advance
” means an Advance made pursuant to
Section 2.01(b)
or
Section 2.18
.
“
Term Loan Borrowing
” means a borrowing consisting of a single Term Loan Advance made
by the Lenders.
“
Term Loan Commitment
” means, with respect to any Lender, (a) the amount set forth
opposite such Lender’s name on
Schedule I
hereto under the caption “Term Loan
Commitment,” (b) if such Lender has become a Lender hereunder pursuant to an Incremental
Amendment, the amount set forth in such Incremental Amendment as such Lender’s “Term Loan
Commitment,” or (c) if such Lender has entered into one or more Assignment and Acceptances,
the amount set forth for such Lender in the Register as such Lender’s “Term Loan
Commitment,” as such amount may be increased pursuant to
Section 2.18
.
“
Term Loan Facility
” means, at any time, the aggregate amount of the Term Loan
Borrowings outstanding at such time.
“
Term Loan Maturity Date
” means the earlier of July 18, 2014 (which date is four years
after the Effective Date) and the date of the termination in whole of the Term Loan
Commitment pursuant to
Section 3.01
.
“
Term Note
” means a promissory note of the Borrower payable to the order of any Lender,
in substantially the form of
Exhibit A-2
hereto, as amended, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the Advances made by
such Lender with respect to such Lender’s Term Loan Commitment.
“
Trade Letter of Credit
” means any Letter of Credit that is issued under the Letter of
Credit Facility for the benefit of a supplier of Inventory or raw materials or supplies
(including, without limitation, fuel, spare parts or other materials used in connection with
the operation of the business of the Borrower and its Subsidiaries) to the Borrower or any
of its Subsidiaries to effect payment for such Inventory or raw materials or supplies.
“
Trading with the Enemy Act
” has the meaning specified in
Section 4.01(z)
.
37
“
Transaction
” means the refinancing in full of the Existing Facility Agreement and the
making of the Advances and the issuance of the Letters of Credit under this Agreement.
“
Transaction Documents
” means, collectively, the Loan Documents and the MLP Agreement.
“
Transfer
” means, with respect to any Person, any transaction in which such Person
sells, conveys, abandons, transfers, leases (as lessor), or otherwise disposes of any of its
assets; provided, however, that “Transfer” shall not include (a) the granting of any Liens
permitted to be granted pursuant to this Agreement, (b) any transfer of assets permitted
pursuant to
Section 5.02(e)
, (c) the making of any Restricted Payment permitted
pursuant to
Section 5.02(h)
or (d) the making of any Investments permitted pursuant
to
Section 5.02(g)
.
“
Transfer Price
” has the meaning specified in the definition of “Repurchase Agreement.”
“
Type
” means the type of Borrowing as between a Borrowing bearing interest at the Base
Rate and a Borrowing bearing interest at the Eurodollar Rate.
“
Ungureans
” has the meaning specified in the definition of “Change of Control.”
“
United States
” means, except as otherwise provided in this Agreement, the United
States of America.
“
United States Governmental Security
” means any direct obligation of, or obligation
guaranteed by, the United States, or any agency controlled or supervised by or acting as an
instrumentality of the United States pursuant to authority granted by the Congress of the
United States, so long as such obligation or guarantee shall have the benefit of the full
faith and credit of the United States which shall have been pledged pursuant to authority
granted by the Congress of the United States.
“
unreallocated portion
” has the meaning specified in
Section 2.15(a)(ii)
.
“
Unused Equity Proceeds
” has the meaning specified in
Section 5.04(c)
.
“
Unused Revolving Credit Commitment
” means, with respect to any Lender at any time, (a)
such Lender’s Revolving Credit Commitment at such time minus (b) the sum of (i) the
aggregate principal amount of all Revolving Credit Advances, Swing Line Advances and Letter
of Credit Advances made by such Lender (in its capacity as a Lender and not as the Swing
Line Bank or an Issuing Bank) and outstanding at such time plus (ii) such Lender’s Revolving
Pro Rata Share of (A) the aggregate Available Amount of all Letters of Credit outstanding at
such time (excluding Letters of Credit that are cash collateralized pursuant to
Section
2.01(d)
), (B) the aggregate principal amount of all L/C Disbursements made by the
Issuing Bank pursuant to
Section 2.03(c)
and outstanding at such time and (C) the
aggregate principal amount of all Swing Line Advances made by the Swing Line Bank pursuant
to
Section 2.01(c)
and outstanding at such time.
38
“
Voting Stock
” means, (i) Securities of any class of classes, the holders of which are
ordinarily, in the absence of contingencies, entitled to elect a majority of the directors
(or Persons performing similar functions) or (ii) in the case of a partnership, limited
liability company or joint venture, interests in the profits or capital thereof entitling
the holders of such interests to approve major business actions.
“
Weighted Average Life to Maturity
” means, when applied to any Debt at any date, the
number of years obtained by dividing: (a) the sum of the products obtained by multiplying
(i) the amount of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in respect thereof, by
(ii) the number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by (b) the then outstanding principal amount of
such Debt.
“
Withdrawal Liability
” has the meaning specified in Part I of Subtitle E of Title IV of
ERISA.
Section 1.02
Computation of Time Periods; Other Definitional Provisions
. In this
Agreement and the other Loan Documents, in the computation of periods of time from a specified date
to a later specified date, the word “from” means “from and including” and the words “to” and
“until” each mean “to but excluding.” The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. References in the Loan Documents to any agreement
or contract “as amended” shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in accordance with its
terms.
Section 1.03
Accounting Terms
. All accounting terms not specifically defined herein
shall be construed in accordance with United States generally accepted accounting principles in
effect from time to time (“
GAAP
”); provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment of any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof or the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purposes), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
Section 2.01
The Advances and the Letters of Credit
. (a)
The Revolving Credit Advances
. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances (each, a “
Revolving Credit Advance
”) to the
Borrower from time to time on any Business Day during the Availability Period in an amount for each
such Advance not to exceed such Lender’s Unused Revolving Credit Commitment at such time. Each
Revolving Credit
39
Advance shall be in an aggregate amount of $1,000,000 or an integral multiple of
$500,000 in excess thereof in the case of Base Rate Advances and in an aggregate amount of
$2,000,000 or an integral multiple of $1,000,000 in excess thereof in the case of Eurodollar Rate
Advances (other than, in the case of Base Rate Advances, an Advance the proceeds of which shall be
used solely to repay or prepay in full outstanding Swing Line Advances or repay, prepay or cash
collateralize outstanding Letter of Credit Advances, in which case such Base Rate Advances may be
in an aggregate amount necessary to repay or prepay in full such Swing Line Advances or Letter of
Credit Advances) and shall consist of Revolving Credit Advances made simultaneously by the Lenders
ratably according to their Revolving Credit Commitments. Within the limits of each Lender’s Unused
Revolving Credit Commitment in effect from time to time, the Borrower may borrow under this
Section 2.01(a)
, prepay pursuant to
Section 2.06(a)
and reborrow under this
Section 2.01(a)
.
(b)
Term Loan Advance
. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make a single Advance to the Borrower on the Effective Date in an amount
not to exceed such Lender’s Term Loan Commitment (each, a “
Term Loan Advance
”). The Term Loan
Advances shall be advanced in a single Advance made by each Lender and the Term Loan Commitments
shall automatically be reduced to zero upon such Advance, unless subsequently increased pursuant to
Section 2.18
, provided that the Borrower shall continue to be able to continue or convert
Term Loan Borrowings from one Type to the other Type at the end of any applicable Interest Period,
assuming no Default has occurred and is continuing. Amounts borrowed under this
Section
2.01(b)
and repaid pursuant to
Section 2.04(b)
or prepaid under
Section 2.06(c)
may not be reborrowed.
(c)
The Swing Line Advances
. The Borrower may request the Swing Line Bank to make,
and the Swing Line Bank agrees to make, on the terms and conditions hereinafter set forth, Swing
Line Advances to the Borrower from time to time on any Business Day during the Availability Period
in an amount not to exceed the Swing Line Facility at such time (the “
Swing Line Facility
”). No
Swing Line Advance shall be used for the purpose of funding the payment of principal of any other
Swing Line Advance. Each Swing Line Advance shall be in an amount of $1,000,000 or an integral
multiple of $500,000 in excess thereof and shall be made as a Base Rate Advance. Within the limits
of the Swing Line Facility, the Borrower may borrow under this
Section 2.01(c)
, repay
pursuant to
Section 2.04(c)
or prepay pursuant to
Section 2.06(a)
and reborrow
under this
Section 2.01(c)
.
(d)
The Letters of Credit
. The Issuing Bank severally agrees, on the terms and
conditions hereinafter set forth, to issue (or cause its Affiliate that is a commercial bank to
issue on its behalf) letters of credit (together with the Existing Letters of Credit referred to in
Section 2.03(f)
, the “
Letters of Credit
”) in United States dollars for the account of the
Borrower (and in connection with the business of the Borrower or any of its Subsidiaries) from time
to time on any Business Day during the period from the Effective Date until 30 days before the
Revolving Credit Termination Date in an aggregate amount not to exceed at any time the Letter of
Credit Facility at such time. No Letter of Credit shall have an expiration date (including all
rights of the Borrower or the beneficiary to require renewal) later than the earlier 30 days before the
Revolving Credit Termination Date and (A) in the case of a Standby Letter of Credit, one year after
the date of issuance thereof, but may by its terms be renewable annually upon notice (a “
Notice of
Renewal
”) given to the Issuing Bank that issued such Standby Letter of Credit and the
40
Administrative Agent on or prior to any date for notice of renewal set forth in such Letter of
Credit but in any event at least three Business Days prior to the date of the proposed renewal of
such Standby Letter of Credit and upon fulfillment of the applicable conditions set forth in
Article III
unless the Issuing Bank has notified the Borrower (with a copy to the
Administrative Agent) on or prior to the date for notice of termination set forth in such Letter of
Credit but in any event at least 45 Business Days prior to the date of automatic renewal of its
election not to renew such Standby Letter of Credit (a “
Notice of Termination
”), and (B) in the
case of a Trade Letter of Credit, 30 days after the date of issuance thereof; provided that the
terms of each Standby Letter of Credit that is automatically renewable annually shall (x) require
the Issuing Bank to give the beneficiary named in such Standby Letter of Credit notice of any
Notice of Termination, (y) permit such beneficiary, upon receipt of such notice, to draw under such
Standby Letter of Credit prior to the date such Standby Letter of Credit otherwise would have been
automatically renewed and (z) not permit the expiration date (after giving effect to any renewal)
of such Standby Letter of Credit in any event to be extended to a date later than 30 days before
the Revolving Credit Termination Date. If either a Notice of Renewal is not given by the Borrower
or a Notice of Termination is given by the Issuing Bank pursuant to the immediately preceding
sentence, such Standby Letter of Credit shall expire on the date on which it otherwise would have
been automatically renewed; provided, however, that even in the absence of receipt of a Notice of
Renewal the Issuing Bank may in its discretion, unless instructed to the contrary by the
Administrative Agent or the Borrower, deem that a Notice of Renewal had been timely delivered and,
in such case, a Notice of Renewal shall be deemed to have been so delivered for all purposes under
this Agreement. Notwithstanding the foregoing, a Letter of Credit may provide for a later
expiration date, provided that the Borrower shall at least ninety (90) days prior to the Revolving
Credit Termination Date, in a manner reasonably satisfactory to the Issuing Bank, deposit and
pledge funds in an account with the Issuing Bank equal to 105% of the face amount of such Letter of
Credit, and in such event the participation and obligations of each Lender with a Revolving Credit
Commitment pursuant to
Section 2.03
shall be deemed terminated and of no further force and
effect. In the event the Borrower fails to so deposit and pledge funds in the required amount, the
Borrower shall be deemed to have made a request for a Base Rate Borrowing and the Borrower’s
obligation to deposit and pledge such amount shall be discharged and replaced by the resulting Base
Rate Borrowing, and the proceeds of such Base Rate Borrowing shall be deposited and held by the
Issuing Bank as cash collateral. The Loan Parties shall execute all documentation reasonably
required by the Issuing Bank to evidence the Issuing Bank’s security interest in cash collateral
held by it. The amounts held by the Issuing Bank as cash collateral pursuant to this Section shall
continue to be held as such by the Issuing Bank after termination of this Agreement. Within the
limits of the Letter of Credit Facility, and subject to the limits referred to above, the Borrower
may request the issuance of Letters of Credit under this
Section 2.01(d)
, repay any Letter
of Credit Advances resulting from drawings thereunder pursuant to
Section 2.03(c)
and
request the issuance of additional Letters of Credit under this
Section 2.01(d)
.
Section 2.02
Making the Advances
. (a) Except as otherwise provided in
Section 2.02(b)
or
Section 2.03
, each
Borrowing shall be made on notice, given not later than 11:00 a.m. (New York City time) on the
third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Eurodollar Rate Advances, or the same Business Day of the proposed Borrowing in the
case of a Borrowing consisting of Base Rate Advances, by the Borrower to the Administrative Agent,
which shall give to each Appropriate Lender prompt
41
notice thereof. Each such notice of a Borrowing (a “
Notice of Borrowing
”) shall be by telephone, confirmed immediately in writing, or by
telecopier, in substantially the form of
Exhibit B
hereto, specifying therein the requested
(i) date of such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate amount
of such Borrowing and (iv) in the case of a Borrowing consisting of Eurodollar Rate Advances,
initial Interest Period for each such Advance. Each Appropriate Lender shall, in the case of
Eurodollar Rate Borrowings before 12:00 noon (New York City time) and in the case of Base Rate
Borrowings before 3:00 p.m. (New York City time), on the date of such Borrowing, make available for
the account of its Applicable Lending Office to the Administrative Agent at the Administrative
Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing in accordance
with the respective Commitments under the applicable Facility of such Lender and the other
Appropriate Lenders. After the Administrative Agent’s receipt of such funds and upon fulfillment
of the applicable conditions set forth in
Article III
, the Administrative Agent shall make
such funds available to the Borrower by crediting the Borrower’s Account; provided, however, that,
in the case of any Revolving Credit Borrowing, the Administrative Agent shall first make a portion
of such funds equal to the aggregate principal amount of any Swing Line Advances and Letter of
Credit Advances made by the Swing Line Bank or the Issuing Bank, as the case may be, and by any
other Lender and outstanding on the date of such Revolving Credit Borrowing, plus interest accrued
and unpaid thereon to and as of such date, available to the Swing Line Bank or the Issuing Bank, as
the case may be, and such other Lenders for repayment of such Swing Line Advances and Letter of
Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given not later than 11:00 a.m. (New
York City time) on the date of the proposed Swing Line Borrowing, by the Borrower to the Swing Line
Bank and the Administrative Agent. Each such notice of a Swing Line Borrowing (a “
Notice of Swing
Line Borrowing
”) shall be by telephone, confirmed immediately in writing, or by telecopier,
specifying therein the requested (i) date of such Borrowing, (ii) amount of such Borrowing and
(iii) maturity of such Borrowing (which maturity shall be no later than the thirtieth day after the
requested date of such Borrowing). The Swing Line Bank shall, before 3:00 p.m. (New York City
time) on the date of such Swing Line Borrowing, make the amount of the requested Swing Line
Advances available to the Administrative Agent at the Administrative Agent’s Account, in same day
funds. After the Administrative Agent’s receipt of such funds and upon fulfillment of the
applicable conditions set forth in
Article III
, the Administrative Agent shall make such
funds available to the Borrower by crediting the Borrower’s Account. Upon written demand by the
Swing Line Bank, with a copy of such demand to the Administrative Agent, each other Lender with a
Revolving Credit Commitment shall purchase from the Swing Line Bank, and the Swing Line Bank shall
sell and assign to each such other Lender, such other Lender’s Revolving Pro Rata Share of such
outstanding Swing Line Advance as of the date of such demand, by making available for the account
of its Applicable Lending Office to the Administrative Agent for the account of the Swing Line
Bank, by deposit to the Administrative Agent’s Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Swing Line Advance to be purchased by
such Lender. The Borrower hereby agrees to each such sale and assignment. Each Lender with a
Revolving Credit Commitment agrees to purchase its Revolving Pro Rata Share of an outstanding Swing
Line Advance on (i) the Business Day on which demand therefor is made by the Swing Line Bank;
provided that notice of such demand is given not later than 11:00 a.m. (New York City time) on such
Business Day or (ii) the first Business Day next succeeding such
42
demand if notice of such demand is given after such time. Upon any such assignment by the Swing Line Bank to any other Lender with a
Revolving Credit Commitment of a portion of a Swing Line Advance, the Swing Line Bank represents
and warrants to such other Lender that the Swing Line Bank is the legal and beneficial owner of
such interest being assigned by it, but makes no other representation or warranty and assumes no
responsibility with respect to such Swing Line Advance, the Loan Documents or any Loan Party. If
and to the extent that any Lender with a Revolving Credit Commitment shall not have so made the
amount of such Swing Line Advance available to the Administrative Agent, such Lender agrees to pay
to the Administrative Agent forthwith on demand such amount together with interest thereon, for
each day from the date of demand by the Swing Line Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate. If such Lender shall pay to the Administrative
Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid
in respect of principal shall constitute a Swing Line Advance made by such Lender on such Business
Day for purposes of this Agreement, and the outstanding principal amount of the Swing Line Advance
made by the Swing Line Bank shall be reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not
select Eurodollar Rate Advances for the initial Borrowing hereunder or for any Borrowing if the
aggregate amount of any such Borrowing is less than $2,000,000 or if the obligation of the
Appropriate Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.07(d)(ii)
,
Section 2.09(b)(iii)
or
Section 2.10(c)
or
Section
2.10(c)
and (ii) there shall be no more than five (5) Interest Periods in effect with respect
to all Revolving Credit Borrowings and no more than five (5) Interest Periods in effect with
respect to all Term Loan Borrowings.
(d) Each Notice of Borrowing and each Notice of Swing Line Borrowing shall be irrevocable and
binding on the Borrower.
(e) Unless the Administrative Agent shall have received notice from an Appropriate Lender
prior to the date of any Borrowing under a Facility under which such Lender has a Commitment that
such Lender will not make available to the Administrative Agent such Lender’s ratable portion of
such Borrowing, the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in accordance with
Section
2.02(a)
and the Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such Lender and the
Borrower severally agree to repay or pay to the Administrative Agent forthwith on demand such
corresponding amount and to pay interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid or paid to the Administrative Agent
at (i) in the case of the Borrower, the interest rate applicable at such time under
Section
2.07
for Advances comprising such Borrowing, and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall
pay to the Administrative Agent such corresponding amount, such amount so paid shall constitute
such Lender’s Advance as part of such Borrowing for all purposes.
43
(f) The failure of any Lender to make the Advance to be made by it as part of any Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on the date of any Borrowing.
Section 2.03
Issuance of and Drawings and Reimbursement Under Letters of Credit
. (a)
Request for Issuance
. Each Letter of Credit shall be issued upon notice, given not later
than 12:00 noon (New York City time) on the fifth Business Day prior to the date of the proposed
issuance of such Letter of Credit, by the Borrower to the Issuing Bank, which shall give to the
Administrative Agent and each Lender prompt notice thereof by telecopier or electronic
communication. Each such notice of issuance of a Letter of Credit (a “
Notice of Issuance
”) shall
be by telephone, confirmed immediately in writing, or telecopier or electronic communication,
specifying therein the (i) name of the Issuing Bank, (ii) date of such issuance (which shall be a
Business Day), (iii) Available Amount of such Letter of Credit, (iv) expiration date of such Letter
of Credit, (v) name and address of the beneficiary of such Letter of Credit and (vi) form of such
Letter of Credit, and shall be accompanied by such application and agreement for letter of credit
as the Issuing Bank may specify to the Borrower for use in connection with such requested Letter of
Credit (a “
Letter of Credit Agreement
”); provided that such Letter of Credit Agreement shall be
subject to the provisions of
Section 2.08
. If (i) the requested form of such Letter of
Credit is acceptable to the Issuing Bank in its reasonable sole discretion and (ii) it has not
received notice of a good faith objection to such issuance from the Required Lenders, the Issuing
Bank shall, upon fulfillment of the applicable conditions set forth in
Article III
, make
such Letter of Credit available to the Borrower at its office referred to in
Section 8.02
or as otherwise agreed with the Borrower in connection with such issuance. In the event and to the
extent that the provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b)
Letter of Credit Reports
. The Issuing Bank shall furnish (i) to the
Administrative Agent and to each Lender on the first Business Day of each month a written report
summarizing issuance and expiration dates of Letters of Credit issued by the Issuing Bank during
the preceding month and drawings during such month under all Letters of Credit issued by the
Issuing Bank and (ii) to the Administrative Agent and each Lender on the first Business Day of each
calendar quarter a written report setting forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued by the Issuing Bank. A copy of each
such report delivered pursuant to this clause (b) shall be delivered to the Borrower upon request
by the Borrower.
(c)
Participations in Letters of Credit
. Upon the issuance of a Letter of Credit by
the Issuing Bank under
Section 2.03(a)
, the Issuing Bank shall be deemed, without further
action by any party hereto, to have sold to each Lender with a Revolving Credit Commitment, and
each such Lender shall be deemed, without further action by any party hereto, to have purchased
from the Issuing Bank, a participation in such Letter of Credit in an amount for each Lender equal
to such Lender’s Revolving Pro Rata Share of the Available Amount of such Letter of Credit,
effective upon the issuance of such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay such Lender’s Revolving
Pro Rata Share of each L/C Disbursement made by the Issuing Bank and not
44
reimbursed by the Borrower forthwith on the date due as provided in
Section 2.04(d)
on demand by the Administrative
Agent by making available for the account of its Applicable Lending Office to the Administrative
Agent for the account of the Issuing Bank by deposit to the Administrative Agent’s Account, in same
day funds, an amount equal to such Lender’s Revolving Pro Rata Share of such L/C Disbursement. The
Administrative Agent will promptly thereafter cause like funds to be distributed to the Issuing
Bank for the account of its Applicable Lending Office. Each Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this
Section 2.03(c)
in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or an Event of Default or the
termination of the Commitments, and that each such payment shall be made without any off-set,
abatement, withholding or reduction whatsoever. If and to the extent that any Lender shall not
have so made the amount of such L/C Disbursement available to the Administrative Agent, such Lender
agrees to pay to the Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date such L/C Disbursement is due as provided in
Section
2.04(d)
until the date such amount is paid to the Administrative Agent, at the Federal Funds
Rate for its account or the account of the Issuing Bank, as applicable. If such Lender shall pay
to the Administrative Agent such amount for the account of the Issuing Bank on any Business Day,
such amount so paid in respect of principal shall constitute a Letter of Credit Advance made by
such Lender on such Business Day for purposes of this Agreement, and the outstanding principal
amount of the Letter of Credit Advance made by the Issuing Bank shall be reduced by such amount on
such Business Day.
(d)
Drawing and Reimbursement
. The payment by the Issuing Bank of a L/C Disbursement
shall constitute for all purposes of this Agreement the making by the Issuing Bank of a Letter of
Credit Advance, which shall bear interest at the Base Rate plus the Applicable Margin, in the
amount of such draft. The Issuing Bank shall promptly notify the Administrative Agent of any such
payment.
(e)
Failure to Make Letter of Credit Advances
. The failure of any Lender to make the
Letter of Credit Advance to be made by it on the date specified in
Section 2.03(c)
shall
not relieve any other Lender of its obligation hereunder to make its Letter of Credit Advance on
such date, but no Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
(f)
Existing Letters of Credit
. Letters of Credit issued by the EFA Issuing Bank
under the Existing Credit Facility and listed on
Schedule 2.03(f)
(the “
Existing Letters of
Credit
”) shall be continued under this Facility as outstanding Letters of Credit hereunder with the
EFA Issuing Bank as the Issuing Bank hereunder for all purposes thereof; provided that such Letters
of Credit conform in all respects with the requirements for Letters of Credit under this Agreement.
As of the Effective Date, for any Existing Letters of Credit, the EFA Issuing Bank as the Issuing Bank shall be deemed to have sold and transferred an undivided interest and
participation in respect of the Existing Letters of Credit and each Appropriate Lender hereunder
shall be deemed to have purchased and received, without further action on the part of any party, an
undivided interest and participation in such Existing Letters of Credit, based on such Lender’s
Revolving Pro Rata Share of the aggregate Available Amount of all Letters of Credit outstanding at
such time.
45
Section 2.04
Repayment of Advances
. (a)
Revolving Credit Advances
. The
Borrower unconditionally promises to pay to the Administrative Agent for the ratable account of the
Lenders on the Revolving Credit Termination Date the aggregate principal amount of the Revolving
Credit Advances then outstanding.
(b)
Term Loan Advances
. The Borrower unconditionally promises to pay to the
Administrative Agent for the ratable account of each Lender the then aggregate unpaid principal
amount of the Term Loan Borrowings made to the Borrower on the Term Loan Maturity Date. In
addition, the principal balance of the Term Loan Borrowings shall be repaid in quarterly
installments of $1,500,000, said payments to be made on the last Business Day of each fiscal
quarter commencing on September 30, 2010. In the event the initial Term Loan Advance amount
changes pursuant to
Section 2.18
, or otherwise, the amount of the quarterly installment
shall be adjusted accordingly.
(c)
Swing Line Advances
. The Borrower unconditionally promises to pay to the
Administrative Agent for the account of the Swing Line Bank and each other Lender that has made a
Swing Line Advance the outstanding principal amount of each Swing Line Advance made by each of them
on the earlier of the maturity date specified in the applicable Notice of Swing Line Borrowing
(which maturity date shall be no later than the thirtieth day after the requested date of such
Borrowing) and the Revolving Credit Termination Date.
(d)
Letter of Credit Advances
. The provisions set forth below in this clause (d)
shall apply with respect to Letter of Credit Advances.
(i) The Borrower unconditionally promises to pay to the Administrative Agent for the
account of the Issuing Bank and each other Lender that has made a Letter of Credit Advance
on the earlier of demand and the Revolving Credit Termination Date the outstanding principal
amount of each Letter of Credit Advance made by each of them (it being understood and agreed
that, subject to the satisfaction of the other provisions of this Agreement, a Letter of
Credit Advance may be repaid prior to the Revolving Credit Termination Date with the
proceeds of a new Revolving Credit Borrowing).
(ii) The Obligations of the Borrower under this Agreement, any Letter of Credit
Agreement and any other agreement or instrument relating to any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement, such Letter of Credit Agreement and such other agreement or instrument under
all circumstances, including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan Document, any Letter of
Credit Agreement, any Letter of Credit or any other agreement or instrument relating
thereto (all of the foregoing being, collectively, the “
L/C Related Documents
”);
(B) any change in the time, manner or place of payment of, or in any other term
of, all or any of the Obligations of any Loan Party in respect of any
46
L/C Related Document or any other amendment or waiver of or any consent to departure from all or
any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that any Loan
Party may have at any time against any beneficiary or any transferee of a Letter of
Credit (or any Persons for which any such beneficiary or any such transferee may be
acting), the Issuing Bank or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit against presentation
of a draft, certificate or other document that does not strictly comply with the
terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any collateral, or any release
or amendment or waiver of or consent to departure from any guarantee hereof, for all
or any of the Obligations of any Loan Party in respect of the L/C Related Documents;
or
(G) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing, including, without limitation, any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the Borrower
or a guarantor.
(iii) In furtherance of the foregoing, if any Lender becomes, and during the period it
remains, a Defaulting Lender or a Potential Defaulting Lender, each of the Issuing Bank and
the Swing Line Bank is hereby authorized by the Borrower (which authorization is irrevocable
and coupled with an interest) to give, through the Administrative Agent, Notices of
Borrowing pursuant to
Section 2.02
in such amounts and at such times as may be
required to (A) reimburse an outstanding L/C Disbursement, (B) repay an outstanding Swing
Line Advance, or (C) Cash Collateralize the obligations of the Borrower in respect of the
Available Amount of all outstanding Letters of Credit or Swing Line Advances in an amount at
least equal to the aggregate amount of the obligations (contingent or otherwise) of such
Defaulting Lender or Potential Defaulting Lender.
Section 2.05
Optional Termination or Reduction of the Commitments
. The Borrower may, upon notice on the same Business Day to the Administrative Agent,
terminate in whole or reduce in part the Unused Revolving Credit Commitments. Each partial
reduction (a) shall be in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof and (b) shall be made ratably among the Appropriate Lenders in accordance with
their Commitments with respect to such Facility; provided that Borrower shall not terminate or
reduce the Revolving Credit Commitments by the amount, if any, by which the amounts then
47
outstanding under the Revolving Credit Facility plus any outstanding Swing Line Loans and any
outstanding Letters of Credit exceed the Revolving Credit Commitments after giving effect to such
reduction of the Revolving Credit Facility. Any such termination shall be permanent. In addition
to the foregoing, the Borrower may terminate the unused amount of the Revolving Credit Commitment
of any Lender that is a Defaulting Lender upon not less than five Business Days’ prior notice to
the Administrative Agent (which shall promptly notify the Lenders thereof), and in such event the
provisions of
Section 2.15(a)
shall apply to all amounts thereafter paid by the Borrower
for the account of such Defaulting Lender under this Agreement (whether on account of principal,
interest, fees, indemnity or other amounts), provided that (a) no Event of Default shall have
occurred and be continuing and (b) such termination shall not be deemed to be a waiver or release
of any claim the Borrower, the Administrative Agent or any Lender Party may have against such
Defaulting Lender.
Section 2.06
Prepayments
. (a)
Optional
. The Borrower may, upon notice on the
same Business Day in the case of Base Rate Advances and three Business Days’ notice in the case of
Eurodollar Rate Advances, in each case to the Administrative Agent stating the proposed prepayment
date, aggregate principal amount of the prepayment and the amount of such prepayment, if any, to be
allocated to prepayment of Revolving Credit Advances or Term Loan Advances then outstanding, and if
such notice is given, the Borrower shall, prepay the outstanding aggregate principal amount of the
Advances comprising part of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the aggregate principal amount prepaid; provided,
however, that each partial prepayment shall be in an aggregate principal amount of $1,000,000 or an
integral multiple of $500,000 in excess thereof in the case of Base Rate Advances and $2,000,000 or
an integral multiple of $1,000,000 in excess thereof in the case of Eurodollar Rate Advances, and
if any prepayment of a Eurodollar Rate Advance is made on a date other than the last day of an
Interest Period for such Advance then the Borrower shall also pay any amounts owing pursuant to
Section 8.05(c)
.
(b)
Mandatory — Revolving Credit Facility
. The provisions set forth below in this
clause (b) shall apply with respect to mandatory prepayments of the Revolving Credit Facility.
(i) The Borrower shall, on each Business Day, prepay an aggregate principal amount of
the Revolving Credit Advances comprising part of the same Borrowings, the Letter of Credit
Advances and the Swing Line Advances in an amount equal to the amount by which (A) the sum
of the aggregate principal amount of (I) the Revolving Credit Advances, (II) the Letter of
Credit Advances and (III) the Swing Line Advances then outstanding plus the aggregate
Available Amount of all Letters of Credit then outstanding exceeds (B) the Revolving Credit
Facility on such Business Day.
(ii) Prepayments of the Revolving Credit Facility made pursuant to clause (i) shall be
first applied to prepay Letter of Credit Advances then outstanding until such Letter of
Credit Advances are paid in full, second applied to prepay Swing Line Advances then
outstanding until such Swing Line Advances are paid in full and third applied to prepay
Revolving Credit Advances then outstanding comprising part of the same Borrowings until such
Revolving Credit Advances are paid in full.
48
(iii) All prepayments under this clause
(b)
shall be made together with accrued
interest to the date of such prepayment on the principal amount prepaid, together with any
amounts owing pursuant to
Section 8.05(c)
.
(c)
Mandatory — Term Loan Facility
. The Borrower shall, on or prior to the tenth
Business Day following receipt of proceeds by the MLP or any of its Subsidiaries from the following
events, prepay the principal amount of the Term Loan Borrowings in the following amounts, which
shall be applied in direct order of maturity:
(i) 100% of the Net Cash Proceeds of an Asset Sale not otherwise permitted under
Section 5.02(f)
; provided that, so long as no Event of Default has occurred and is
continuing, no such repayment shall be required if the Borrower notifies the Administrative
Agent on or before the date such repayment is required to be made that the Borrower intends
to use all of the Net Cash Proceeds from such Asset Sale to acquire or purchase assets to be
used in the business of the Borrower within six months of the date of such Asset Sale, in
which case the repayment need not be made, unless all or part of the Net Cash Proceeds from
such Asset Sales are not used within such six months period, in which case the Term Loan
Borrowings shall be repaid by an amount equal to the portion of the Net Cash Proceeds from
such Asset Sales not so reinvested on the Business Day immediately following such six months
period.
(ii) 50% of the Net Cash Proceeds of the issuance of any Capital Stock of the MLP or
any of its Subsidiaries; provided that the foregoing shall not apply with respect to the
issuance of such Capital Stock (i) in the IPO, (ii) in any follow-on offerings to the extent
such Net Cash Proceeds are used to fund Capital Expenditures permitted under
Section
5.04(c)
and Permitted Acquisitions (e.g., if there were a follow-on offering in which
Net Cash Proceeds of $50,000,000 were raised and $25,000,000 of those Net Cash Proceeds were
used to fund such Capital Expenditures and/or Permitted Acquisitions, then 50% of the
remaining Net Cash Proceeds of $25,000,000, or $12,500,000, would need to be applied for
prepayment of the Term Loan Borrowings) and (iii) in connection with employee equity-based
compensation plans.
(iii) 100% of the Net Cash Proceeds from the issuance of any Debt by the MLP or any of
its Subsidiaries not otherwise permitted under
Section 5.02(c)
.
(iv) 100% of the Net Cash Proceeds from any Material Recovery Event, provided that, (A)
so long as no Event of Default has occurred and is continuing, no such repayment shall be
required if the Borrower notifies the Administrative Agent on or before the date such
repayment is required to be made that the Borrower intends to use all of the Net Cash
Proceeds from such Material Recovery Event to replace or purchase assets to be used in the business of the Borrower within six months of the date of such
Material Recovery Event, in which case the repayment need not be made, unless all or part of
the Net Cash Proceeds from such Material Recovery Event are not used within such six months
period, in which case the Term Loan Borrowings shall be repaid by an amount equal to the
portion of the Net Cash Proceeds from such Material Recovery Event not so reinvested on the
Business Day immediately following such six months period, and (B) in any case, no such
repayment shall be required up to the amount the asset
49
affected by such Material Recovery Event is subject to a Lien permitted under clause (g) of the definition of Permitted Liens
and such Net Cash Proceeds are used to discharge such Lien.
(v) 100% of the proceeds of any Key-Man Life Insurance Policies; provided that, so long
as no Event of Default has occurred and is continuing, no such repayment shall be required
if the Borrower notifies the Administrative Agent on or before the date such repayment is
required to be made that the Borrower intends to use all of the proceeds to recruit and hire
a replacement for the officer of the General Partner covered by such policy within six
months, in which case the repayment need not be made, unless all or part of the proceeds of
any such Key-Man Life Insurance Policy are not used within such six months period, in which
case the Term Loan Borrowings shall be repaid by an amount equal to the portion of the
proceeds of such Key-Man Life Insurance Policy not so used on the Business Day immediately
following such six months period.
Section 2.07
Interest
. (a)
Scheduled Interest
. The Borrower shall pay
interest on the unpaid principal amount of each Borrowing owing to each Lender from the date of
such Borrowing until such principal amount shall be paid in full at the following rates per annum:
(i)
Base Rate Borrowings
. During such periods as such Borrowing is a Base Rate
Borrowing, a rate per annum equal at all times to the sum of (A) the Base Rate in effect
from time to time plus (B) the Applicable Margin in effect from time to time, payable in
arrears quarterly on the last day of each fiscal quarter during such periods and on the date
such Base Rate Borrowing shall be Converted or paid in full.
(ii)
Eurodollar Rate Borrowings
. During such periods as such Borrowing is a
Eurodollar Rate Borrowing, a rate per annum equal at all times during each Interest Period
for such Borrowing to the sum of (A) the Eurodollar Rate for such Interest Period for such
Borrowing plus (B) the Applicable Margin in effect prior to the first day of such Interest
Period, payable in arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest Period and on the
date such Eurodollar Rate Borrowing shall be Converted, continued as a Eurodollar Rate
Borrowing or paid in full.
(b)
Default Interest
. Upon the occurrence and during the continuance of an Event of
Default, the Borrower shall pay interest (“
Default Interest
”) on (i) the unpaid principal amount of
each Borrowing owing to each Lender Party, payable in arrears on the dates referred to in
clause (a)(i) or clause (a)(ii) above and on demand, at a rate per annum equal at all times to
2% per annum above the rate per annum required to be paid on such Borrowing pursuant to clause
(a)(i) or clause (a)(ii) above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable under the Loan Documents that is not paid when due, from the
date such amount shall be due until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2%
per annum above the rate per annum required to be paid, in the case of interest, on the Type of
Borrowing on which such interest has accrued pursuant to clause (a)(i) or clause (a)(ii) above and,
in all other cases, on Base Rate Borrowings pursuant to clause (a)(i) above; provided,
50
however, that, in all events, following the acceleration of the Borrowings, or the giving of notice by the
Administrative Agent to accelerate the Borrowings, pursuant to
Section 6.01
, Default
Interest shall accrue and be payable hereunder at all times thereafter.
(c)
Notice of Interest Period and Interest Rate
. Promptly after receipt of a Notice
of Borrowing pursuant to
Section 2.02(a)
, a notice of Conversion pursuant to
Section
2.09
or a notice of selection of an Interest Period pursuant to the terms of the definition of
“Interest Period,” the Administrative Agent shall give notice to the Borrower and each Appropriate
Lender of the applicable Interest Period and the applicable interest rate determined by the
Administrative Agent for purposes of clause (a)(i) or clause (a)(ii) above, and the applicable
rate, if any, furnished by each Reference Bank at the Borrower’s request for the purpose of
determining the applicable interest rate under clause (a)(ii) above.
(d)
Interest Rate Determination
. The provisions set forth below in this clause (d)
shall apply with respect to interest rate determination.
(i) In the event that the Borrower requests, in accordance with the definition of
“Eurodollar Rate,” that the Eurodollar Rate be based on interest rate quotes received from
the Reference Banks, each Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining each Eurodollar Rate. If any one or more
of the Reference Banks shall not furnish such timely information to the Administrative Agent
for the purpose of determining any such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished by the remaining
Reference Banks.
(ii) If fewer than two Reference Banks are able to furnish timely information to the
Administrative Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances
and the Eurodollar Rate cannot otherwise be determined in accordance with clause (b) of the
definition of “Eurodollar Rate”, the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined pursuant to said clause
(b) for such Eurodollar Rate Advances, and, unless the Eurodollar Rate cannot be determined
by reference to clause (a) of the definition of Eurodollar Rate, then
(A) each such Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Borrowing (or if such Advance is
then a Base Rate Borrowing, will continue as a Base Rate Borrowing), and
(B) the obligation of the Lenders to make, or to Convert Borrowings into,
Eurodollar Rate Borrowings shall be suspended until the Administrative Agent shall
notify the Borrower and the Lenders that the circumstances causing such suspension
no longer exist.
Section 2.08
Fees
. (a)
Commitment Fee
. The Borrower shall pay to the
Administrative Agent for the account of the Lenders a commitment fee, from the Effective Date in
the case of each Initial Lender and from the effective date specified in the Incremental Amendment
or in the Assignment and Acceptance pursuant to which it became a Lender in the case of each other
51
Lender until the Revolving Credit Termination Date, payable in arrears on the date of the Initial
Extension of Credit hereunder, thereafter quarterly on the last day of each calendar quarter
commencing with the calendar quarter ending at September 30, 2010, and on the Revolving Credit
Termination Date, at a percentage per annum equal to the Applicable Percentage at such time on the
sum of the average daily Unused Revolving Credit Commitment of such Lender plus its Revolving Pro
Rata Share of the average daily outstanding Swing Line Advances during such calendar quarter or
other period.
(b)
Letter of Credit Fees, Etc
. The provisions set forth below in this clause (b)
shall apply with respect to Letter of Credit fees.
(i) The Borrower shall pay to the Administrative Agent for the account of each Lender a
commission, payable in arrears quarterly, within 15 days after the last day of each calendar
quarter commencing September 30, 2010, and on the earliest to occur of the full drawing,
expiration, termination or cancellation of any Letter of Credit and on the Revolving Credit
Termination Date, on such Lender’s Revolving Pro Rata Share of the average daily aggregate
Available Amount during such calendar quarter or other period of all Letters of Credit
outstanding from time to time at a percentage per annum equal to the Applicable Margin for
Eurodollar Rate Advances at such time. Upon the occurrence and during the continuance of a
Default under
Section 6.01(a)
or
Section 6.01(f)
or an Event of Default, the
amount of commission payable by the Borrower under this clause
(i)
shall be
increased by 2% per annum.
(ii) The Borrower shall pay to the Issuing Bank, for its own account, a fronting fee,
payable in arrears quarterly, within 15 days after the last day of each calendar quarter
commencing September 30, 2010, and on the earliest to occur of the full drawing, expiration,
termination or cancellation of any Letter of Credit and on the Revolving Credit Termination
Date, on the average daily aggregate Available Amount during such calendar quarter or other
period of all Letters of Credit outstanding from time to time at a percentage per annum
equal to 0.25%.
(iii) The Borrower shall pay to the Issuing Bank, for its own account, such other
commissions and issuance fees, and such customary transfer fees, amendment fees and other
fees and charges, in connection with the issuance or administration of each Letter of Credit
issued by the Issuing Bank, including the administration of each Letter of Credit Agreement,
as the Borrower and the Issuing Bank shall agree; provided that the fees of the type contemplated by clause (i) and clause (ii) above shall be exclusive of
any similar fee that would otherwise be required to be paid under any such Letter of Credit
Agreement.
(c)
Defaulting Lender Fees
. Anything herein to the contrary notwithstanding, during
such period as a Lender is a Defaulting Lender, such Defaulting Lender shall not be entitled to any
fees accruing during such period pursuant to
Section 2.08(a)
and
Section 2.08(b)
(without prejudice to the rights of the Non-Defaulting Lenders in respect of such fees), provided
that, (a) to the extent that a portion of the Revolving Pro Rata Share of the aggregate Available
Amount of all outstanding Letters of Credit and Swing Line Advances of such Defaulting Lender is
reallocated to the Non-Defaulting Lenders pursuant to
Section 2.15(a)
, such fees that would
have
52
accrued for the benefit of such Defaulting Lender shall instead accrue for the benefit of and
be payable to such Non-Defaulting Lenders, ratably in accordance with their respective Revolving
Credit Commitments, and (b) to the extent that any portion of such Revolving Pro Rata Share of the
aggregate Available Amount of all outstanding Letters of Credit and Swing Line Advances of such
Defaulting Lender cannot be so reallocated such fees shall instead accrue for the benefit of and be
payable to the Issuing Bank and the Swing Line Bank as their interests appear (and the ratable
payment provisions of
Section 2.02
and
Section 2.03
shall automatically be deemed
adjusted to reflect the provisions of this
Section 2.08(c)
).
(d)
Upfront Fees
. The Borrower shall pay to the Administrative Agent for the account
of the Lenders, on the date of the Initial Extension of Credit, an upfront fee in an amount equal
to (i) 1.25% of the aggregate principal amount of the Revolving Credit Commitments and (ii) 1.25%
of the aggregate principal amount of the Term Loan Commitments. Such fee will be in all respects
fully earned, due and payable on such date and non-refundable and non-creditable thereafter and, in
the case of the Term Loan Advances, such fee shall be netted against Term Loan Advances made by
such Lender.
(e)
Administrative Agent’s Fees
. The Borrower shall pay to the Administrative Agent
for its own account such fees as may from time to time be agreed between the Borrower and the
Administrative Agent in the Fee Letter.
Section 2.09
Conversion of Borrowings
. (a)
Optional
. The Borrower may on any
Business Day, upon notice given to the Administrative Agent not later than 11:00 a.m. (New York
City time) on the third Business Day prior to the date of the proposed Conversion or continuation,
in the case of the Conversion or continuation of any Borrowings into or as Eurodollar Rate
Borrowings, and on the same Business Day, in the case of the Conversion of any Borrowings into Base
Rate Borrowings, and subject, in each case, to the provisions of
Section 2.07
and
Section 2.10
, Convert all or any portion of the Borrowings of one Type comprising the same
Borrowing into Borrowings of the other Type (or in the case of Eurodollar Rate Borrowings, continue
such Borrowings as Eurodollar Rate Borrowings); provided, however, that any Conversion of
Eurodollar Rate Borrowings into Base Rate Borrowings or continuation of Eurodollar Rate Borrowings
as Eurodollar Rate Borrowings shall be made only on the last day of an Interest Period for such
Eurodollar Rate Borrowings, any Conversion of Base Rate Borrowings into Eurodollar Rate Borrowings
shall be in an amount not less than the minimum amount specified in
Section 2.02(c)
, no Conversion of any Borrowings shall result in more separate Borrowings than
permitted under
Section 2.02(c)
and each Conversion of Borrowings comprising part of the
same Borrowing under any Facility shall be made ratably among the Appropriate Lenders in accordance
with their Commitments under such Facility. Each such notice of Conversion or continuation shall,
within the restrictions specified above, specify (i) the date of such Conversion or continuation,
(ii) the Borrowings to be Converted or continued and (iii) if such Conversion or continuation is
into Eurodollar Rate Borrowings, the duration of the initial Interest Period for such Borrowings.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
(b)
Mandatory
. The provisions set forth below in this clause (b) shall apply with
respect to mandatory Conversion of Borrowings.
53
(i) On the date on which the aggregate unpaid principal amount of Eurodollar Rate
Borrowings shall be reduced, by payment, prepayment or otherwise, to less than $2,000,000,
such Borrowings shall automatically Convert into Base Rate Borrowings.
(ii) If the Borrower shall provide a notice of Conversion or continuation and fail to
select the duration of any Interest Period for any Eurodollar Rate Borrowings in accordance
with the provisions contained in the definition of “Interest Period” in
Section
1.01
, the Administrative Agent shall forthwith so notify the Borrower and the
Appropriate Lenders, whereupon each such Eurodollar Rate Borrowing shall automatically, on
the last day of the then existing Interest Period therefor, Convert into or continue as a
Eurodollar Rate Borrowing with an interest period of one month. In addition, if the
Borrower shall fail to provide a timely notice of Conversion or continuation for any
Eurodollar Rate Borrowing, such Eurodollar Rate Borrowing shall automatically Convert into a
Base Rate Borrowing.
(iii) Upon the occurrence and during the continuance of any Event of Default, (A) each
Eurodollar Rate Borrowing shall automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Borrowing, and (B) the obligation of the Lenders
to make Eurodollar Rate Advances, or to Convert Base Rate Borrowings into or to continue
Eurodollar Rate Borrowings as Eurodollar Rate Borrowings, shall be suspended during such
continuance.
Section 2.10
Increased Costs, Etc.
(a) If, due to either (i) the introduction of or
any change in or in the interpretation of any law or regulation after the date hereof or (ii) the
compliance with any guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the cost to any Lender
Party of agreeing to make or of making, funding or maintaining Eurodollar Rate Advances or of
agreeing to issue or of issuing or maintaining or participating in Letters of Credit or of agreeing
to make or of making or maintaining Letter of Credit Advances (excluding, for purposes of this
Section 2.10
, any such increased costs resulting from (A) Taxes or Other Taxes (as to which
Section 2.12
shall govern) and (B) changes in the basis of taxation of overall net income
or overall gross income by the United States or by the foreign jurisdiction or state under the laws
of which such Lender Party is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrower shall from time to time, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such Lender Party
additional amounts sufficient to compensate such Lender Party for such increased cost. A
certificate as to the amount of such increased cost, submitted to the Borrower by such Lender
Party, shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender Party determines that compliance with any law or regulation or any guideline
or request from any central bank or other governmental authority enacted, promulgated, issued or
made after the date hereof (whether or not having the force of law) affects or would affect the
amount of capital required or expected to be maintained by such Lender Party or any corporation
controlling such Lender Party and that the amount of such capital is increased by or based upon the
existence of such Lender Party’s commitment to lend or to issue or participate in Letters of Credit
hereunder and other commitments of such type or the
54
issuance or maintenance of or participation in any Letters of Credit (or similar contingent obligations), then, upon demand by such Lender Party
or such corporation (with a copy of such demand to the Administrative Agent), the Borrower shall
pay to the Administrative Agent for the account of such Lender Party, from time to time as
specified by such Lender Party, additional amounts sufficient to compensate such Lender Party in
the light of such circumstances, to the extent that such Lender Party reasonably determines such
increase in capital to be allocable to the existence of such Lender Party’s commitment to lend or
to issue or participate in Letters of Credit hereunder or to the issuance or maintenance of or
participation in any Letters of Credit. A certificate as to such amounts submitted to the Borrower
by such Lender Party shall be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any Facility, Lenders owed at least
50.1% of the then aggregate unpaid principal thereof notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to
such Lenders of making, funding or maintaining their Eurodollar Rate Advances for such Interest
Period, the Administrative Agent shall forthwith so notify the Borrower and the Appropriate
Lenders, whereupon (i) each such Eurodollar Rate Advance under such Facility shall automatically,
on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Appropriate Lenders to make Eurodollar Rate Advances, or to Convert Base
Rate Borrowings into or to continue Eurodollar Rate Borrowings as Eurodollar Rate Borrowings, shall
be suspended until the Administrative Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer exist. A certificate as to the
inadequacy of such costs explaining the same shall be submitted to the Borrower by the Lenders and
shall be conclusive and binding for all purposes, absent manifest error.
(d) Notwithstanding any other provision of this Agreement, if the introduction of or any
change in or in the interpretation of any law or regulation after the date hereof shall make it
unlawful, or any central bank or other governmental authority shall assert that it is unlawful, for
any Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar
Rate Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder, then, on
notice thereof and demand therefor by such Lender to the Borrower through the Administrative Agent,
(i) each Eurodollar Rate Advance under each Facility under which such Lender has a Commitment will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the obligation of the Appropriate Lenders to make Eurodollar Rate Advances,
or to Convert Base Rate Borrowings into or to continue Eurodollar Rate Borrowings as Eurodollar
Rate Borrowings, shall be suspended until the Administrative Agent shall notify the Borrower that
such Lenders have determined that the circumstances causing such suspension no longer exist.
(e) All amounts paid hereunder shall be without duplication of any amounts included within the
definition of the term “Eurodollar Rate.”
Section 2.11
Payments and Computations
. (a) The Borrower shall make each payment
hereunder and under the Notes, irrespective of any right of counterclaim or set-off (except as
otherwise provided in
Section 2.15
), not later than 12:00 noon (New York City time) on the
day when due in United States dollars to the Administrative Agent at the Administrative
55
Agent’s Account in same day funds, with payments being received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day. The Administrative Agent
will promptly thereafter cause like funds to be distributed (i) if such payment by the Borrower is
in respect of principal, interest, commitment fees or any other obligation then payable hereunder
and under the Notes to more than one Lender Party, to such Lender Parties for the account of their
respective Applicable Lending Offices ratably in accordance with the amounts of such respective
obligations then payable to such Lender Parties, and (ii) if such payment by the Borrower is in
respect of any obligation then payable hereunder to one Lender Party, to such Lender Party for the
account of its Applicable Lending Office, in each case to be applied in accordance with the terms
of this Agreement. Upon any Additional Lender becoming a Lender hereunder as a result of a
Commitment Increase pursuant to
Section 2.18
, and upon the Administrative Agent’s receipt
of such Lender’s Incremental Amendment and recording of the information contained therein in the
Register, from and after the date of such Commitment Increase the Administrative Agent shall make
all payments hereunder and under any Notes issued in connection therewith in respect of the
interest thereunder to the Additional Lender. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section
8.08(d)
or upon the purchase by any Lender of any Swing Line Advance pursuant to
Section
2.02(b)
, from and after the effective date of such Assignment and Acceptance or purchase, as
the case may be, the Administrative Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned or purchased thereby to the Lender Party assignee or purchaser
thereunder, and, in the case of an Assignment and Acceptance, the parties to any such Assignment
and Acceptance shall make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party and each of its Affiliates, if and to the
extent payment owed to such Lender Party is not made when due hereunder (after giving effect to any
period of grace), or, in the case of a Lender, under the Note held by such Lender, to charge from
time to time, to the fullest extent permitted by law, against any or all of the Borrower’s accounts
with such Lender Party or each such Affiliate any amount so due.
(c) All computations of interest based on the Base Rate shall be made by the Administrative
Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the Federal Funds Rate and of fees
and Letters of Credit commissions shall be made by the Administrative Agent on the basis of a year
of 360 days, in each case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest, fees or commissions are payable. Each
determination by the Administrative Agent of an interest rate, fee or commission hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest or
Commitment or Letter of Credit fee or commission, as the case may be; provided, however, that, if
such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be
made in the next following calendar month, such payment shall be made on the next preceding
Business Day.
56
(e) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to any Lender Party hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon
such assumption, cause to be distributed to each such Lender Party on such due date an amount equal
to the amount then due such Lender Party. If and to the extent the Borrower shall not have so made
such payment in full to the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender Party together with
interest thereon, for each day from the date such amount is distributed to such Lender Party until
the date such Lender Party repays such amount to the Administrative Agent, at the Federal Funds
Rate.
(f) If the Administrative Agent receives funds for application to the Obligations of the Loan
Parties under the Loan Documents under circumstances for which the Loan Documents do not specify
the Advances or the Facility to which, or the manner in which, such funds are to be applied, the
Administrative Agent shall distribute such funds to each Lender Party ratably in accordance with
such Lender Party’s Pro Rata Share of the sum of (i) the aggregate principal amount of all Advances
outstanding at such time and (ii) the aggregate Available Amount of all Letters of Credit then due
and payable at such time, in repayment or prepayment of such of the outstanding Advances or other
Obligations then owing to such Lender Party, and shall return any unused funds to the Borrower.
Section 2.12
Taxes
. (a) Any and all payments by the Borrower to or for the account of
any Lender Party or the Administrative Agent hereunder or under the Notes or any other Loan
Document shall be made, in accordance with
Section 2.11
or the applicable provisions of
such other Loan Document, if any, free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender Party and the Administrative Agent, taxes
that are imposed on its overall net income by the United States and taxes that are imposed on its
overall net income (and franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction under the laws of which such Lender Party or the Administrative Agent is organized or any political
subdivision thereof and, in the case of each Lender Party, taxes that are imposed on its overall
net income (and franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of
such Lender Party’s Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect
of payments hereunder or under the Notes being hereinafter referred to as “
Taxes
”). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note or any other Loan Document to any Lender Party or the Administrative
Agent, (i) the sum payable by the Borrower shall be increased as may be necessary so that after the
Borrower and the Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this
Section 2.12
) such Lender Party or the
Administrative Agent, as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make all such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
57
(b) In addition, the Borrower shall pay any present or future stamp, documentary, excise,
property or similar taxes, charges or levies that arise from any payment made by the Borrower
hereunder or under any Notes or any other Loan Document or from the execution, delivery or
registration of, performance under, or otherwise with respect to this Agreement, the Notes or the
other Loan Documents (hereinafter referred to as “
Other Taxes
”).
(c) The Borrower shall indemnify each Lender Party and the Administrative Agent for and hold
them harmless against the full amount of Taxes and Other Taxes, and for the full amount of taxes of
any kind imposed by any jurisdiction on amounts payable under this
Section 2.12
, imposed on
or paid by such Lender Party or the Administrative Agent (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such Lender Party or the
Administrative Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in
Section 8.02
, the original or a
certified copy of a receipt evidencing such payment, to the extent such a receipt is issued
therefor, or other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. In the case of any payment hereunder or under the Notes or the other Loan
Documents by or on behalf of the Borrower through an account or branch outside the United States or
by or on behalf of the Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall furnish, or shall cause
such payor to furnish, to the Administrative Agent, at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this clause (d) and clause (e) below, the terms “United States” and “United States
person” shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction outside the United States
shall, on or prior to the date of its execution and delivery of this Agreement in the case of each
Initial Lender and on the date of the Incremental Amendment or the Assignment and Acceptance
pursuant to which it becomes a Lender Party in the case of each other Lender Party, and from time to time thereafter as reasonably requested in writing by the Borrower or
promptly upon a change in any material fact disclosed on the applicable form or certificate (but,
in either case, only so long thereafter as such Lender Party remains lawfully able to do so),
provide each of the Administrative Agent and the Borrower with two original signed and complete
Internal Revenue Service Forms W-8BEN or W-8ECI (or in the case of a Lender Party entitled to claim
exemption from withholding of United States federal income tax under Section 871(h) or 881(c) of
the Internal Revenue Code (i) a certificate stating that it is not (A) a “bank” as defined in
Section 881(c)(3)(A) of the Internal Revenue Code, (B) a 10-percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Internal Revenue Code) of the Borrower or (C) a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Internal
Revenue Code), and (ii) a signed and complete Internal Revenue Service Form W-8BEN), as
appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender Party is exempt from or entitled to a reduced rate of United States withholding
tax on payments pursuant to this Agreement or the Notes or any other Loan Document or, in the case
of a Lender Party that has certified that it is not a “bank,” as described above, certifying that
such Lender Party is a foreign corporation, partnership, estate or trust. If
58
the forms provided by a Lender Party at the time such Lender Party first becomes a party to this Agreement indicate a
United States interest withholding tax rate in excess of zero, withholding tax at such rate shall
be considered excluded from Taxes unless and until such Lender Party provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such forms; provided, however, that if, at
the effective date of the Assignment and Acceptance pursuant to which a Lender Party becomes a
party to this Agreement, the Lender Party assignor was entitled to payments under clause (a) above
in respect of United States withholding tax with respect to interest paid at such date, then the
term Taxes shall include (in addition to withholding taxes that may be imposed in the future or
other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender Party assignee on such date to the extent that payment would have been
required under clause
Section 2.12(a)
above in respect of such United States withholding
tax if the interest were paid to such Lender Party assignor on such date. If any form or document
referred to in this clause (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof by Internal
Revenue Service Form W-8BEN or W-8ECI or the related certificate described above, that the
applicable Lender Party reasonably considers to be confidential, such Lender Party shall give
notice thereof to the Borrower and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender Party has failed to provide the Borrower
with the appropriate form, certificate or other document described in clause (e) above (other than
if such failure is due to a change in law, or in the interpretation or application thereof,
occurring after the date on which a form, certificate or other document originally was required to
be provided or if such form, certificate or other document otherwise is not required under clause
(e) above), such Lender Party shall not be entitled to indemnification under clause (a) or clause
(c) above with respect to Taxes imposed by the United States by reason of such failure; provided,
however, that, should a Lender Party become subject to Taxes because of its failure to deliver a
form, certificate or other document required hereunder, the Borrower shall take such steps as such
Lender Party shall reasonably request to assist such Lender Party to recover such Taxes.
(g) If the Borrower pays any amounts under this
Section 2.12
to a Lender Party and
such Lender Party determines in its reasonable discretion that it has actually received or realized
in connection therewith any refund or any reduction of, or credit against, its tax liabilities in
or with respect to the taxable year in which the amount is paid (a “
Tax Benefit
”), such Lender
Party shall pay to the Borrower an amount that the Lender Party shall reasonably determine is equal
to the net benefit, after tax, which was obtained by the Lender Party in such year as a consequence
of such Tax Benefit; provided, however, that (i) nothing in this clause
Section 2.12(g)
shall require the Lender Party to disclose any confidential information to such Loan Party
(including, without limitation, its tax returns); and (ii) no Lender Party shall be required to pay
any amounts pursuant to this clause
Section 2.12(g)
at any time during which a Default
exists.
Section 2.13
Sharing of Payments, Etc.
If any Lender Party shall obtain at any time
any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or
otherwise, other than as a result of an assignment pursuant to
Section 8.08
) (a) on account
of Obligations due and payable to such Lender Party hereunder and under the Notes and the other
Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the
59
amount of such Obligations due and payable to such Lender Party at such time to (ii) the aggregate
amount of the Obligations due and payable to all Lender Parties hereunder and under the Notes and
the other Loan Documents at such time) of payments on account of the Obligations due and payable to
all Lender Parties hereunder and under the Notes at such time obtained by all the Lender Parties at
such time or (b) on account of Obligations owing (but not due and payable) to such Lender Party
hereunder and under the Notes and the other Loan Documents at such time in excess of its ratable
share (according to the proportion of (i) the amount of such Obligations owing to such Lender Party
at such time to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes and the other Loan Documents at such time) of payments
on account of the Obligations owing (but not due and payable) to all Lender Parties hereunder and
under the Notes at such time obtained by all of the Lender Parties at such time, such Lender Party
shall forthwith purchase from the other Lender Parties such interests or participating interests in
the obligations due and payable or owing to them, as the case may be, as shall be necessary to
cause such purchasing Lender Party to share the excess payment ratably with each of them; provided,
however, that, if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender Party, such purchase from each other Lender Party shall be rescinded and such
other Lender Party shall repay to the purchasing Lender Party the purchase price to the extent of
such Lender Party’s ratable share (according to the proportion of (i) the purchase price paid to
such Lender Party to (ii) the aggregate purchase price paid to all Lender Parties) of such recovery
together with an amount equal to such Lender Party’s ratable share (according to the proportion of
(i) the amount of such other Lender Party’s required repayment to (ii) the total amount so
recovered from the purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered. The Borrower agrees that any
Lender Party so purchasing an interest or participating interest from another Lender Party pursuant
to this
Section 2.13
may, to the fullest extent permitted by law, exercise all its rights
of payment (including the right of set-off) with respect to such interest or participating
interest, as the case may be, as fully as if such Lender Party were the direct creditor of the
Borrower in the amount of such interest or participating interest, as the case may be.
Section 2.14
Use of Proceeds
. The proceeds of the Advances and issuances of Letters
of Credit shall be available (and the Borrower agrees that it shall use such proceeds and Letters
of Credit) solely (a) on the Effective Date, to pay transaction fees and expenses incurred in
connection herewith, (b) on the Effective Date, to refinance the Existing Facility Agreement, (c)
as a part of the IPO Transactions, to make Restricted Payments permitted pursuant to
Section
5.02(h)(v)
, (d) after the Effective Date, to make any other Restricted Payments permitted
pursuant to
Section 5.02(h)
, and (e) from time to time, to provide working capital and
Letters of Credit for the MLP and its Subsidiaries and for other general purposes of the MLP and
its Subsidiaries, including, without limitation, to finance Capital Expenditures permitted under
Section 5.04(c)
and Permitted Acquisitions.
Section 2.15
Defaulting Lenders
. (a) If a Lender becomes, and during the period it
remains, a Defaulting Lender, the following provisions shall apply with respect to the Revolving
Pro Rata Share of the aggregate Available Amount of all outstanding Letters of Credit and Swing
Line Advances of such Defaulting Lender:
60
(i) the Revolving Pro Rata Share of the aggregate Available Amount of all outstanding
Letters of Credit and Swing Line Advances of such Defaulting Lender shall, upon notice by
the Administrative Agent, and subject in any event to the limitation in the first proviso
below, automatically be reallocated (effective on the day such Lender becomes a Defaulting
Lender) among the Non-Defaulting Lenders ratably in accordance with their respective
Revolving Credit Commitments;
provided
that, (A) the sum of the Revolving Pro Rata
Share of the aggregate Available Amount of all outstanding Letters of Credit and Swing Line
Advances plus all outstanding Revolving Loan Advances of each Non-Defaulting Lender may not
in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in
effect at the time of such reallocation, (B) such reallocation shall not constitute a waiver
or release of any claim the Borrower, the Administrative Agent or any other Lender Party may
have against such Defaulting Lender, and (C) neither such reallocation nor any payment by a
Non-Defaulting Lender as a result thereof shall cause such Defaulting Lender to be a
Non-Defaulting Lender;
(ii) to the extent that any portion (the “
unreallocated portion
”) of the Defaulting
Lender’s Revolving Pro Rata Share of the aggregate Available Amount of all outstanding
Letters of Credit and Swing Line Advances cannot be so reallocated, whether by reason of the
first proviso in clause (i) above or otherwise, the Borrower shall, not later than three
Business Days after demand by the Administrative Agent, (A) Cash Collateralize the
obligations of the Borrower to the Issuing Bank and the Swing Line Bank in an amount at
least equal to the aggregate amount of the unreallocated portion, (B) in the case of a
Defaulting Lender’s Revolving Pro Rata Share of all Swing Loan Advances, prepay in full the
unreallocated portion thereof, or (C) make other arrangements satisfactory to the
Administrative Agent, the Issuing Bank and the Swing Line Bank in their sole discretion to
protect them against the risk of non-payment by such Defaulting Lender; and
(iii) any amount paid by the Borrower for the account of a Defaulting Lender under this
Agreement (whether on account of principal, interest, fees, indemnity payments or other
amounts) shall not be paid or distributed to such Defaulting Lender, but shall instead be
retained by the Administrative Agent in a segregated non-interest bearing escrow account
until (subject to
Section 2.15(c)
) the termination of the Revolving Credit
Commitments and payment in full of all obligations of the Borrower hereunder and shall be
applied by the Administrative Agent, to the fullest extent permitted by law, to the making
of payments from time to time in the following order of priority:
first
to the
payment of any amounts owing by such Defaulting Lender to the Administrative Agent under
this Agreement,
second
to the payment of any amounts owing by such Defaulting Lender
to the Issuing Bank or the Swing Line Bank (ratably as to the respective amounts owing to
each of them) under this Agreement,
third
to the payment of post-default interest
and then current interest due and payable to the Non-Defaulting Lenders hereunder, ratably
among them in accordance with the amounts of such interest then due and payable to them,
fourth
to the payment of fees then due and payable to the Non-Defaulting Lenders
hereunder, ratably among them in accordance with the amounts of such fees then due and
payable to them,
fifth
to pay principal and unreimbursed L/C Disbursements then due
and payable to the Non-Defaulting Lenders hereunder ratably in accordance with the amounts
thereof then due and payable to them,
sixth
to the ratable
61
payment of other amounts then due and payable to the Non-Defaulting Lenders, and
seventh
, after the
termination of the Revolving Credit Commitments and payment in full of all obligations of
the Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Lender
or as a court of competent jurisdiction may otherwise direct.
(b) If any Lender becomes, and during the period it remains, a Defaulting Lender or a
Potential Defaulting Lender, if any Letter of Credit or Swing Line Advance is at the time
outstanding, the Issuing Bank or the Swing Line Bank, as the case may be, may (except, in the case
of a Defaulting Lender, to the extent the Commitments have been reallocated pursuant to
Section
2.15(a)
), by notice to the Borrower and such Defaulting Lender or Potential Defaulting Lender
through the Administrative Agent, require the Borrower to Cash Collateralize the obligations of the
Borrower to the Issuing Bank or the Swing Line Bank in respect of such Letter of Credit or Swing
Line Advance, as the case may be, in an amount at least equal to the aggregate amount of the
obligations (contingent or otherwise) of such Defaulting Lender or such Potential Defaulting Lender
in respect thereof, or to make other arrangements satisfactory to the Administrative Agent, and the
Issuing Bank or the Swing Line Bank, as the case may be, in their sole discretion to protect them
against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender.
(c) If the Borrower, the Administrative Agent, the Issuing Bank and the Swing Line Bank agree
in writing that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting
Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective
date specified in such notice and subject to any conditions set forth therein (which may include
arrangements with respect to any amounts then held in the segregated escrow account referred to in
Section 2.15(a)
), such Lender shall purchase such portions of the outstanding Advances of
the other Lenders, and/or make such other adjustments, as the Administrative Agent may determine to
be necessary to cause the Lenders to hold Advances on a ratable basis in accordance with their
respective Revolving Credit Commitments, whereupon such Lender shall cease to be a Defaulting Lender and will be a Non-Defaulting Lender (and the
Revolving Pro Rata Share of the aggregate Available Amount of all outstanding Letters of Credit and
Swing Line Advances of each Lender shall automatically be adjusted on a prospective basis to
reflect the foregoing); provided that no adjustments shall be made retroactively with respect to
fees accrued while such Lender was a Defaulting Lender; and provided, further, that, except to the
extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting
Lender to Non-Defaulting Lender shall constitute a waiver or release of any claim of any party
hereunder arising from such Lender having been a Defaulting Lender.
Section 2.16
Evidence of Debt
. (a) Each Lender Party shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Advance owing to such Lender Party from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to time hereunder. The
Borrower agrees that, upon notice by any Lender Party to the Borrower (with a copy of such notice
to the Administrative Agent) to the effect that a promissory note or other evidence of indebtedness
is required or appropriate in order for such Lender Party to evidence (whether for purposes of
pledge, enforcement or otherwise) the Advances owing to, or to be made by, such Lender Party, the
Borrower shall promptly execute and deliver to such Lender Party, with a copy to the Administrative
Agent, a Note, in substantially the forms of
62
Exhibit A-1
or
Exhibit A-2
hereto, as applicable, payable to the order of such Lender Party in a principal amount equal to the Revolving
Credit Commitment of such Lender Party. All references to Notes in the Loan Documents shall mean
Notes, if any, to the extent issued hereunder.
(b) The Register shall include a control account, and a subsidiary account for each Lender
Party, in which accounts (taken together) shall be recorded (i) the date and amount of each
Borrowing made hereunder, the Type of Advances comprising such Borrowing and, if appropriate, the
Interest Period applicable thereto, (ii) the terms of each Incremental Amendment and each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each Lender Party
hereunder, and (iv) the amount of any sum received by the Administrative Agent from the Borrower
hereunder and each Lender Party’s share thereof.
(c) Entries made in good faith by the Administrative Agent in the Register pursuant to clause
(b) above, and by each Lender Party in its account or accounts pursuant to clause (a) above, shall
be prima facie evidence of the amount of principal and interest due and payable or to become due
and payable from the Borrower to, in the case of the Register, each Lender Party and, in the case
of such account or accounts, such Lender Party, under this Agreement, absent manifest error;
provided, however, that the failure of the Administrative Agent or such Lender Party to make an
entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of the Borrower under this Agreement.
Section 2.17
Replacement of Certain Lenders
.
(a) If any Lender (a “
Subject Lender
”) (i) is a Defaulting Lender, (ii) makes demand upon the
Borrower for (or if the Borrower is otherwise required to pay) amounts pursuant to
Section
2.10(a)
or
Section 2.10(b)
or
Section 2.12
or (iii) gives notice pursuant to
Section 2.10(d)
requiring a Conversion of such Subject Lender’s Eurodollar Rate Advances to
Base Rate Advances or suspending such Lender’s obligation to make Advances as, or to Convert or
continue Advances into or as, Eurodollar Rate Advances, the Borrower may, within 90 days after
receipt by the Borrower of such demand or notice (or the occurrence of such other event causing the
Borrower to be required to pay such compensation), as the case may be, give notice (a “
Replacement
Notice
”) in writing to the Administrative Agent and such Subject Lender of its intention to replace
such Subject Lender with an Eligible Assignee designated in such Replacement Notice (a “
Replacement
Lender
”). Such Subject Lender shall, subject to the payment to such Subject Lender of any amounts
due pursuant to
Section 2.10(a)
and
Section 2.10(a)
and
Section 2.12
and
all other amounts then owing to it under the Loan Documents, assign, in accordance with
Section
8.08
, all of its Commitments, Advances, Notes and other rights and obligations under this
Agreement and all other Loan Documents to such proposed Eligible Assignee. Promptly upon the
effective date of an assignment described above, the Borrower shall issue a replacement Note or
Notes, as the case may be, to such Replacement Lender and such Replacement Lender shall become a
“Lender” for all purposes under this Agreement and the other Loan Documents.
63
(b) Anything herein to the contrary notwithstanding, if at any time the Required Lenders
determine that the Person serving as the Administrative Agent is (without taking into account any
provision in the definition of “Defaulting Lender” or “Potential Defaulting Lender” requiring
notice from the Administrative Agent or any other party) a Defaulting Lender or a Potential
Defaulting Lender, the Required Lenders (determined after giving effect to
Section 8.01
)
may by notice to the Borrower and such Person remove such Person as the Administrative Agent and,
in consultation with the Borrower, appoint a replacement as the Administrative Agent hereunder,
provided that such removal shall, to the fullest extent permitted by applicable law, in any event
become effective if no such replacement Administrative Agent is appointed hereunder within three
days after the giving of such notice.
Section 2.18
Increase in the Aggregate Commitments
. (a) The Borrower may at any time and
from time to time after the Effective Date, by notice to the Administrative Agent (whereupon the
Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request
(i) one or more additional tranches or additions to an existing tranche of term loans (the
“
Incremental Term Advances
”) or (ii) one or more increases in the amount of the Revolving Credit
Commitments on the same terms as the Revolving Credit Facility (except for interest rate margins
and commitment fees as set forth below) (a “
Revolving Commitment Increase
”) in an aggregate
principal amount up to $25,000,000 (each a “
Commitment Increase
”); provided that (A) both at the
time of any such request and upon the effectiveness of any Incremental Amendment referred to below,
no Default or Event of Default shall exist and at the time that any such Incremental Term Advance
is made (and after giving effect thereto) no Default or Event of Default shall exist and (B) the
MLP shall be in compliance with the covenants set forth in
Section 5.04
determined on a pro
forma basis for the period most recently ended for which financial statements are required to be
delivered pursuant to
Section 5.03(b)
or
Section 5.03(c)
, as the case may be, as if
such Incremental Term Advances or any Borrowings under any such Revolving Commitment Increases, as applicable, had been outstanding on
the last day of such fiscal quarter of the MLP for testing compliance therewith. Each tranche of
Incremental Term Advances and each Revolving Commitment Increase shall be in an increment of
$5,000,000 or a multiple thereof. The Incremental Term Advances (i) shall rank pari passu in right
of payment and of security with the Revolving Credit Borrowings and the Term Loan Borrowings, (ii)
shall not mature earlier than the Term Loan Maturity Date with respect to the Term Loans and (iii)
shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life
to Maturity of then existing Term Loan Borrowings, and the Applicable Rate for any Incremental
Facility, and, subject to clause (iii) in this sentence, amortization for the Incremental Term
Advances, shall be determined by the Borrower and the applicable new Lenders; provided, however,
that (A) the interest rate margins for any Incremental Facility shall not be greater than the
highest interest rate margins that may, under any circumstances, be payable with respect to Term
Loan Borrowings, Revolving Credit Borrowings and/or other Incremental Facility, as the case may be
(unless the interest rate margins applicable to the Term Loan Borrowings, Revolving Credit
Borrowings and/or other Incremental Facility, as the case may be, are increased to the extent
necessary to achieve the foregoing), (B) solely for purposes of the foregoing clause (A), the
interest rate margins applicable to any Term Loan Borrowings, Revolving Credit Borrowings and/or
other Incremental Facility, as the case may be, shall be deemed to include all upfront or similar
fees or original issue discount payable by the Borrower generally to the Lenders providing such
Term Loan Borrowings, Revolving Credit Borrowings and/or other Incremental Facility, as the case
64
may be, based on an assumed three-year life to maturity, and (C) if the lowest permissible
Eurodollar Rate is greater than 1.0% or the lowest permissible Base Rate is greater than 2.0% for
such Incremental Facility, the difference between such “floor” and 1.0% in the case of the
Eurodollar Rate Incremental Facility, or the difference between such “floor” and 2.0% in the case
of the Base Rate Incremental Facility, shall be equated to interest rate margin for purposes of the
immediately preceding clause (A) above; provided that, except as provided above, the terms and
conditions applicable to Incremental Term Advances may be materially different from those of the
Term Loan Advances to the extent such differences are reasonably satisfactory to the Administrative
Agent. Each notice from the Borrower pursuant to this
Section 2.18
shall set forth the
requested amount and proposed terms of the relevant Incremental Term Advances or Revolving
Commitment Increases. Incremental Term Advances may be made, and Revolving Commitment Increases
may be provided, by any existing Lender (but each existing Lender will not have an obligation to
make a portion of any Incremental Term Advance or any portion of any Revolving Commitment Increase)
or by any other bank or other financial institution (any such other bank or other financial
institution being called an “
Additional Lender
”), provided that the Administrative Agent, Issuing
Bank and/or Swing Line Bank, as applicable, shall have consented (not to be unreasonably withheld,
conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term
Advances or providing such Revolving Commitment Increases to the extent any such consent would be
required under
Section 8.08(a)
for an assignment of Advances or Commitments, as applicable,
to such Lender or Additional Lender. Commitments in respect of Incremental Term Advances and
Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment
Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s
applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment to this
Agreement (an “
Incremental Amendment
”) and, as appropriate, the other Loan Documents, executed by
the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any,
and the Administrative Agent. The Incremental Amendment may, without the consent of the Borrower
or any other Loan Party, effect such amendments to this Agreement and the other Loan Documents as
may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the
Borrower, to effect the provisions of this
Section 2.18
. No Lender shall be obligated to
provide any Incremental Term Advances or Revolving Commitment Increases, unless it so agrees. Upon
each increase in the Revolving Credit Commitments pursuant to this
Section 2.18
, (i) if the
increase relates to the Revolving Credit Facility, each Lender with a Revolving Credit Commitment
immediately prior to such increase will automatically and without further act be deemed to have
assigned to each Lender providing a portion of the Revolving Commitment Increase (each, a
“
Revolving Commitment Increase Lender
”), and each such Revolving Commitment Increase Lender will
automatically and without further act be deemed to have assumed (in the case of an increase to the
Revolving Credit Facility only) a portion of such Lender’s participations hereunder in outstanding
Letters of Credit and Swing Line Advances such that, after giving effect to each such deemed
assignment and assumption of participations, the percentage of the aggregate outstanding (A)
participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line
Advances held by each such Lender (including each such Revolving Commitment Increase Lender) will
equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders
represented by such Revolving Credit Lender’s Revolving Credit Commitment and (ii) if, on the date
of such increase, there are any Revolving Credit Loans under the applicable Facility
65
outstanding, such Revolving Credit Advances shall on or prior to the effectiveness of such Revolving Commitment
Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder
(reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied
by accrued interest on the Revolving Credit Advances being prepaid and any costs, processing fees
and recordation fees incurred by any Lender in accordance with
Section 8.08(a)
. The
Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing
and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the
transactions effected pursuant to the immediately preceding sentence. The provisions of this
Section 2.18
shall prevail over any provisions in
Section 2.13
or
Section
8.08
to the contrary.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01
Conditions Precedent
. The obligations of the Lenders to make Advances
and of the Issuing Lender to issue Letters of Credit shall not become effective until the following
conditions have been satisfied (or waived in writing pursuant to
Section 8.01
):
(a) The Administrative Agent (or its counsel) shall have received on or before the day of the
Initial Extension of Credit the following, each dated such day (unless otherwise specified),
in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise
specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) A counterpart of this Agreement signed on behalf of such party (which may include
telecopy transmission of a signed signature page of this Agreement).
(ii) Each of the Security Documents signed on behalf of each applicable Loan Party
which shall constitute satisfactory security documentation to create first priority security
interests in all personal property of the Loan Parties, free and clear of all Liens other
than Permitted Liens.
(iii) Mortgages signed on behalf of each applicable Loan Party which shall constitute
satisfactory security documentation to create first priority liens in all real property of
the Loan Parties other than Excluded Leased Real Property, free and clear of all Liens other
than Permitted Liens.
(iv) The Notes payable to the order of the Lenders that have requested Notes prior to
the Effective Date.
(v) Certified copies of the resolutions (or excepts thereof) of or on behalf of each
Loan Party approving the Transaction (to the extent applicable to it) and each Transaction
Document to which it is or is to be a party and/or authorizing the general partner, managing
member or officers, as applicable, to act on behalf of such limited partnership or limited
liability company, as the case may be, and of all documents evidencing other necessary
action (including, without limitation, all necessary general partner, managing member, board
of directors or other similar action) and governmental
66
and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it
is or is to be a party.
(vi) A copy of a certificate of the Secretary of State of the jurisdiction of
organization or formation of each Loan Party and (if applicable) each general partner or
managing member of each Loan Party dated reasonably near the date of the Initial Extension
of Credit, certifying (A) as to a true and correct copy of the Constitutive Documents of
such Person and each amendment thereto on file in such Secretary’s office, (B) that (I) such
amendments are the only amendments to such Person’s Constitutive Documents on file in such
Secretary’s office and (II) such Person has paid all franchise taxes to the date of such
certificate and (C) such Person is duly formed and in good standing or presently subsisting
under the laws of the State of the jurisdiction of its organization or formation.
(vii) A copy of a certificate of the Secretary of State of each jurisdiction in which
any Loan Party or any general partner or managing member, as applicable, of any Loan Party
is required to be qualified to do business, dated reasonably near the date of the Initial
Extension of Credit, stating that such Person is duly qualified and in good standing as a
foreign corporation, limited partnership or limited liability company, as applicable, in
such State and has filed all annual reports required to be filed in such State to the date
of such certificate.
(viii) A certificate of each Loan Party or on its behalf by the managing general
partner or managing member, as applicable, of each Loan Party, signed on behalf of such
Person by its President or a Vice President and its Secretary or any Assistant Secretary (or
persons performing similar functions), dated the date of the Initial Extension of Credit
(the statements made in which certificate shall be true on and as of the date of the Initial
Extension of Credit), certifying as to (A) the absence of any amendments to the Constitutive
Documents of such Person on file in the Secretary of State’s office since the date of such
Secretary’s certificate referred to in clause
Section 3.01(a)(vi)
above, (B) a true
and correct copy of the bylaws or limited liability company agreement (or similar
Constitutive Documents) as in effect on the date on which the resolutions referred to in
clause
Section 3.01(a)(v)
above were adopted and on the date of the Initial
Extension of Credit, (C) the due organization or formation and good standing or valid
existence of such Person as a corporation, a limited liability company or a limited
partnership, as the case may be, organized or formed under the laws of the jurisdiction of
its organization or formation, and the absence of any proceeding for the dissolution or
liquidation of such Person, (D) the truth of the representations and warranties contained in
the Loan Documents as though made on and as of the date of the Initial Extension of Credit
and (E) the absence of any event occurring and continuing, or resulting from the Initial
Extension of Credit, that constitutes a Default.
(ix) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on
its behalf by its managing general partner or managing member, as applicable, certifying the
names and true signatures of the officers or managers, as applicable, of such Person
authorized to sign on its behalf each Transaction Document to which it is or is to be a
party and the other documents to be delivered hereunder and thereunder.
67
(x) A certificate, substantially in the form of
Exhibit E
hereto (the “
Solvency
Certificate
”), attesting to the Solvency of the Loan Parties before and after giving effect
to the Transaction, from the chief financial officer (or Person performing similar
functions) of the General Partner.
(xi) A financial forecast which is a Financial Forecast (except that it shall be
through Fiscal Year 2014) in form and scope reasonably satisfactory to the Administrative
Agent.
(xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the
Initial Extension of Credit.
(xiii) Favorable opinions of (i) Squire, Sanders & Dempsey L.L.P., counsel for the Loan
Parties, and (ii) local counsel for the Loan Parties in each of Kentucky, Pennsylvania, and
West Virginia, each in form and substance reasonably satisfactory to the Administrative
Agent and its counsel.
(xiv) Satisfactory audited Consolidated financial statements of the MLP for its Fiscal
year ended December 31, 2009, such financial statements being prepared in accordance with
GAAP.
(xv) Satisfactory unaudited interim consolidated financial statements of the MLP for
its fiscal quarter ended March 31, 2010, such financial statements being prepared in
accordance with GAAP, excluding footnotes (other than footnotes to the extent the same are
included in the Registration Statement) and otherwise subject to year-end audit adjustments.
(xvi) Evidence reasonably satisfactory to the Administrative Agent of completion of the
IPO (other than the IPO Shoe) with minimum gross proceeds of $125,000,000.
(xvii) Evidence reasonably satisfactory to the Administrative Agent that substantially
simultaneously with the Initial Extension of Credit the Existing Facility Agreement will be
paid in full and terminated.
(xviii) All Patriot Act and “know-your-customer” disclosures reasonably requested by
the Administrative Agent.
(xix) All Phase I assessments or other environmental reports prepared for the last
three years for or with respect to the MLP and its Subsidiaries.
(xx) A satisfactory reasonableness review performed by John T. Boyd Company for the
benefit of the Lenders.
(xxi) Evidence reasonably satisfactory to the Administrative Agent that the Loan
Parties have obtained the insurance policies required under
Section 5.01(d)
, and
that such policies are in full force and effect.
68
(xxii) Evidence satisfactory to the Administrative Agent that the Loan Parties have
obtained the Key-Man Life Insurance Policies and that the same are in full force and effect
and have been collaterally assigned to the Administrative Agent for the ratable benefit of
the Lender Parties.
(xxiii) Title opinions, title reports or other title diligence as requested by, and in
form and substance reasonably satisfactory to, the Administrative Agent.
(xxiv) All other due diligence items and materials as reasonably requested by the
Administrative Agent or its counsel.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the
General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the
Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have
a Material Adverse Effect other than the matters satisfactory to the Administrative Agent and
described on
Schedule 4.01(f)
hereto (the “
Disclosed Litigation
”) or (ii) purports to
affect the legality, validity or enforceability of any Transaction Document or the consummation of
the Transaction, and there shall have been no material adverse change, in the status or financial
effect on the General Partner, any Loan Party or any of its Subsidiaries, of the Disclosed
Litigation from that described on
Schedule 4.01(f)
hereto.
(c) All Governmental Authorizations and third party consents and approvals necessary in
connection with the Transaction shall have been obtained or shall be in the process of being
obtained so long as it is not anticipated that such consents and approvals may not be obtained (in
each case without the imposition of any conditions that are not acceptable to the Lender Parties)
and those obtained shall be in effect (other than those the failure of which to obtain would
individually or collectively be reasonably likely not to have a Material Adverse Effect); and no
law or regulation shall be applicable in the judgment of the Lender Parties, in each case that
restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of
the General Partner, the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose
of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets
of any Loan Party or its Subsidiaries.
(d) The Borrower shall have paid all accrued fees of the Administrative Agent, the Joint Lead
Arrangers and the Lender Parties and all reasonable expenses of the Administrative Agent (including
the reasonable fees and expenses of Andrews Kurth LLP, counsel to the Administrative Agent) to the
extent such fees and expenses have been invoiced prior to the date hereof or are specifically set
forth in the Fee Letter.
To the extent the foregoing conditions are not satisfied or waived in writing by the Administrative
Agent, by 12:00 noon (New York City time) on July 26, 2010, this Agreement shall terminate and
shall be of no further force and effect, except to the extent of any provisions that expressly
survive under
Section 8.17
.
69
Section 3.02
Conditions Precedent to Each Borrowing, Commitment Increase and Issuance and
Renewal
.
(a) The obligation of each Appropriate Lender to make an Advance (other than a Letter of
Credit Advance made by an Issuing Bank or a Lender pursuant to
Section 2.03(c)
and a Swing
Line Advance made by a Lender pursuant to
Section 2.02(b)
) on the occasion of each
Borrowing (including the initial Borrowing) and to make each Commitment Increase, and the
obligation of the Issuing Bank to issue a Letter of Credit (including the initial issuance) or
renew a Letter of Credit and the right of the Borrower to request a Swing Line Borrowing, shall be
subject to the further conditions precedent that on the date of such Borrowing or date of issuance
or renewal the following statements shall be true (and each of the giving of the applicable Notice
of Borrowing, Notice of Swing Line Borrowing, request for Commitment Increase, Notice of Issuance
or Notice of Renewal and the acceptance by the Borrower of the proceeds of such Borrowing or of
such Letter of Credit or the renewal of such Letter of Credit shall constitute a representation and
warranty by the Borrower that both on the date of such notice and on the date of such Borrowing or
issuance or renewal such statements are true):
(i) the representations and warranties contained in each Loan Document are correct in
all material respects (except for representations and warranties already qualified by
materiality, which shall be true and correct in all respects) on and as of such date, before
and after giving effect to such Borrowing, Commitment Increase or issuance or renewal and to
the application of the proceeds therefrom, as though made on and as of such date, other than any such representations or warranties that, by their terms,
refer to an earlier date, in which case as of such earlier date; and
(ii) no Default has occurred and is continuing, or would result from such Borrowing,
Commitment Increase or issuance or renewal or from the application of the proceeds
therefrom.
(b) In addition to the other conditions precedent herein set forth, if any Lender becomes, and
during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing
Bank will not be required to issue any Letter of Credit or to amend any outstanding Letter of
Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry
date thereof, and the Swing Line Bank will not be required to make any Swing Line Advance, unless:
(i) in the case of a Defaulting Lender, the Revolving Pro Rata Share of the aggregate
Available Amount of all outstanding Letters of Credit and Swing Line Advances of such
Defaulting Lender is reallocated, as to outstanding and future Letters of Credit Advances
and Swing Line Advances, to the Non-Defaulting Lenders as provided in
Section
2.15(a)(i)
, and
(ii) to the extent full reallocation does not occur as provided in clause (i) above,
without limiting the provisions of
Section 2.15(b)
, the Borrower Cash Collateralizes
the obligations of the Borrower in respect of such Letter of Credit Advances or Swing Line
Advances in an amount at least equal to the aggregate amount of the obligations (contingent
or otherwise) of such Defaulting Lender or such Potential Defaulting Lender in respect of
such Letter of Credit Advances or Swing Line Advances, or makes other arrangements
satisfactory to the Administrative Agent, the Issuing Bank
70
and the Swing Line Bank in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or
Potential Defaulting Lender, or
(iii) to the extent that neither reallocation nor Cash Collateralization occurs
pursuant to clause (i) and/or clause (ii) above, then in the case of a proposed issuance of
a Letter of Credit or making of a Swing Line Advance, by an instrument or instruments in
form and substance satisfactory to the Administrative Agent, and to the Issuing Bank or the
Swing Line Bank, as the case may be, (A) the Borrower agrees that the Available Amount of
such requested Letter of Credit or the principal amount of such requested Swing Line Advance
will be reduced by an amount equal to the portion thereof as to which such Defaulting Lender
or Potential Defaulting Lender would otherwise be liable, and (B) the Non-Defaulting Lenders
confirm, in their discretion, that their obligations in respect of such Letter of Credit or
Swing Line Advance shall be on a ratable basis in accordance with the Revolving Credit
Commitments of the Non-Defaulting Lenders, and that the ratable payment provisions of
Section 2.02
and
Section 2.03
shall be deemed adjusted to reflect this
provision (
provided
that nothing in this clause (iii) shall be deemed to increase
the Revolving Credit Commitment of any Lender, nor to constitute a waiver or release of any
claim the Borrower, the Administrative Agent or any other Lender Party may have against such
Defaulting Lender, nor to cause such Defaulting Lender to be a Non-Defaulting Lender).
Section 3.03
Determinations Under Section 3.01
. For purposes of determining
compliance with the conditions specified in
Section 3.01
, each Lender Party shall be deemed
to have consented to, approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or satisfactory to the Lender
Parties unless an officer of the Administrative Agent responsible for the transactions contemplated
by the Loan Documents shall have received notice from such Lender Party prior to the Initial
Extension of Credit specifying its objection thereto and, if the Initial Extension of Credit
consists of a Borrowing, such Lender Party shall not have made available to the Administrative
Agent such Lender Party’s ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01
Representations and Warranties of Borrower
. Each Loan Party on behalf of
itself and on behalf of each of its Subsidiaries represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries and each managing general partner or managing
member of each Loan Party (i) is a corporation, limited partnership or limited liability company,
as the case may be, duly organized or formed, validly existing and in good standing or validly
subsisting under the laws of the jurisdiction of its organization or formation, (ii) is duly
qualified and in good standing as a foreign corporation, limited partnership or limited liability
company in each other jurisdiction in which it owns or leases property or in which the conduct of
its business requires it to so qualify or be licensed, except where failure to be so qualified,
could not reasonably be expected to have a Material Adverse Effect, and (iii) has all requisite
corporate, limited liability company or partnership power and authority (including,
71
without limitation, all material Governmental Authorizations other than such Governmental Authorizations
that are being obtained in the ordinary course of business or that, if not obtained, are not
reasonably likely to result in a Material Adverse Effect) to own or lease and operate its
properties and to carry on its business as now conducted. All of the outstanding Capital Stock in
the Borrower has been validly issued, is fully paid (to the extent required under the Partnership
Agreement ) and non-assessable (except as such non-assessability may be affected by section 17-607
of the Delaware Revised Uniform Limited Partnership Act) and is owned by the Persons in the amounts
specified on the applicable portion of
Schedule 4.01(a)
hereto free and clear of all Liens.
(b) Set forth on
Schedule 4.01(b)
hereto is a complete and accurate list of all
Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the
jurisdiction of its organization, the number of shares or units of each class of its Capital Stock
authorized, and the number of such shares or units outstanding, as of the date hereof, and the
percentage of each such class of its Capital Stock owned (directly or indirectly) by such Loan
Party and the number of shares or units covered by all outstanding options, warrants, rights of
conversion or purchase and similar rights as of the date hereof. All of the outstanding Capital
Stock in each Loan Party’s Subsidiaries has been validly issued, is fully paid (to the extent
required by such Subsidiary’s operating agreement, in the case of a limited liability company) and
non-assessable (except as such non-assessability may be affected by section 18-607 of the Delaware
Limited Liability Company Act, in the case of a limited liability company) and is owned by such
Loan Party and/or one or more of its Subsidiaries free and clear of all Liens.
(c) The execution, delivery and performance by each Loan Party of each Transaction Document to
which it is or is to be a party, the execution, delivery and performance by the General Partner of
each Transaction Document to which it is a party, and the consummation of the Transaction by each
Loan Party to the extent applicable to it, are within such Loan Party’s or such Loan Party’s
managing general partner’s or managing member’s corporate, partnership or limited liability company
powers, have been duly authorized by all necessary action by or on behalf of the General Partner or
such Loan Party (including, without limitation, all necessary general partner, managing member or
other similar action), and do not (i) contravene such Loan Party’s or such Loan Party’s managing
general partner’s or managing member’s Constitutive Documents, (ii) violate any law, rule,
regulation (including, without limitation, Regulations T, U and X of the Board of Governors of the
Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii)
conflict with or result in the breach of, or constitute a default or require any consent to be
obtained (except to the extent the failure to obtain such consent will not be reasonably expected
to have a Material Adverse Effect) or any payment to be made under, any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding on or affecting the General
Partner, any Loan Party or any of its Subsidiaries or any of their properties (excluding the
Existing Facility Agreement) or (iv) except for the Liens, if any, created under the Loan
Documents, result in or require the creation or imposition of any Lien upon or with respect to any
of the properties of any Loan Party or any of its Subsidiaries. Neither the General Partner nor
any Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach
of which would be reasonably likely to have a Material Adverse Effect.
72
(d) No Governmental Authorization, and no notice to or filing with, any Governmental Authority
or any other third party is required for (i) the due execution, delivery, recordation, filing or
performance by or on behalf of any Loan Party or any general partner or managing member of any Loan
Party of any Transaction Document to which it is or is to be a party or for the consummation of the
Transaction applicable to it or (ii) the exercise by the Administrative Agent or any Lender Party
of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices
and filings listed on
Schedule 4.01(d)
hereto, all of which have been duly obtained, taken,
given or made and are in full force and effect (other than those the failure of which to obtain
would not individually or collectively be reasonably expected to have a Material Adverse Effect).
(e) This Agreement has been, and each other Transaction Document when delivered hereunder will
have been, duly executed and delivered by each Loan Party thereto. This Agreement is, and each
other Transaction Document when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party thereto, enforceable against such Loan Party in accordance with its
terms, subject, as to enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally, and subject, as to enforceability, to general principles
of equity. The Transaction Documents to which the General Partner is a party have been duly
executed and delivered by the General Partner. Each Transaction Document to which the General
Partner is a party is the legal, valid and binding obligation of the General Partner, enforceable
against the General Partner in accordance with its terms, subject, as to enforcement of remedies,
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar
laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to
general principles of equity.
(f) There is no action, suit, investigation, litigation or proceeding affecting the General
Partner, or any Loan Party or any of its Subsidiaries, including any Environmental Action, pending
or, to the best knowledge of the Borrower, threatened before any Governmental Authority or
arbitrator that (i) would be reasonably expected to be adversely determined, and if so determined
would be reasonably expected to have a Material Adverse Effect, except as set forth on
Schedule
4.01(f)
hereto, or (ii) purports to affect the legality, validity or enforceability of any
Transaction Document or the consummation of the Transaction applicable to the General Partner or
such Loan Party, and there has been no material adverse change in the status or financial effect,
on the General Partner or any Loan Party or any of its Subsidiaries, of the Disclosed Litigation
from that described on
Schedule 4.01(f)
hereto.
(g) With respect to financial statement matters:
(i) The Consolidated balance sheet of the MLP and its Subsidiaries as of December 31,
2009 and the related Consolidated statement of operations and Consolidated statement of cash
flows of the MLP and its Subsidiaries for the Fiscal Year then ended, accompanied by an
unqualified opinion of Grant Thornton, independent public accountants, and the Consolidated
balance sheet of the MLP and its Subsidiaries as of March 31, 2010, and the related
Consolidated statement of operations and Consolidated statement of cash flows of the MLP and
its Subsidiaries for the three months then ended, duly certified by the chief financial
officer (or Person performing
73
similar functions) of the General Partner, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of said
balance sheet as of March 31, 2010, and said statements of income and cash flows for the
three months then ended, to year-end audit adjustments, the Consolidated financial condition
of the MLP and its Subsidiaries as of such dates and the Consolidated results of operations
of the MLP and its Subsidiaries for the periods ended on such dates, all in accordance with
GAAP applied on a consistent basis, excluding footnotes (other than footnotes to the extent
the same are included in the Registration Statement);
(ii) The pro forma Consolidated balance sheets of the MLP and its Subsidiaries as of
December 31, 2009 and March 31, 2010 and the related pro forma Consolidated statements of
operations of the MLP and its Subsidiaries for the year-ended December 31, 2009 and the
three-month period ended March 31, 2010, duly certified by the chief financial officer (or
Person performing similar functions) of the General Partner, copies of which have been
furnished to each Lender Party, include assumptions that provide a reasonable basis for
presenting the significant effects directly attributable to the transactions and events described therein; the related pro forma adjustments give
appropriate effect to those assumptions and reflect the proper application of those
adjustments to the historical financial statement amounts in such Consolidated pro forma
balance sheets and Consolidated statements of operations; and such Consolidated pro forma
balance sheets and Consolidated statements of operations comply as to form in all material
respects with the applicable requirements of Regulation S-X under the Securities Act; and
(iii) Since March 31, 2010, no event shall have occurred, and no condition shall exist,
which has or which could reasonably be expected to result in a Material Adverse Effect.
(h) The Consolidated and consolidating forecasted balance sheets, statements of operations and
statements of cash flows of the MLP and its Subsidiaries for the period through Fiscal Year 2014
delivered to the Lender Parties prior to the Effective Date pursuant to
Section 3.01(a)(xi)
were prepared in good faith on the basis of the assumptions stated therein, which assumptions were
fair in light of the conditions existing at the time of delivery thereof, and represented, at the
time of delivery thereof, the MLP’s reasonable estimate of its future financial performance.
(i) Neither any written information, exhibit or report furnished by or on behalf of any Loan
Party to the Administrative Agent or any Lender Party in connection with the negotiation and
syndication of the Loan Documents or pursuant to the terms of the Loan Documents, nor the
information contained in the MLP’s public filings (as updated from time to time), when taken as a
whole, contained any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading in light of the circumstances under
which the same were made.
(j) None of the Loan Parties or any of their Subsidiaries is engaged in the business of
extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any
74
Advance or drawings under any Letter of Credit will be used to purchase or carry any Margin Stock
or to extend credit to others for the purpose of purchasing or carrying any Margin Stock.
(k) None of the Loan Parties or any of their Subsidiaries is an “investment company,” or an
“affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as amended. None of the making of
any Advances, the issuance of any Letters of Credit, the application of the proceeds or repayment
thereof by the Borrower or the consummation of the other transactions contemplated by the
Transaction Documents will violate any provision of such Act or any rule, regulation or order of
the Commission thereunder.
(l) None of the Loan Parties or any of their Subsidiaries is a party to any indenture, loan or
credit agreement or any lease or other agreement or instrument or subject to any charter or
corporate restriction that would be reasonably likely to have a Material Adverse Effect.
(m) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(n) With respect to all Plans and Multiemployer Plans:
(i) Set forth on
Schedule 4.01(n)
hereto is a complete and accurate list of all
Plans and Multiemployer Plans.
(ii) No ERISA Event has occurred or is reasonably expected to occur with respect to any
Plan which could reasonably be expected to result in a Material Adverse Effect.
(iii) Schedule B (Actuarial Information) to the most recent annual report (Form 5500
Series) for each Plan, a copy of each of which has been filed with the Internal Revenue
Service and furnished to the Administrative Agent, is complete and accurate and fairly
presents the funding status of such Plan, and since the date of such Schedule B there has
been no change in such funding status which could reasonably be expected to result in a
Material Adverse Effect.
(iv) Neither any Loan Party nor any ERISA Affiliate of such Loan Party has incurred or
is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which
could reasonably be expected to result in a Material Adverse Effect.
(v) Neither any Loan Party nor any ERISA Affiliate of such Loan Party has been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or
has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan
is reasonably expected to be in reorganization or to be terminated, within the meaning of
Title IV of ERISA, which could reasonably be expected to result in a Material Adverse
Effect.
(o) With respect to environmental matters:
75
(i) Except as set forth on Part I of
Schedule 4.01(o)
hereto, the operations
and properties of each Loan Party and each of its Subsidiaries comply in all material
respects with all applicable Environmental Laws and Environmental Permits, all past
non-compliance with such Environmental Laws and Environmental Permits has been resolved
without material ongoing obligations or costs, and no circumstances exist that would be
reasonably likely to (A) form the basis of an Environmental Action against any Loan Party or
any of its Subsidiaries or any of their properties that could have a Material Adverse Effect
or (B) cause any such property to be subject to any restrictions on ownership, occupancy,
use or transferability under any Environmental Law.
(ii) Except as set forth on Part II of
Schedule 4.01(o)
hereto, none of the
properties currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or is adjacent to any such property, there are no and never
have been any underground or aboveground storage tanks or any surface impoundments, septic
tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated,
stored or disposed of on any property currently owned or operated by any Loan Party or any
of its Subsidiaries or on any property formerly owned or operated by any Loan Party or any
of its Subsidiaries; there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or
any of its Subsidiaries, and Hazardous Materials have not been released, discharged or
disposed of on any property currently or formerly owned or operated by any Loan Party or any
of its Subsidiaries.
(iii) Except as set forth on Part III of
Schedule 4.01(o)
hereto, neither any
Loan Party nor any of its Subsidiaries is undertaking (or has had undertaken on its behalf),
and has not completed, either individually or together with other potentially responsible
parties, any investigation or assessment or remedial or response action relating to any
actual or threatened release, discharge or disposal of Hazardous Materials at any site,
location or operation, either voluntarily or pursuant to the order of any governmental or
regulatory authority or the requirements of any Environmental Law; and, all Hazardous
Materials generated, used, treated, handled or stored at, or transported to or from, any
property currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of in a manner not reasonably expected to result in material
liability to any Loan Party or any of its Subsidiaries.
(p) With respect to tax matters:
(i) Each Loan Party and each of its Subsidiaries and Affiliates with which the Borrower
files a consolidated tax return (its “
Tax Affiliates
”) has filed, has caused to be filed or
has been included in all tax returns (Federal, state, local and foreign) required to be
filed and has paid all taxes shown thereon to be due, together with applicable interest and
penalties.
(ii) Set forth on
Schedule 4.01(p)
hereto is a complete and accurate list, as
of the date hereof, of each taxable year of each Loan Party and each of its Subsidiaries and
Tax Affiliates for which Federal income tax returns have been filed and for which the
76
expiration of the applicable statute of limitations for assessment or collection has not
occurred by reason of extension or otherwise (an “
Open Year
”).
(iii) The aggregate unpaid amount, as of the date hereof, of adjustments to the Federal
income tax liability of each Loan Party and each of its Subsidiaries and Tax Affiliates
proposed by the Internal Revenue Service with respect to Open Years does not exceed $0. No
issues have been raised by the Internal Revenue Service in respect of Open Years that, in
the aggregate, would be reasonably likely to have a Material Adverse Effect.
(iv) The aggregate unpaid amount, as of the date hereof, of adjustments to the state,
local and foreign tax liability of each Loan Party and its Subsidiaries and Tax Affiliates
proposed by all state, local and foreign taxing authorities (other than amounts arising from
adjustments to Federal income tax returns) does not exceed $0. No issues have been raised
by such taxing authorities that, in the aggregate, would be reasonably likely to have a
Material Adverse Effect.
(v) Both the MLP and the Borrower will be treated as partnerships for Federal income
tax purposes.
(q) Neither the business nor the properties of each Loan Party and each of its Subsidiaries
are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or
not covered by insurance) that would be reasonably likely to have a Material Adverse Effect.
(r) Set forth on
Schedule 5.02(c)
hereto is a complete and accurate list of all
Existing Debt, showing as of the date hereof the obligor and the principal amount outstanding
thereunder.
(s) Each Loan Party and each of its Subsidiaries own (with good and defensible title in the
case of real property, subject only to the matters permitted by the following sentence), or have
valid leasehold interests in, all of the properties and assets (whether real, personal, or mixed
and whether tangible or intangible) material to its business. All such properties and assets are
free and clear of all Liens except Permitted Liens. The real and personal properties of each Loan
Party and each of its Subsidiaries are generally in good operating order, condition and repair,
ordinary wear and tear excepted.
Schedule 4.01(s)
sets forth all of the real property
owned or leased by the Loan Parties as of the date hereof.
(t) Set forth on
Schedule 4.01(t)
hereto is a complete and accurate list of all
Investments consisting of Debt or equity securities held by each Loan Party and each of its
Subsidiaries as of the date hereof, showing as of the date hereof the amount, obligor or issuer and
maturity, if any, thereof.
(u) (i) Each Loan Party and each of its Subsidiaries own or possess all licenses, permits,
franchises, authorizations, patents, copyrights, service marks, trademarks and trade names, or
rights thereto, for which the failure so to do, individually or in the aggregate, would reasonably
be likely to have a Material Adverse Effect, without known conflict with the rights of others, (ii)
no product or practice of the Borrower or any of its Subsidiaries infringes in any
77
material respect on any license, permit, franchise, authorization, patent, copyright, service mark, trademark, trade
name or other right owned by any other Person, and (iii) to the best knowledge of any of the Loan
Parties, there is no material violation by any Person of any right of the Borrower or any of its
Subsidiaries with respect to any patent, copyright, service mark, trademark, trade name or other
right owned or used by the Borrower or any of its Subsidiaries.
(v) Neither the Loan Parties or any of their Subsidiaries, nor any director, officer, agent,
employee or Affiliate of the Loan Parties or any of their Subsidiaries, are currently subject to
any material United States sanctions administered by OFAC, and the Borrower will not directly or
indirectly use the proceeds from the Loans or lend, contribute or otherwise make available such
proceeds to any Subsidiary, Affiliate, joint venture partner or other Person for the purpose of
financing the activities of any Person currently subject to any United States sanctions
administered by OFAC.
(w) The operations of the Loan Parties and their Subsidiaries are and have been conducted at
all times in material compliance with applicable financial recordkeeping and reporting requirements
of the money laundering laws, and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving any of the Loan Parties or any of their Subsidiaries with respect to the money laundering laws is pending
or, to the best knowledge of any of the Loan Parties, threatened.
(x) The Loan Parties and their Subsidiaries maintain adequate reserves for future costs
associated with any lung disease claim alleging pneumoconiosis or silicosis or arising out of
exposure or alleged exposure to coal dust or the coal mining environment, and such reserves are not
less than those required by GAAP.
(y) Neither the Loan Parties nor any of their Subsidiaries intends to treat the Advances as
being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4). In
the event a Loan Party or any of its Subsidiaries determines to take any action inconsistent with
such intention, it will promptly notify the Administrative Agent thereof. Furthermore, the Loan
Parties and their Subsidiaries acknowledge that one or more of the Lenders may treat its Advances
as part of a transaction that is subject to Treasury Regulation Section 1.6011-4 or Section
301.6112-1, and the Administrative Agent and such Lender or Lenders, as applicable, may file such
IRS forms or maintain such lists and other records as they may determine are required by such
Treasury Regulations.
(z) Neither any Loan Party nor any of its Subsidiaries is an “enemy” or an “ally of the enemy”
within the meaning of Section 2 of the Trading with the Enemy Act of the United States of America
(50 U.S.C. App. §§ 1
et seq
.) (the “
Trading with the Enemy Act
”), as amended. Neither any Loan
Party nor any of its Subsidiaries is in violation of (a) the Trading with the Enemy Act, as
amended, (b) any of the foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating
thereto or (c) the Patriot Act. None of the Loan Parties (i) is a blocked person described in
Section 1 of the Anti-Terrorism Order or (ii) to the best of its knowledge, engages in any dealings
or transactions, or is otherwise associated, with any such blocked person.
78
ARTICLE V
COVENANTS
Section 5.01
Affirmative Covenants
. So long as any Borrowing or any other monetary
obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit
shall be outstanding or any Lender Party shall have any Commitment hereunder, the Loan Parties
shall, and shall cause their Subsidiaries to:
(a)
Compliance with Laws, Etc
. Comply with all applicable laws, rules, regulations
and orders, such compliance to include, without limitation, compliance with ERISA, except to the
extent failure so to comply, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(b)
Payment of Taxes, Etc
. Pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies imposed upon it or upon
its property and (ii) all lawful claims that, if unpaid, might by law become a Lien upon its
property, except to the extent failure to so pay or discharge, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect; provided, however, that none of
the Loan Parties nor any of their Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper proceedings and as
to which appropriate reserves are being maintained in accordance with GAAP, unless and until any
Lien resulting therefrom attaches to its property and becomes enforceable by its other creditors.
(c)
Compliance with Environmental Laws
. Comply, and cause all lessees and other
Persons operating or occupying its properties to comply, with all applicable Environmental Laws and
Environmental Permits; obtain and renew all material Environmental Permits necessary for their
operations and properties; and conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action, necessary to identify, remove and clean
up all Hazardous Materials from any of its properties in accordance in all material respects with
the requirements of all Environmental Laws; provided, however, that neither the Borrower nor any of
its Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action
to the extent that its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to such circumstances in
accordance with GAAP.
(d)
Maintenance of Insurance
. Maintain (i) insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks as is usually carried
by companies engaged in similar businesses and owning similar properties in the same general areas
in which the Loan Parties and their Subsidiaries operate, except to the extent such risks are
self-insured in a manner and in an amount consistent with sound business practices and customary
industry standards and (ii) the Key-Man Life Insurance Policies.
(e)
Preservation of Partnership or Limited Liability Company Existence, Etc
. Preserve
and maintain its existence, legal structure, legal name, rights (charter and statutory), permits,
licenses, approvals, privileges, franchises and intellectual property; provided, however,
79
that the Loan Parties and their Subsidiaries may consummate any merger or consolidation permitted under
Section 5.02(e)
; and provided, further, that none of the Loan Parties nor any of their
Subsidiaries shall be required to preserve any right, permit, license, approval, privilege,
franchise or intellectual property if the board of directors (or persons performing similar
functions) of or on behalf of such Loan Party or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business of such Loan Party or
such Subsidiary, as the case may be, and that the loss thereof, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(f)
Visitation Rights
. At any reasonable time and from time to time upon reasonable
notice, permit the Administrative Agent, or any agents or representatives thereof, to examine and
make copies of and abstracts from the records and books of account of, and visit the properties of,
any of the Loan Parties and any of their Subsidiaries, and to discuss the affairs, finances and
accounts of any of the Loan Parties and any of their Subsidiaries with any of their officers
or directors and with their independent certified public accountants.
(g)
Keeping of Books
. Keep proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and business of the Loan
Parties and their Subsidiaries in accordance with GAAP.
(h)
Maintenance of Properties, Etc
. Maintain and preserve all of their properties in
good working order and condition, ordinary wear and tear excepted.
(i)
New Subsidiaries and Real Property; Additional Guarantees and Security Documents
.
Upon the formation or acquisition by the Loan Parties or any of their Subsidiaries of any new
direct or indirect, wholly owned Subsidiary of the MLP that is a Domestic Subsidiary, the Borrower
shall, at the Borrower’s expense, (i) within 10 days after such formation or acquisition, cause
each such Subsidiary to duly execute and deliver to the Administrative Agent a guaranty or guaranty
supplement and security documents necessary to grant a valid, perfected security interest in all
its property, in each case in form and substance reasonably satisfactory to the Administrative
Agent, and (ii) at any time and from time to time thereafter, promptly execute and deliver any and
all further instruments and documents and take all such other action as the Administrative Agent
may deem necessary or desirable in obtaining the full benefits of such guaranties and security
documents. For any acquisition of real property, (i) within 10 days following (A) a Permitted
Acquisition which includes an acquisition of real property or (B) the acquisition of any real
property by any of the Loan Parties in a single transaction or a series of related transactions
with a purchase price in excess of $15,000,000, and (ii) in the case of all acquisitions of real
property other than acquisitions of real property described in the immediately preceding clause
(i), within 45 days following the end of the fiscal quarter of the Fiscal Year in which such
acquisitions occur, the Borrower shall execute in favor of and deliver to, or shall cause to be
executed in favor of and delivered to, the Administrative Agent such mortgages as may be reasonably
requested by the Administrative Agent, together with the delivery of environmental audits,
insurance policies, including flood insurance (to the extent applicable) and title opinions, title
reports or title diligence covering such real property, together with such legal opinions and such
other documentation as may be reasonably requested by the Administrative Agent.
80
(j)
Further Assurances
. (i) Promptly upon request by the Administrative Agent,
correct any material defect or error that may be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof, and (ii) promptly upon request by the
Administrative Agent, take such action as the Administrative Agent may reasonably require from time
to time in order to carry out more effectively the purposes of the Loan Documents.
(k)
Preparation of Environmental Reports
. At the reasonable request of the
Administrative Agent from time to time, and otherwise upon the occurrence and during the
continuance of an Event of Default, provide to the Administrative Agent, within 60 days after such
request and at the expense of the Borrower, an environmental site assessment report for any of the
Loan Parties or their Subsidiaries’ properties described in such request, prepared by an
environmental consulting firm reasonably acceptable to the Administrative Agent, indicating the
presence or absence of Hazardous Materials and the estimated cost of any compliance, removal
or remedial action in connection with any Hazardous Materials on such properties; without
limiting the generality of the foregoing, if the Administrative Agent reasonably determines at any
time that any such report will not be provided within the time referred to above, the
Administrative Agent may, after written notice to the Borrower, retain an environmental consulting
firm to prepare such report at the expense of the Borrower, unless the Borrower shall have given
adequate assurances reasonably acceptable to the Administrative Agent within three Business Days of
such notice that such a report will be delivered within such 60-day period, and the Borrower hereby
grants, and agrees to cause any Loan Party and any of their Subsidiaries that owns any property
described in such request to grant, at the time of such request to the Administrative Agent, such
firm and any agents or representatives thereof an irrevocable non-exclusive license, subject to the
rights of tenants, to enter onto their respective properties to undertake such an assessment.
(l)
Compliance with Terms of Leaseholds
. Make all payments and otherwise perform all
obligations in respect of all leases of real property to which the Loan Parties or any of their
Subsidiaries is a party, keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be forfeited or canceled and notify
the Administrative Agent of any default by any party with respect to such leases and cooperate with
the Administrative Agent in all respects to cure any such default, except, in any case, where the
failure to do so, either individually or in the aggregate, could not be reasonably expected to have
a Material Adverse Effect.
(m)
Maintenance of Coal Reserve Base
. Maintain an aggregate tonnage of coal reserves
controlled by the MLP and its Subsidiaries (the “
Coal Reserve Base
”) that, as of the end of each
Fiscal Year, is equal to or greater than seven (7) times the aggregate tons of coal produced by the
MLP and its Subsidiaries in such Fiscal Year (the “
Annual Production Amount
”); provided that the
Consolidated Venture Percentage Share (and only the Consolidated Venture Percentage Share) of the
tonnage of such coal reserves owned and leased by a Consolidated Venture shall be included in the
Coal Reserve Base and the Consolidated Venture Percentage Share (and only the Consolidated Venture
Percentage Share) of the aggregate tons of coal produced by a Consolidated Venture in the Fiscal
Year shall be included in the Annual Production Amount; and provided, further, that any such coal
reserves leased or subleased to third parties by the MLP or any of its Subsidiaries shall be
excluded from the Coal Reserve Base
81
and coal produced from such leased or subleased coal reserves shall be excluded from the Annual Production Amount.
(n)
Interest Rate Protection
. Within 60 days of the Effective Date, provide the
Administrative Agent evidence satisfactory to it that the Borrower has entered into one or more
Swap Agreements for interest rate management purposes acceptable to the Administrative Agent in its
sole discretion in an amount equal to at least 50% of the outstanding Term Loan Borrowings for a
duration of at least two years.
(o)
Compliance with Reclamation Laws
.
(i) conduct all reclamation activities at each parcel, lot or tract of real property
owned, leased or used by the Loan Parties and their Subsidiaries in accordance with all
applicable Reclamation Laws, including, without limitation, the obligation to have in effect any surety, reclamation or similar bonds securing the
obligations of the Loan Parties or any of their Subsidiaries with respect to reclamation
activities in the amount required by applicable Reclamation Laws, except to the extent that
the failure to conduct any such reclamation activities at such parcel, lot or tract in
accordance with all applicable Reclamation Laws could not be reasonably expected to have
either individually or in the aggregate a Material Adverse Effect; provided that, so long as
the Loan Parties and each of their Subsidiaries are taking the actions set forth in the plan
referred to in
Section 5.01(o)(iv)
hereof, no such Material Adverse Effect shall be
deemed to have occurred with respect such failure.
(ii) Within five (5) Business Days of the receipt thereof, the Borrower shall give
notice to the Administrative Agent of the receipt by any of Loan Parties or any of its
Subsidiaries of any show cause order or chief’s order (or similar notice from a Governmental
Entity) (each, a “
Reclamation Order
”) under any applicable Reclamation Laws with respect to
any failure to perform reclamation contemporaneous with mining or any failure to provide or
maintain required reclamation bond, performance security or other similar financial
assurance, or any failure to obtain or denial of any requested release of any reclamation
bond, performance security or other similar financial assurance, at any parcel, lot or tract
of real property owned, leased or used by the Loan Parties or any of their Subsidiaries.
(iii) Upon receipt of any Reclamation Order, the Administrative Agent, its officers,
employees and agents shall have the right to, and the Loan Parties and their Subsidiaries
shall permit any such Person to, subject to applicable safety rules and regulations, (A)
visit and inspect each parcel, lot or tract of real property owned, leased or used by the
Loan Parties and their Subsidiaries to which such Reclamation Order applies, and (B) prepare
or caused to be prepared an environmental report, in form, substance and detail satisfactory
to the Administrative Agent in its sole discretion, with respect to each such parcel, lot or
tract, which report shall set forth, inter alia, the costs and expenses of conducting any
reclamation activities on such parcel, lot or tract in accordance with applicable
Reclamation Laws, together with the face amount of the surety, reclamation or similar bonds
securing the obligations of the Loan Parties and their Subsidiaries with respect to each
such parcel, lot or tract.
82
Upon receipt by the Administrative Agent of such environmental report, the Administrative Agent shall provide a copy to the Borrower.
(iv) In the event that the environmental report referred to in clause
(iii)
above indicates that the costs and expenses of conducting any reclamation activities on any
parcel, lot or tract of real property owned, leased or used by the Loan Parties and their
Subsidiaries in accordance with applicable Reclamation Laws exceeds the face amount of the
surety, reclamation or similar bonds securing the obligations of the Loan Parties and their
Subsidiaries with respect to each such parcel, lot or tract, then (A) within thirty (30)
days after the Borrower’s receipt thereof, the Borrower shall provide to the Administrative
Agent a plan, in form, substance and detail satisfactory to the Administrative Agent in its
reasonable discretion, setting forth the actions that the Loan Parties and their
Subsidiaries shall take to address the issues set forth in such environmental report and
which gave rise to the applicable Reclamation Order, and (B) the Loan Parties and their Subsidiaries shall take all such actions as set
forth in such plan.
(p) Attached hereto as
Schedule 5.01(p)
is a list of certain items that the parties
hereto have agreed will be completed after the Effective Date (the “
Post Closing Covenants
”). In
the event that any of the Post Closing Covenants are not satisfied by the date set forth for
completion of such Post Closing Covenants indicated on
Schedule 5.01(p)
it shall be an
Event of Default hereunder, and the Administrative Agent and the Lenders shall be entitled to
exercise their remedies hereunder and under the other Loan Documents.
Section 5.02
Negative Covenants
. So long as any Borrowing or any other monetary
obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit
shall be outstanding or any Lender Party shall have any Commitment hereunder, the Loan Parties
shall not, and shall cause each of their Subsidiaries not to, at any time:
(a)
Liens, Etc.
Create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any Lien on or with respect to any of its
properties of any character (including, without limitation, accounts), whether now owned or
hereafter acquired, or sign or file or suffer to exist, or permit any of their Subsidiaries to sign
or file or suffer to exist, under the Uniform Commercial Code of any jurisdiction, a financing
statement that names any of the Loan Parties or any of their Subsidiaries as debtor, or sign or
suffer to exist any security agreement authorizing any secured party thereunder to file such
financing statement, or assign, or permit any of their Subsidiaries to assign, any accounts or
other right to receive income, except:
(i) Permitted Liens;
(ii) the replacement, extension or renewal of any Lien permitted by clause (i) above
upon or in the same property theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any direct or contingent obligor) of
the Debt secured thereby;
83
(iii) Liens on personal property leased under leases (including synthetic leases)
entered into by the Borrower which are accounted for as operating leases in accordance with
GAAP to the extent not prohibited under
Section 5.02(i)
; and
(iv) Liens on documents of title and the property covered thereby securing obligations
in respect of letters of credit to the extent not prohibited under
Section 5.02(b)
.
(b)
Negative Pledge
. Undertake, covenant or agree with any third party that it will
not create, assume, incur or permit to exist any Lien on any of their assets or properties, whether
now owned or hereafter acquired.
(c)
Debt
. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries
to create, incur, assume or suffer to exist, any Debt, except:
(i) Debt under the Loan Documents;
(ii) Debt in existence on the Effective Date and described on
Schedule 5.02(c)
hereto;
(iii) Debt of the Loan Parties and Consolidated Ventures secured by Liens permitted by
clause (g) of the definition of Permitted Liens; provided that such Debt does not exceed in
the aggregate outstanding at any one time $15,000,000;
(iv) Debt in respect of Swap Agreements incurred in the ordinary course of business and
consistent with prudent business practice and not for speculative purposes;
(v) Debt owing by a Loan Party to another Loan Party; and
(vi) any Debt extending the maturity of, or refunding or refinancing, in whole or in
part, any other Debt permitted under this
Section 5.02(c)
; provided that the
principal amount of such Debt shall not be increased above the principal amount thereof
outstanding immediately prior to such extension, refunding or refinancing, the direct and
contingent obligors therefor and the subordination provisions thereunder shall not be
changed as a result of or in connection with such extension, refunding or refinancing;
provided, additionally, that the terms relating to amortization, maturity and collateral (if
any), and other material terms taken as a whole, of any such extending, refunding or
refinancing Debt, and of any agreement entered into and of any instrument issued in
connection therewith, are consistent with prudent business practice and incurred in the
ordinary course of business and the interest rate applicable to any such extension,
refunding or refinancing does not exceed the then applicable market rate; and provided,
further, that the repayment in whole or in part of the Advances pursuant to
Section
2.04
or
Section 2.06
with the proceeds of Debt incurred pursuant to
Section
5.02(c)(i)
shall not constitute an extension, refunding or refinancing under this clause
(vi).
(d)
Change in Nature of Business
. Engage, or permit any of its Subsidiaries to
engage, in (i) any business or business activity that would impair the MLP’s status as a limited
partnership for federal income tax purposes or (ii) in any line of business substantially different
84
than that of the Coal Business (provided that the MLP and its Subsidiaries may also engage in any
other businesses currently conducted by them as of the date hereof).
(e)
Mergers, Etc
. Merge into or consolidate with any Person or permit any Person to
merge into it or convey, transfer or lease substantially all of its assets in a single transaction
or series of transactions to any Person, or permit any of its Subsidiaries to do so, except that:
(i) any Subsidiary of the MLP may merge into or consolidate with any other Subsidiary
of the MLP (other than the Borrower); provided that, in the case of any such merger or
consolidation, the Person formed by or resulting from such merger or consolidation shall be
a wholly owned Subsidiary of the MLP; and provided, further, that the Person formed by such
merger or consolidation shall be a Subsidiary Guarantor;
(ii) any Subsidiary of the MLP may consolidate with or merge into the Borrower provided
that the Borrower is the surviving entity, and any Subsidiary of the MLP other than the Borrower may consolidate with or merge into the MLP provided that
the MLP is the surviving entity; and
(iii) any Subsidiary of the MLP may (A) merge into or consolidate with any other
Person, (B) convey, transfer or lease substantially all of its assets in compliance with
Section 5.02(f)
(other than clause (iv) thereof) in a single transaction or series
of related transactions to any other Person or (C) permit any other Person to merge into or
consolidate with it; provided that, in each case with respect to any merger or consolidation
or conveyance, transfer or lease of substantially all of its assets, (X) the Person formed
by such consolidation or into which the Subsidiary shall be merged or to which assets shall
be conveyed, transferred or leased shall, at the effective time of such merger or
consolidation or transfer or lease be a wholly owned Subsidiary of the MLP, shall be
Solvent, and shall have assumed all obligations of such Subsidiary under any Subsidiary
Guaranty to which such Subsidiary is a party in a writing reasonably satisfactory in form
and substance to the Administrative Agent, (Y) in any merger or consolidation involving the
Borrower, the Borrower shall be the surviving entity, and (Z) the Borrower shall have caused
to be delivered to the Administrative Agent an opinion of independent counsel reasonably
satisfactory to the Administrative Agent to the effect that all agreements and instruments
effecting such assumption are enforceable in accordance with the terms thereof;
provided, however, that, in each case, immediately after giving effect thereto, (i) no event shall
occur and be continuing that constitutes a Default and (ii) the Borrower shall be in pro forma
compliance with the covenants contained in
Section 5.04
, as evidenced by a certificate of
the chief financial officer (or Person performing similar functions) of the Borrower delivered to
the Administrative Agent demonstrating such compliance.
(f)
Sales, Etc. of Assets
. Sell, lease, transfer or otherwise dispose of, or permit
any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any
option or other right to purchase, lease or otherwise acquire any assets (each, an “
Asset Sale
”),
except:
(i) sales of Inventory in the ordinary course of business;
85
(ii) Asset Sales of assets that are obsolete or no longer used or useful for fair value
the ordinary course of business;
(iii) Asset Sales of assets by any Loan Party to another Loan Party with respect to
which the MLP shall have at least the same degree of ownership and control as it had with
respect to such Loan Party responsible for the asset sale, transfer or disposition;
(iv) in a transaction authorized by
Section 5.02(e)
; and
(v) Asset Sales of other assets over the term of the Facilities with a fair value in
the aggregate in an amount not to exceed 2.5% of Consolidated Net Tangible Assets as
determined at the time of any of such sales; provided, however, that the purchase price paid
to a Loan Party or any of its Subsidiaries for such asset shall be no less than the fair
market value of such asset at the time of such sale and such sale shall be in the best interest of a Loan Party or such Subsidiary, as determined in good faith by the board of directors (or other person performing such functions) of a Loan Party or such
Subsidiary, as the case may be, and (ii) immediately after giving effect to such sales of
assets, no Default shall exist.
(g)
Investments in Other Persons
. Make or hold, or permit any of its Subsidiaries to
make or hold, any Investment in any Person, except:
(i) Investments consisting of Permitted Acquisitions, provided that, immediately after
giving effect to any such Permitted Acquisition, the MLP and its Subsidiaries shall be in
pro forma compliance with the covenants contained in
Section 5.04
, calculated based
on the financial statements most recently delivered to the Lender Parties pursuant to
Section 5.03
and as though such acquisition had occurred at the beginning of the
four quarter period covered thereby, as evidenced by a certificate of the chief financial
officer (or Person performing similar functions) of the Borrower delivered to the Lender
Parties demonstrating such compliance;
(ii) Investments in any additional coal reserves, provided that, immediately after
giving effect thereto, the Borrower shall have complied with
Section 5.01(i)
if
applicable and the MLP and its Subsidiaries shall be in compliance with the covenants
contained in
Section 5.04
as evidenced by the monthly report covering such
Investments subsequently delivered pursuant to
Section 5.03(l)
and the Compliance
Certificates subsequently delivered pursuant to
Section 5.03(b)
and
Section
5.03(c)
;
(iii) equity Investments by the Borrower and its Subsidiaries in wholly owned Domestic
Subsidiaries that are not part of a Permitted Acquisition;
(iv) Investments by the Borrower and its Subsidiaries in Cash Equivalents;
(v) Investments existing on the date hereof and described on
Schedule 4.01(t)
hereto;
(vi) Investments by the Borrower in Swap Agreements permitted under
Section
5.02(c)(iv)
; and
86
(vii) Investments consisting of Debt among the Loan Parties permitted under
Section
5.02(c)
.
(h)
Restricted Payments
. Declare or pay any dividends or distributions, purchase,
redeem, retire, defease or otherwise acquire for value any of its Capital Stock now or hereafter
outstanding, return any capital to its stockholders, partners or members (or the equivalent Persons
thereof) as such, make any distribution of assets, Capital Stock, obligations or securities to its
stockholders, partners or members (or the equivalent Persons thereof) as such, or permit any of its
Subsidiaries to do any of the foregoing, or make any payment of principal of, or interest on, or
payment into a sinking fund for the retirement of, or any defeasance of subordinated debt, or
permit any of its Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value
any Capital Stock in the MLP or to issue or sell any Capital Stock therein (each of the foregoing,
a “
Restricted Payment
”), except that so long as no Default or Event of Default shall have occurred and be continuing at the time of such action or would
result therefrom:
(i) the MLP may declare, make or incur a liability to make quarterly cash distributions
to its partners, provided that the aggregate amount of such quarterly distributions shall
not exceed Available Cash (as defined in the MLP Agreement as in effect on the date hereof)
with respect to the immediately preceding fiscal quarter of the MLP and such quarterly
distributions are otherwise made in accordance with terms of MLP Agreement;
(ii) the MLP may make payments to the General Partner to reimburse the General Partner
under the Administrative Services Agreement;
(iii) (A) any Subsidiary Guarantor may declare, make or incur a liability to make any
Restricted Payment to the MLP, to the Borrower or to another Subsidiary Guarantor, (B) any
Subsidiary of the MLP that is not a Subsidiary Guarantor may declare, make or incur a
liability to make any Restricted Payment to the MLP, to the Borrower or to a Subsidiary
Guarantor and (C) any Consolidated Ventures may declare, make or incur a liability to make
any Restricted Payment on the equity interests of the equityholders on a pro rata basis to
the equityholders thereof;
(iv) the MLP may make non-cash distributions of receivables prior to the IPO as
described in the Registration Statement;
(v) the MLP may make cash distributions in connection with the IPO in an amount not to
exceed $68,100,000, as such amount may be adjusted to reflect the actual amount of proceeds
that will be distributed in accordance with the Registration Statement;
(vi) the MLP may make payments to its partners for the redemption of a portion of their
MLP Common Units to the extent of the Net Cash Proceeds from the IPO Shoe;
87
(vii) each of the MLP and each of its Subsidiaries may make distributions of its
Capital Stock as a split or other distribution where the distributions are made on a pro
rata basis to all of its equityholders; and
(viii) to the extent not included in clause (ii) above, the MLP may make purchases of
MLP Common Units which it intends to use for or to offset the previous dilutive effect of
the issuance of MLP Common Units to participants in its long-term incentive plan made at any
time after the Effective Date, provided that on a rolling twelve month basis (A) the
aggregate number of such MLP Common Units so purchased does not exceed the aggregate number
of MLP Common Units that have vested with such participants and been issued, and (B) the
aggregate purchase price of such MLP Common Units does not exceed $2,000,000. To the extent
the MLP does not expend $2,000,000 in any given rolling twelve month period, the shortfall
may be rolled forward and used in subsequent rolling twelve month periods; provided that,
after giving effect to such roll forward, the aggregate purchase price for MLP Common Units purchased during any rolling
twelve month period pursuant to this clause (viii) shall not exceed $3,000,000.
(i)
Lease Obligations
. Create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any obligations as lessee (excluding for
this purpose obligations as lessee under Capital Leases) for the rental or hire of real or personal
property in connection with any sale and leaseback transaction (except to the extent and not
exceeding the amounts permitted by
Section 5.02(f)(iii)
.
(j)
Amendments of Constitutive Documents
. Amend, or permit any of its Subsidiaries to
amend, (i) the Constitutive Documents of the Borrower or any of its Subsidiaries or (ii) the
Constitutive Documents of the MLP or any of its Subsidiaries that are not also Subsidiaries of the
Borrower, in either case in any manner that would adversely affect or impact the rights of the
Administrative Agent or the Lender Parties or could be reasonably expected to have a Material
Adverse Effect.
(k)
Accounting Changes
. Make or permit, or permit any of its Subsidiaries to make or
permit, any change in (i) accounting policies or reporting practices, except as required by GAAP or
(ii) its Fiscal Year.
(l)
Prepayments, Etc. of Debt
. Prepay, redeem, purchase, defease or otherwise satisfy
prior to the scheduled maturity thereof in any manner any Debt prior to the Term Loan Maturity
Date, excluding prepayments of Debt (i) under the Existing Facility Agreement, (ii) pursuant to the
Loan Documents or (iii) which matures prior to the maturity date of the Revolving Credit Facility,
provided that the face amount of such Debt under clause (iii) shall not exceed $1,000,000 in the
aggregate.
(m)
Partnerships, Etc
. Become a general partner in any general or limited partnership
or joint venture, or permit any of its Subsidiaries to do so, except that the Borrower and/or any
of its Subsidiaries may be a general partner in any partnership or joint venture provided such
partnership or such joint venture incurs no Debt or other liability for which the Borrower or such
Subsidiary is liable as guarantor or a provider of any other credit support, or by virtue of its
status as such general partner or joint venturer.
88
(n)
Formation of Subsidiaries; Consolidated Ventures
. Organize or invest in, or
permit any Subsidiary to organize or invest in, any new Subsidiary except as permitted under
Section 5.02(g)(i)
and
Section 5.02(g)(iii)
, or pledge any equity interests in any
Consolidated Ventures.
(o)
Payment Restrictions Affecting Subsidiaries
. Enter into or suffer to exist, or
permit any of its Subsidiaries to enter into or suffer to exist, directly or indirectly, any
agreement or arrangement limiting the ability of any of its Subsidiaries to declare or pay
dividends or other distributions in respect of its Capital Stock or repay or prepay any Debt owed
to, make loans or advances to, or otherwise transfer assets to or invest in, the Borrower or any
Subsidiary of the Borrower (whether through a covenant restricting dividends, loans, asset
transfers or investments, a financial covenant or otherwise), except the Loan Documents and except
with respect to Consolidated Ventures.
(p)
Transactions with Affiliates
. Enter into, or permit any of its Subsidiaries to
enter into, directly or indirectly, any transaction or group of related transactions (including
without limitation the purchase, lease, sale or exchange of properties of any kind or the rendering
of any service) with any Affiliate, except for the IPO Transactions and otherwise except in the
ordinary course or pursuant to the reasonable requirements of the Borrower’s or such Subsidiary’s
business, in each case upon fair and reasonable terms no less favorable (taken as a whole, as
determined in good faith by the board of directors of the General Partner or its Conflicts
Committee) to the Borrower or such Subsidiary than would be obtainable in a comparable arm’s-length
transaction with a Person not an Affiliate. For the avoidance of doubt, this provision shall not
restrict the continued operation of the General Partner and the Loan Parties under and pursuant to
the Administrative Services Agreement or the continued operation of the Borrower and Tunnell Hill
Reclamation LLC under and pursuant to the existing environmental services agreement and mining
agreement, as both are in effect on the date hereof.
(q)
Use of Proceeds
. Permit the proceeds of the Borrowings to be used for any purpose
other than those permitted by
Section 2.14
. Neither the Borrower nor any Person acting on
behalf of the Borrower has taken or will take any action which might cause any of the Loan
Documents to violate Regulations T, U or X or any other regulation of the Board or to violate
Section 7 of the Securities Exchange Act of 1934 or any rule or regulation thereunder, in each case
as now in effect or as the same may hereinafter be in effect. If requested by the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form U-1 or such other form referred to
in Regulation U, Regulation T or Regulation X of the Board, as the case may be.
Section 5.03
Reporting Requirements
. So long as any Advance or any other monetary
obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit
shall be outstanding or any Lender Party shall have any Commitment hereunder, the Borrower shall
furnish to the Administrative Agent:
(a)
Default Notice
. As soon as possible and in any event within five Business Days
after any Responsible Officer has actual knowledge of the occurrence of each Default or any event,
development or occurrence reasonably likely to have a Material Adverse Effect continuing
89
on the date of such statement, a statement of the chief financial officer (or Person performing similar
functions) of the MLP (or the General Partner) setting forth details of such Default and the action
that the MLP has taken and proposes to take with respect thereto.
(b)
Annual Financial Statements
. As soon as available and in any event within 90 days
after the end of each Fiscal Year (provided that, if different, such time period shall
automatically be modified to be the same as the time period applicable for Commission annual
reporting), a copy of the annual audit report for such year for the MLP and its Subsidiaries,
including therein a Consolidated balance sheet of the MLP and its Subsidiaries as of the end of
such Fiscal Year and a Consolidated statement of operations and a Consolidated statement of cash
flows of the MLP and its Subsidiaries for such Fiscal Year, in each case accompanied by an opinion
reasonably acceptable to the Required Lenders of Grant Thornton or other independent
public accountants of recognized standing acceptable to the Required Lenders, together with
(i) a clean, unqualified audit opinion or alternatively, if, in the opinion of such accounting
firm, a Default has occurred and is continuing, a statement as to the nature thereof, (ii) a
Compliance Certificate and a schedule in form reasonably satisfactory to the Administrative Agent
of the computations, if any, used by such accountants in determining, as of the end of such Fiscal
Year, compliance with the covenants contained in
Section 5.04
, provided that, in the event
of any change in GAAP used in the preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with
Section 5.04
, a statement of
reconciliation conforming such financial statements to GAAP, and (iii) a certificate of the chief
financial officer (or Person performing similar functions) of the MLP (or General Partner) stating
that no Default has occurred and is continuing or, if a default has occurred and is continuing, a
statement as to the nature thereof and the action that the MLP has taken and proposes to take with
respect thereto.
(c)
Quarterly Financial Statements
. As soon as available and in any event within 45
days after the end of each of the first three quarters of each Fiscal Year (provided that, if
different, such time period shall automatically be modified to be the same as the time period
applicable for Commission quarterly reporting), either (i) a Consolidated balance sheet of the MLP
and its Subsidiaries as of the end of such quarter and a Consolidated statement of operations and a
Consolidated statement of cash flows of the MLP and its Subsidiaries for the period commencing at
the end of the previous fiscal quarter and ending with the end of such fiscal quarter and a
Consolidated statement of operations and a Consolidated statement of cash flows of the MLP and its
Subsidiaries for the period commencing at the end of the previous Fiscal Year and ending with the
end of such quarter, setting forth in each case in comparative form the corresponding figures for
the corresponding date or period of the preceding Fiscal Year, or alternatively (ii) such financial
statements as are filed with the Commission for each of the first three quarters of such Fiscal
Year, all in reasonable detail and duly certified (subject to the absence of footnotes and to
normal year-end audit adjustments) by the chief financial officer (or Person performing similar
functions) of the MLP (or the General Partner) as having been prepared in accordance with GAAP,
together with (i) a Compliance Certificate and (ii) a schedule in a form reasonably satisfactory to
the Administrative Agent of the computations used by the Borrower in determining compliance with
the covenants contained in
Section 5.04
, provided that, in the event of any change in GAAP
used in the preparation of such financial statements, the Borrower shall also provide, if necessary
for the determination of compliance with
Section 5.04
, a statement of reconciliation
conforming such financial statements to GAAP.
90
(d)
Annual Financial Projections
. As soon as available and in any event no later than
60 days after the end of each Fiscal Year, Financial Projections.
(e)
Litigation
. Promptly after any Responsible Officer has actual knowledge of the
commencement thereof, notice of all actions, suits, investigations, litigation and proceedings
before any Governmental Authority affecting the General Partner, any Loan Party or any of its
Subsidiaries, including any Environmental Action, that (i) would be reasonably expected to have a
Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any
Transaction Document or the consummation of the Transaction, and promptly after the occurrence
thereof, notice of any material adverse change in the status or the financial effect on
the General Partner, or any Loan Party or any of its Subsidiaries, of the Disclosed Litigation
from that described on
Schedule 4.01(f)
hereto.
(f)
Securities Reports
. Promptly after the sending or filing thereof, copies of all
proxy statements, financial statements and reports that the MLP sends to its stockholders, partners
or members, and copies of all regular, periodic and special reports, and all registration
statements, that the MLP files with the Commission or any governmental authority that may be
substituted therefor, or with any national securities exchange, provided that the reporting
requirement of this clause (f) shall be satisfied if the Borrower notifies the Administrative Agent
that such materials have become publicly available on a web site identified in such notice.
(g)
ERISA
.
(i)
ERISA Events and ERISA Reports
. (A) Promptly and in any event within 10
days after any Loan Party or any ERISA Affiliate of any Loan Party knows or has reason to
know that any ERISA Event has occurred, a statement of the chief financial officer (or
Person performing similar functions) of the MLP (or the General Partner) describing such
ERISA Event and the action, if any, that such Loan Party or such ERISA Affiliate has taken
and proposes to take with respect thereto, and (B) on the date any records, documents or
other information must be furnished to the PBGC with respect to any Plan pursuant to Section
4010 of ERISA, a copy of such records, documents and information.
(ii)
Plan Terminations
. Promptly and in any event within two Business Days
after receipt thereof by any Loan Party or any ERISA Affiliate of any Loan Party, copies of
each notice from the PBGC stating its intention to terminate any Plan or to have a trustee
appointed to administer any Plan.
(iii)
Plan Annual Reports
. Promptly and in any event within 30 days after the
filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) with respect to each Plan.
(iv)
Multiemployer Plan Notices
. Promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any ERISA Affiliate of any Loan
Party from the sponsor of a Multiemployer Plan, copies of each notice concerning (A) the
imposition of Withdrawal Liability by any such Multiemployer Plan, (B) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such
91
Multiemployer Plan or (C) the amount of liability incurred, or that may be incurred, by such Loan Party or any such
ERISA Affiliate in connection with any event described in clause (A) or (B).
(h)
Environmental Conditions
. Promptly after any Responsible Officer has actual
knowledge of the assertion or occurrence thereof, notice of any material Environmental Action
against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental
Law or Environmental Permit.
(i)
Notices of Certain Changes.
Promptly, but in any event within five (5) Business
Days after the execution thereof, copies of any amendment, modification or supplement to any
organizational document of a Loan Party or any of its Subsidiaries.
(j)
Coal and Mining Agreements
. Promptly after the occurrence thereof, notice of any
material change other than in the ordinary course of business to any material coal sales agreement
or material contract, material contract mining agreement or material coal purchase agreements to
which the Borrower or any of its Subsidiaries is a party.
(k)
Other Information
. Such other information respecting the business, condition
(financial or otherwise), operations, performance, properties or prospects of any Loan Party or any
of its Subsidiaries as the Administrative Agent, or any Lender Party through the Administrative
Agent, may from time to time reasonably request.
(l)
Monthly Acquisition Report
. Within thirty (30) days after the last day of the
month, a report listing all material acquisitions of fee and leasehold interests in Coal Business
real property acquired during such month by the MLP and its Subsidiaries, accompanied by a
certificate of the chief financial officer (or Person performing similar functions) certifying
compliance with
Section 5.02(g)(iii)
.
(m)
Mine Inspection Report
. Within forty-five (45) days after the each fiscal quarter
of each Fiscal Year, a mine inspection report, in form, substance and detail satisfactory to the
Administrative Agent and consistent with past credit facility reporting practices, from a mine
inspection firm satisfactory to the Administrative Agent, setting forth a statement of the costs
and expenses of conducting the reclamation activities, if any, at each parcel, lot or tract of real
property owned, leased or used by the Loan Parties and their Subsidiaries required by all
applicable Reclamation Laws, together with the face amount of the surety, reclamation or similar
bonds securing the obligations of the Loan Parties and their Subsidiaries with respect to each such
parcel, lot or tract.
Section 5.04
Financial Covenants
. So long as any Advance or any other obligation of
any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, the MLP shall:
(a)
Leverage Ratio
. Maintain, at all times, a Leverage Ratio of not more than
2.75:1.0.
(b)
Interest Coverage Ratio
. Maintain, at all times, an Interest Coverage Ratio of
not less than 4.0:1.0.
92
(c)
Maximum Capital Expenditures
. Not make, or permit any of its Subsidiaries to
make, any Capital Expenditures that would cause the aggregate of all Capital Expenditures made by
the MLP and its Subsidiaries in any period set forth below to exceed the amount set forth below for
such period (the “
Scheduled Amount
”):
|
|
|
|
|
|
|
Period of Fiscal
|
|
Capital Expenditure
|
|
|
Year Ending
|
|
Amount
|
|
|
December 31, 2010*
|
|
$
|
17,000,000
|
|
|
December 31, 2011
|
|
$
|
40,000,000
|
|
|
December 31, 2012
|
|
$
|
45,000,000
|
|
|
December 31, 2013
|
|
$
|
45,000,000
|
|
|
December 31, 2014
|
|
$
|
40,000,000
|
|
|
|
|
|
|
*
|
|
For the period of such Fiscal Year from the Effective Date on.
|
provided, however, that (i) the amount of Capital Expenditures that may be made in any Fiscal Year
shall be increased above the Scheduled Amount by the aggregate amount of Net Cash Proceeds received
in such Fiscal Year from the issuance of equity of the MLP (the “
Equity Proceeds
”) and, to the
extent the Equity Proceeds are not spent in such Fiscal Year (such unspent amount, the “
Unused
Equity Proceeds
”), the amount of Capital Expenditures that may be made in the immediately
succeeding Fiscal Year, and only for such immediately succeeding Fiscal Year, shall be increased
above the Scheduled Amount by the amount of such Unused Equity Proceeds and (ii) if, for any Fiscal
Year set forth above, the Scheduled Amount specified for such Fiscal Year exceeds the aggregate
amount of Capital Expenditures made by the MLP and its Subsidiaries during such Fiscal Year which
are applied to the Scheduled Amount (the amount of such excess being the “
Excess Amount
”), the
Borrower and its Subsidiaries shall be entitled to make additional Capital Expenditures in the
immediately succeeding Fiscal Year, and only for such immediately succeeding Fiscal Year, in an
amount equal to such Excess Amount, but not to exceed $10,000,000; provided that, solely for
purposes of calculating the Excess Amount with regard to the Fiscal Year Ending December 31, 2010,
the Scheduled Amount shall be deemed to be $15,000,000.
In this regard, for the Capital Expenditures made by the MLP and its Subsidiaries in any
Fiscal Year, they shall be applied to amounts available for Capital Expenditures in such Fiscal
Year in the following order: first to any Excess Amount, next to any Unused Equity Proceeds, then
to the Scheduled Amount and finally to any Equity Proceeds. Notwithstanding the foregoing, only
20% of the Scheduled Amount may be utilized for property owned or leased by Capital Expenditures
for Consolidated Ventures. For purposes of calculating Capital Expenditures under the foregoing,
(i) the Consolidated Venture Percentage Share of the Capital Expenditures of any Consolidated
Venture shall be included and (ii) the present value of all future minimum lease payments of
equipment leased pursuant to an operating lease during any Fiscal Year shall be deducted from the
maximum aggregate Capital Expenditures permitted for such Fiscal Year hereunder. For the avoidance
of doubt, (i) expenditures which are a part of the IPO Transactions in an amount equal to (A)
$32,100,000 for lease buyouts as such amount may be adjusted to reflect the actual such amount in
accordance with the Registration Statement and (B) $24,700,000 for equipment purchases, (ii)
Investments permitted under
Section 5.02(g)(i)
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and/or under
Section 5.02(g)(ii)
, (iii) applications of Net Cash Proceeds from Asset Sales which except such Net Cash Proceeds from
the mandatory prepayment requirement of
Section 2.06(c)(i)
, and (iv) applications of Net
Cash Proceeds from any Material Recovery Event which except such Net Cash Proceeds from the
mandatory prepayment requirement of
Section 2.06(c)(iv)
shall not be included in
calculating Capital Expenditures for purposes of this
Section 5.04(c)
.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01
Events of Default
. If any of the following events (“
Events of Default
”)
shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any Advance when the same shall become
due and payable or (ii) the Borrower shall fail to pay any interest on any Advance, or any Loan
Party shall fail to make any other payment under any Loan Document, in each case under this clause
(ii) within five Business Days after the same becomes due and payable;
(b) any representation or warranty made in writing by any Loan Party (or any of its officers
or persons performing similar functions) under or in connection with any Loan Document (including,
without limitation, in any certificate or financial information delivered pursuant thereto) shall
prove to have been incorrect in any material respect when made or any financial projections
prepared by or on behalf of any Loan Party and made available in writing to the Administrative
Agent or any Lender Party shall prove not to have been prepared in good faith based upon
assumptions that were reasonable at the time made and at the time made available to the
Administrative Agent;
(c) the Borrower shall fail to perform or observe any term, covenant or agreement contained in
Section 2.14
,
Section 2.15(a)(ii)
,
Section 5.01(d)
or
Section
5.01(e)
,
Section 5.02
,
Section 5.03(a)
or
Section 5.04
;
(d) any Loan Party shall fail to perform or observe any other term, covenant or agreement
contained in any Loan Document on its part to be performed or observed if such failure shall remain
unremedied for 30 days after the earlier of the date on which (i) a Responsible Officer becomes
aware of such failure or (ii) written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender Party;
(e) any Loan Party or any of its Subsidiaries shall fail to pay any principal of, premium or
interest on or any other amount payable in respect of any Debt of such Loan Party or such
Subsidiary (as the case may be) that is outstanding in a principal amount (or, in the case of any
Swap Agreement, the value of obligations under such Swap Agreement) of at least $500,000 either
individually or in the aggregate (but excluding Debt outstanding hereunder), when the same becomes
due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt,
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if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt to mature; or any such Debt
shall be declared to be due and payable or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof;
(f) any Loan Party or any of its Subsidiaries or the General Partner shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall
be instituted by or against any Loan Party or any of its Subsidiaries or the General Partner
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a receiver, trustee or other similar
official for it or for any substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it) that is being diligently contested by it in good
faith, either such proceeding shall remain undismissed or unstayed for a period of 60 days or any
of the actions sought in such proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or other similar official for,
it or any substantial part of its property) shall occur; or any Loan Party or any of its
Subsidiaries or the General Partner shall take any corporate, partnership or limited liability
company action to authorize any of the actions set forth above in this clause (f);
(g) any judgments or orders, either individually or in the aggregate, for the payment of money
in excess of $500,000 shall be rendered against any Loan Party or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 60 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
provided, however, that any such judgment or order shall not be an Event of Default under this
clause (g) if and for so long as (A) the amount of such judgment or order is covered by a valid and
binding policy of insurance between the defendant and the insurer covering payment thereof and (B)
such insurer, which shall be rated at least “A” by A.M. Best Company at the time such insurance
policy is issued to such Loan Party, has been notified of, and has not disputed the claim made for
payment of, the amount of such judgment or order;
(h) any non-monetary judgment or order shall be rendered against any Loan Party or any of its
Subsidiaries that would be reasonably expected to have a Material Adverse Effect, and there shall
be any period of 60 consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect;
(i) any provision of any Loan Document after delivery thereof pursuant to
Section 3.01
or
Section 5.01(i)
shall for any reason cease to be valid and binding on or enforceable
against any Loan Party a party thereto in any material respect, or any such Loan Party shall so
state in writing;
(j) a Change of Control shall occur;
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(k) any Loan Party or any ERISA Affiliate of such Loan Party shall incur, or shall be
reasonably likely to incur, liability in excess of $500,000 in the aggregate as a result of one or
more of the following: (i) the occurrence of any ERISA Event; (ii) the partial or complete
withdrawal of a Loan Party or any ERISA Affiliate of such Loan Party from a Multiemployer
Plan; or (iii) the reorganization or termination of a Multiemployer Plan; or
(l) an assertion shall be made by any Person in any court proceeding or by any governmental
authority or agency against any Loan Party or any of its Subsidiaries of any claims or liabilities,
whether accrued, absolute or contingent, based on or arising under any Environmental Law that is
reasonably likely to be determined adversely to such Loan Party or any of its Subsidiaries, and the
amount thereof (either individually or in the aggregate) would be reasonably expected to have a
Material Adverse Effect (insofar as such amount is payable by such Loan Party or any of its
Subsidiaries but after deducting any portion thereof that is reasonably expected to be paid by
other creditworthy Persons jointly and severally liable therefor);
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Commitments of each Lender
Party and the obligation of each Lender Party to make Advances (other than Letter of Credit
Advances by an Issuing Bank or a Lender pursuant to
Section 2.03(c)
and Swing Line Advances
by a Lender pursuant to
Section 2.02(b)
) and of the Issuing Bank to issue Letters of Credit
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, (A) by notice to the Borrower, declare the Advances,
all interest thereon and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the Borrower, and (B) by
notice to each party required under the terms of any agreement in support of which a Standby Letter
of Credit is issued, request that all Obligations under such agreement be declared to be due and
payable; provided, however, that, in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the Federal Bankruptcy Code, (I) the Commitments of each Lender
Party and the obligation of each Lender Party to make Advances (other than Letter of Credit
Advances by an Issuing Bank or Lender pursuant to
Section 2.03(c)
and Swing Line Advances
by a Lender pursuant to
Section 2.02(b)
) and of the Issuing Bank to issue Letters of Credit
shall automatically be terminated and (II) the Advances, all such interest and all such amounts
shall automatically become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrower.
Section 6.02
Actions in Respect of the Letters of Credit Upon Default
. If any Event
of Default shall have occurred and be continuing, the Administrative Agent may, or shall at the
request of the Required Lenders, irrespective of whether it is taking any of the actions described
in
Section 6.01
or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower shall, pay to the Administrative Agent on behalf of the Lender Parties in same
day funds at the Administrative Agent’s office designated in such demand, for deposit into an
account specified by the Administrative Agent, an amount equal to the aggregate Available Amount of
all Letters of Credit then outstanding, provided, however, that, in the event of an
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actual or deemed entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code,
an amount equal to the aggregate Available Amount of all outstanding Letters of Credit shall be immediately due and payable to the Administrative Agent
for the account of the Lenders without notice to or demand upon the Borrower, both of which are
expressly waived by the Borrower, to be held in an account specified by the Administrative Agent.
If at any time the Administrative Agent determines that any funds held in such account are subject
to any right or claim of any Person other than the Administrative Agent and the Lender Parties or
that the total amount of such funds is less than the aggregate Available Amount of all Letters of
Credit, the Borrower shall, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in such account, an amount equal
to the excess of (a) such aggregate Available Amount over (b) the total amount of funds, if any,
then held in such account that the Administrative Agent determines to be free and clear of any such
right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit in such
account, such funds shall be applied to reimburse the relevant Issuing Bank or Lenders, as
applicable, to the extent permitted by applicable law. If (a)(i) all Letters of Credit for which
funds are on deposit in such account have expired or been terminated and (ii) no Default shall then
be continuing or (b)(i) if the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances and of the Issuing Bank to issue Letters of Credit shall have been
terminated and (ii) all other Obligations shall have been satisfied in full in cash, then the
Administrative Agent shall, within 14 days, return to the Borrower all such monies then remaining
in such account.
ARTICLE VII
ADMINISTRATIVE AGENT
Section 7.01
Appointment and Authority
.
Each Lender Party hereby irrevocably appoints
Citicorp USA, Inc. to act on its behalf as the Administrative Agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. The provisions of this
Article VII
are solely for the benefit of the Administrative Agent and the Lender Parties,
and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of
any of such provisions.
Section 7.02
Administrative Agent Individually
.
(a) The Person serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender Party as any other Lender Party and may exercise the same as
though it were not the Administrative Agent and the term “Lender Party” or “Lender Parties” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind of business with the
MLP or any of its Subsidiaries or other Affiliates thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the Lender Parties.
97
(b) Each Lender Party understands that the Person serving as the Administrative Agent, acting
in its individual capacity, and its Affiliates (collectively, the “
Agent’s Group
”) are engaged in a
wide range of financial services and businesses (including investment management, financing,
securities trading, corporate and investment banking and research) (such services and businesses
are collectively referred to in this
Section 7.02(b)
as “
Activities
”) and may engage in the
Activities with or on behalf of one or more of the Loan Parties or their respective Subsidiaries or
other Affiliates. Furthermore, the Agent’s Group may, in undertaking the Activities, engage in
trading in financial products or undertake other investment businesses for its own account or on
behalf of others (including the Loan Parties and their Subsidiaries or other Affiliates and
including holding, for its own account or on behalf of others, equity, debt and similar positions
in the MLP or any of its Subsidiaries or their respective Affiliates), including trading in or
holding long, short or derivative positions in securities, loans or other financial products of one
or more of the Loan Parties and their Subsidiaries and other Affiliates. Each Lender Party
understands and agrees that, in engaging in the Activities, the Agent’s Group may receive or
otherwise obtain information concerning the Loan Parties and their Subsidiaries or other Affiliates
(including information concerning the ability of the Loan Parties to perform their respective
Obligations hereunder and under the other Loan Documents), which information may not be available
to any of the Lender Parties that are not members of the Agent’s Group. Neither the Administrative
Agent nor any member of the Agent’s Group shall have any duty to disclose to any Lender Party or
use on behalf of the Lender Parties, and they shall not be liable for the failure to so disclose or
use, any information whatsoever about or derived from the Activities or otherwise (including any
information concerning the business, prospects, operations, property, financial and other condition
or creditworthiness of any Loan Party or any of their Subsidiaries or other Affiliates) or to
account for any revenue or profits obtained in connection with the Activities, except that the
Administrative Agent shall deliver or otherwise make available to each Lender Party such documents
as are expressly required by any Loan Document to be transmitted by the Administrative Agent to the
Lender Parties.
(c) Each Lender Party further understands that there may be situations where members of the
Agent’s Group or their respective customers (including the Loan Parties and their Subsidiaries and
other Affiliates) either now have or may in the future have interests or take actions that may
conflict with the interests of any one or more of the Lender Parties (including the interests of
the Lender Parties hereunder and under the other Loan Documents). Each Lender Party agrees that no
member of the Agent’s Group is or shall be required to restrict its activities as a result of the
Person serving as the Administrative Agent being a member of the Agent’s Group, and that each
member of the Agent’s Group may undertake any Activities without further consultation with or
notification to any Lender Party. None of (i) this Agreement nor any other Loan Document, (ii) the
receipt by the Agent’s Group of information concerning the Loan Parties and their Subsidiaries and
other Affiliates (including information concerning the ability of the Loan Parties to perform their
respective Obligations hereunder and under the other Loan Documents) or (iii) any other matter
shall give rise to any fiduciary, equitable or contractual duties (including without limitation any
duty of trust or confidence) owing by the Administrative Agent or any other member of the Agent’s Group to any Lender Party including any such duty
that would prevent or restrict the Agent’s Group from acting on behalf of customers (including the
Loan Parties and their Subsidiaries and other Affiliates) or for its own account.
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Section 7.03
Duties of Administrative Agent; Exculpatory Provisions
.
The
Administrative Agent’s duties hereunder and under the other Loan Documents are solely ministerial
and administrative in nature and the Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, but shall be required to act or refrain
from acting (and shall be fully protected in so acting or refraining from acting) upon the written
direction of the Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents), provided that the Administrative
Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent or any of its Affiliates to liability or that is contrary to
any Loan Document or applicable law.
(b) The Administrative Agent shall not be liable for any action taken or not taken by it (i)
with the consent or at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall
be necessary, under the circumstances as provided in
Article VI
or
Section 8.01
) or
(ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default or the event or events that give or may give
rise to any Default unless and until the Borrower or any Lender Party shall have given notice to
the Administrative Agent describing such Default or such event or events.
(c) Neither the Administrative Agent nor any other member of the Agent’s Group shall be
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty,
representation or other information made or supplied in or in connection with this Agreement, any
other Loan Document or the Information Memorandum, (ii) the contents of any certificate, report or
other document delivered hereunder or thereunder or in connection herewith or therewith or the
adequacy, accuracy and/or completeness of the information contained therein, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document or any other agreement, instrument or
document or the perfection or priority of any Lien or security interest created or purported to be
created by the Security Documents or (v) the satisfaction of any condition set forth in
Article
III
or elsewhere herein, other than (but subject to the foregoing clause (ii)) to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
(d) Nothing in this Agreement or any other Loan Document shall require the Administrative
Agent or any of its Related Parties to carry out any “know your customer” or other checks in
relation to any Person on behalf of any Lender Party and each Lender Party confirms to the
Administrative Agent that it is solely responsible for any such checks it is
required to carry out and that it may not rely on any statement in relation to such checks
made by the Administrative Agent or any of its Related Parties.
Section 7.04
Reliance by Administrative Agent
.
The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any electronic
99
message, Internet or intranet website posting or other distribution) believed by it to be genuine
and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and believed by it to have
been made by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of an Advance, or the issuance of
a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Party, the
Administrative Agent may presume that such condition is satisfactory to such Lender Party unless an
officer of the Administrative Agent responsible for the transactions contemplated hereby shall have
received notice to the contrary from such Lender Party prior to the making of such Advance or the
issuance of such Letter of Credit, and in the case of a Borrowing such Lender Party shall not have
made available to the Administrative Agent such Lender Party’s ratable portion of such Borrowing.
The Administrative Agent may consult with legal counsel (who may be counsel for the MLP or any of
its Subsidiaries or other Affiliates), independent accountants and other experts selected by it,
and shall not be liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
Section 7.05
Indemnification
.
(a) Each Lender Party severally agrees to indemnify the Administrative Agent (to the extent
not promptly reimbursed by the Borrower) from and against such Lender Party’s ratable share
(determined as of the date the event or circumstance giving rise to such Indemnified Cost (as
defined below) occurred as provided below) of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the Administrative Agent
in any way relating to or arising out of the Loan Documents or any action taken or omitted by the
Administrative Agent under the Loan Documents (collectively, the “
Indemnified Costs
”); provided,
however, that no Lender Party shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent’s gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing,
each Lender Party agrees to reimburse the Administrative Agent promptly upon demand for its ratable
share of any costs and expenses (including, without limitation, fees and expenses of counsel),
payable by the Borrower under
Section 8.05
, to the extent that the Administrative Agent is
not promptly reimbursed for such costs and expenses by the Borrower. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs, this
Section
7.05
applies whether any such investigation, litigation or proceeding is brought by any Lender
Party or any other Person.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank (to the extent not
promptly reimbursed by the Borrower) from and against such Lender Party’s ratable share (determined
as of the date the event or circumstance giving rise to such Indemnified Cost occurred as provided
below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against the Issuing Bank in any way relating to or arising out of the Loan
Documents or any action taken or omitted by the Issuing Bank under the Loan Documents; provided,
however, that no Lender Party shall be liable for any portion of such
100
liabilities, obligations,losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Issuing Bank’s gross negligence or willful misconduct as found in a final, non-appealable
judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Lender
Party agrees to reimburse the Issuing Bank promptly upon demand for its ratable share of any costs
and expenses (including, without limitation, fees and expenses of counsel), payable by the Borrower
under
Section 8.05
, to the extent that the Issuing Bank is not promptly reimbursed for such
costs and expenses by the Borrower.
(c) For purposes of this
Section 7.05
, the Lender Parties’ respective ratable shares
of any amount shall be determined, at any time, according to the sum of (i) the aggregate principal
amount of the Advances outstanding at such time and owing to the respective Lender Parties, (ii)
their respective Revolving Pro Rata Shares of the aggregate Available Amount of all Letters of
Credit outstanding at such time and (iii) their respective Unused Revolving Credit Commitments at
such time; provided that the aggregate principal amount of Swing Line Advances owing to the Swing
Line Bank and of Letter of Credit Advances owing to the Issuing Bank shall be considered to be owed
to the Lenders ratably in accordance with their respective Revolving Credit Commitments. The
failure of any Lender Party to reimburse the Administrative Agent or the Issuing Bank, as the case
may be, promptly upon demand for its ratable share of any amount required to be paid by the Lender
Parties to the Administrative Agent or the Issuing Bank, as the case may be, as provided herein
shall not relieve any other Lender Party of its obligation hereunder to reimburse such Agent or the
Issuing Bank, as the case may be, for its ratable share of such amount, but no Lender Party shall
be responsible for the failure of any other Lender Party to reimburse such Agent or the Issuing
Bank, as the case may be, for such other Lender Party’s ratable share of such amount. Without
prejudice to the survival of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this
Section 7.05
shall survive the payment
in full of principal, interest and all other amounts payable hereunder and under the other Loan
Documents and the fulfillment of all obligations in connection with the Fee Letter with respect
hereto.
Section 7.06
Delegation of Duties
.
The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent
and any such sub-agent may perform any and all of their duties and exercise their rights and powers
by or through their respective Related Parties. Each such sub-agent and the Related Parties of the
Administrative Agent and each such sub-agent shall be entitled to the benefits of all provisions of
this
Article VII
and
Section 8.05
(as though such sub-agents were the
“Administrative Agent” under the Loan Documents) as if set forth in full herein with respect
thereto.
Section 7.07
Resignation of Administrative Agent, Issuing Bank or Swing Line Bank
.
(a) The Administrative Agent may at any time give notice of its resignation to the Lender
Parties and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a
commercial bank organized under the laws of the United States or of any State thereof and having a
combined capital and surplus of at least $250,000,000. If no such successor shall
101
have been so appointed by the Required Lenders and shall have accepted such appointment within the Lender Party
Appointment Period, then the resigning Administrative Agent may on behalf of the Lender Parties
appoint a successor Administrative Agent meeting the qualifications set forth above. In addition
and without any obligation on the part of the resigning Administrative Agent to appoint, on behalf
of the Lender Parties, a successor Administrative Agent, the resigning Administrative Agent may at
any time upon or after the end of the Lender Party Appointment Period notify the Borrower and the
Lender Parties that no qualifying Person has accepted appointment as successor Administrative Agent
and the effective date of such resigning Administrative Agent’s resignation which effective date
shall be no earlier than three Business Days after the date of such notice. Upon the resignation
effective date established in such notice and regardless of whether a successor Administrative
Agent has been appointed and accepted such appointment, the resigning Administrative Agent’s
resignation shall nonetheless become effective and (i) the resigning Administrative Agent shall be
discharged from its duties and obligations as the Administrative Agent hereunder and under the
other Loan Documents and (ii) all payments, communications and determinations provided to be made
by, to or through the Administrative Agent shall instead be made by or to each Lender Party
directly, until such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this clause (a). Upon the acceptance of a successor’s appointment as the
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties as the Administrative Agent of the resigning (or resigned)
Administrative Agent, and the resigning Administrative Agent shall be discharged from all of its
duties and obligations as the Administrative Agent hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this clause (a)). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the resigning
Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of
this
Article VII
and
Section 8.05
shall continue in effect for the benefit of such
resigning Administrative Agent, its sub-agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them while the resigning Administrative Agent
was acting as the Administrative Agent.
(b) Any resignation pursuant to this
Section 7.07
by a Person acting as Administrative
Agent shall, unless such Person shall notify the Borrower and the Lender Parties otherwise, also
act to relieve such Person and its Affiliates of any obligation to advance or issue new, or extend
existing, Swing Line Advances where such advance is to occur on or after the effective date of such
resignation. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,
(i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the resigning Swing Line Bank, (ii) the
resigning Swing Line Bank shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents and (iii) the successor Swing Line Bank shall enter
into an Assignment and Acceptance Agreement and acquire from the resigning Swing Line Bank each
outstanding Swing Line Loan of such resigning Swing Line Bank for a purchase price equal to par
plus accrued interest.
(c) The Issuing Bank may at any time give notice of its resignation to the Lender Parties and
the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor, which shall be a
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commercial bank organized under the laws of the United States or of any State thereof and having a combined capital
and surplus of at least $250,000,000. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within the Lender Party Appointment
Period, then the resigning Issuing Bank may on behalf of the Lender Parties appoint a successor
Issuing Bank meeting the qualifications set forth above. In addition and without any obligation on
the part of the resigning Issuing Bank to appoint, on behalf of the Lender Parties, a successor
Issuing Bank, the resigning Issuing Bank may at any time upon or after the end of the Lender Party
Appointment Period notify the Borrower and the Lender Parties that no qualifying Person has
accepted appointment as successor Issuing Bank and the effective date of such resigning Issuing
Bank’s resignation which effective date shall be no earlier than three Business Days after the date
of such notice. Upon the resignation effective date established in such notice and regardless of
whether a successor Issuing Bank has been appointed and accepted such appointment, the resigning
Issuing Bank’s resignation shall nonetheless become effective and relieve such Person and its
Affiliates of any obligation to advance or issue new, or extend existing, Letters of Credit where
such issuance or extension is to occur on or after the effective date of such resignation. Upon
the acceptance of a successor’s appointment as Issuing Bank hereunder, (i) such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the resigning
Issuing Bank, (ii) the resigning Issuing Bank shall be discharged from all of their respective
duties and obligations hereunder or under the other Loan Documents and (iii) the successor Issuing
Bank shall issue Letters of Credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangements satisfactory to the resigning Issuing
Bank to effectively assume the obligations of the resigning Issuing Bank with respect to such
Letters of Credit.
(d) In addition to the foregoing, if a Lender becomes, and during the period it remains, a
Defaulting Lender or a Potential Defaulting Lender, the Issuing Bank and/or the Swing Line Bank
may, at any time, upon giving five Business Days’ prior written notice to the Borrower and the
Administrative Agent, resign as the Issuing Bank or the Swing Line Bank, respectively, effective at
the close of business New York City time on a date specified in such notice; provided that such
resignation by the Issuing Bank shall have no effect on the validity or enforceability of any
Letter of Credit then outstanding or on the obligations of the Borrower or any Lender under this
Agreement with respect to any such outstanding Letter of Credit or otherwise to the Issuing Bank;
and provided, further, that such resignation by the Swing Line Bank shall have no effect on its
rights in respect of any outstanding Swing Line Advances or on the obligations of the Borrower or
any Lender under this Agreement with respect to any such outstanding Swing Line Advances.
Section 7.08
Non-Reliance on Administrative Agent and Other Lender Parties
.
(a) Each Lender Party confirms to the Administrative Agent, each other Lender Party and each
of their respective Related Parties that it (i) possesses (individually or through its Related
Parties) such knowledge and experience in financial and business matters that it is capable,
without reliance on the Administrative Agent, any other Lender Party or any of their respective
Related Parties, of evaluating the merits and risks (including tax, legal, regulatory, credit,
accounting and other financial matters) of (A) entering into this Agreement, (B) making Advances
and other extensions of credit hereunder and under the other Loan Documents and (C) in taking or
not taking actions hereunder and thereunder, (ii) is financially able to bear such risks
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and (iii) has determined that entering into this Agreement and making Advances and other extensions of credit
hereunder and under the other Loan Documents is suitable and appropriate for it.
(b) Each Lender Party acknowledges that (i) it is solely responsible for making its own
independent appraisal and investigation of all risks arising under or in connection with this
Agreement and the other Loan Documents, (ii) it has, independently and without reliance upon the
Administrative Agent, any other Lender Party or any of their respective Related Parties, made its
own appraisal and investigation of all risks associated with, and its own credit analysis and
decision to enter into, this Agreement based on such documents and information as it has deemed
appropriate and (iii) it will, independently and without reliance upon the Administrative Agent,
any other Lender Party or any of their respective Related Parties, continue to be solely
responsible for making its own appraisal and investigation of all risks arising under or in
connection with, and its own credit analysis and decision to take or not take action under, this
Agreement and the other Loan Documents based on such documents and information as it shall from
time to time deem appropriate, which may include, in each case:
(A) the financial condition, status and capitalization of the Borrower and each other
Loan Party;
(B) the legality, validity, effectiveness, adequacy or enforceability of this Agreement
and each other Loan Document and any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any Loan Document;
(C) determining compliance or non-compliance with any condition hereunder to the making
of an Advance, or the issuance of a Letter of Credit and the form and substance of all
evidence delivered in connection with establishing the satisfaction of each such condition;
and/or
(D) the adequacy, accuracy and/or completeness of the Information Memorandum and any
other information delivered by the Administrative Agent, any other Lender Party or any of
their respective Related Parties under or in connection with this Agreement or any other
Loan Document, the transactions contemplated hereby and thereby or any other agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Loan Document.
Section 7.09
No Other Duties, Etc
.
Anything herein to the contrary notwithstanding,
none of the Persons acting as Syndication Agent, Joint Bookrunners or Joint Lead Arrangers or
listed on the cover page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent or as a Lender Party hereunder.
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ARTICLE VIII
MISCELLANEOUS
Section 8.01
Amendments, Etc.
Except as otherwise contemplated by
Section 8.08
and the
Security Documents, no amendment or waiver of any provision of this Agreement or the Notes or any
other Loan Document, nor consent to any departure by any Loan Party therefrom, shall in any event
be effective unless the same shall be in writing and signed (or, in the case of the Security
Documents, consented to) by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given; provided,
however, that (a) no amendment, waiver or consent shall, unless in writing and signed by all of the
Lender Parties, do any of the following at any time: (i) waive any of the conditions specified in
Section 3.01
or
Section 3.02
, (ii) change the number of Lenders or the percentage
of (A) the Commitments, (B) the aggregate unpaid principal amount of the Advances or (C) the
aggregate Available Amount of outstanding Letters of Credit that, in each case, shall be required
for the Lenders or any of them to take any action hereunder, (iii) release all or substantially all
of the collateral or reduce or limit the Obligations, release or otherwise limit the liability of
any Guarantor under the Security Documents with respect to the Obligations owing to the
Administrative Agent and the Lender Parties, (iv) amend
Section 2.13
, or (v) amend this
Section 8.01
, and (b) no amendment, waiver or consent shall, unless in writing and signed
by the Required Lenders and each Lender that has a Commitment hereunder if such Lender is directly
affected by such amendment, waiver or consent, (i) increase the Commitments of such Lender
(including any increase pursuant to
Section 2.18
), (ii) reduce the principal of, or
interest on, the Notes held by such Lender or any fees or other amounts payable hereunder to such
Lender, (iii) postpone any date fixed for any payment of principal of, or interest on, the Notes
held by such Lender or any fees or other amounts payable hereunder to such Lender, (iv) change the
order of application of any prepayment set forth in
Section 2.06
in any manner that
materially affects such Lender; provided, additionally, that no amendment, waiver or consent shall,
unless in writing and signed by the Swing Line Bank or the Issuing Bank, as the case may be, in
addition to the Lenders required above to take such action, affect the rights or obligations of the
Swing Line Bank or of the Issuing Bank, as the case may be, under this Agreement; and provided,
further, that no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such action, affect the
rights or duties of the Administrative Agent under this Agreement or the other Loan Documents.
Anything herein to the contrary notwithstanding, during such period as a Lender is a Defaulting
Lender, to the fullest extent permitted by applicable law such Lender shall not be entitled to vote
in respect of amendments and waivers hereunder and the Commitment and the outstanding Advances or
other extensions of credit of such Lender hereunder shall not be taken into account in determining
whether the Required Lenders or all of the Lenders, as the case may be, have approved any such
amendment or waiver (and the definition of “Required Lenders” shall automatically be deemed
modified accordingly for the duration of such period); provided that any such amendment or waiver
that would increase or extend the term of the Commitment of such Defaulting Lender, extend the date
fixed for the payment of principal or interest owing to such Defaulting Lender hereunder, reduce the principal amount of any obligation owing to such
Defaulting Lender, reduce the amount of or the rate or amount of interest on any amount owing
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to
such Defaulting Lender, or alter the terms of this proviso shall require the consent of such
Defaulting Lender.
Section 8.02
Notices
.
(a) All notices, demands, requests, consents and other communications provided for in this
Agreement shall be given in writing, or by any telecommunication device capable of creating a
written record (including electronic mail), and addressed to the party to be notified as follows:
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(i)
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if to the Borrower or any other Loan Party:
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Oxford Mining Company, LLC
41 South High Street, Suite 3450
Columbus, OH 43215
Attention of: Jeffrey M. Gutman
Telecopier No.: (614) 754-7100
E-Mail Address:
jgutman@oxfordmining.com
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(ii)
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if to the Administrative Agent:
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Citicorp USA, Inc.
1615 Brett Rd OPS3
New Castle, DE 19720
Attention of: Suzanna Gallagher
Telecopier No.: (212) 994-0961
E-Mail Address:
Suzanna.Gallagher@citi.com
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(iii)
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if to the Issuing Bank:
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Fifth Third Bank
38 Fountain Square Plaza
Cincinnati, OH 45263
MD 10AT63
Attention of: Patrick Lingrosso
Telecopier No.: (513) 534-8400
E-Mail Address:
Patrick.lingrosso@53.com
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(iv)
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if to the Swing Line Bank:
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Citibank, N.A.
1615 Brett Rd OPS3
New Castle, DE 19720
Attention of: Suzanna Gallagher
Telecopier No.: (212) 994-0961
E-Mail Address:
Suzanna.Gallagher@citi.com
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106
(v) if to any other Lender Party, to it at its address (or telecopier number) set forth
in its Administrative Questionnaire.
or at such other address as shall be notified in writing (A) in the case of the Borrower, the
Administrative Agent and the Swing Loan Lender, to the other parties, and (B) in the case of all
other parties, to the Borrower and the Administrative Agent.
(b) All notices, demands, requests, consents and other communications described in clause (a)
above shall be effective (i) if delivered by hand, including any overnight courier service, upon
personal delivery, (ii) if delivered by mail, when deposited in the mails, (iii) if delivered by
posting to an Approved Electronic Platform, an Internet website or a similar telecommunication
device requiring that a user have prior access to such Approved Electronic Platform, website or
other device (to the extent permitted by
Section 8.03
to be delivered thereunder), when
such notice, demand, request, consent or other communication shall have been made generally
available on such Approved Electronic Platform, Internet website or similar device to the class of
Person being notified (regardless of whether any such Person must accomplish, and whether or not
any such Person shall have accomplished, any action prior to obtaining access to such items,
including registration, disclosure of contact information, compliance with a standard user
agreement or undertaking a duty of confidentiality) and such Person has been notified in respect of
such posting that a communication has been posted to the Approved Electronic Platform and (iv) if
delivered by electronic mail or any other telecommunications device, when transmitted to an
electronic mail address (or by another means of electronic delivery) as provided in clause (a)
above; provided, however, that notices and communications to the Administrative Agent pursuant to
Article II
or
Article VII
shall not be effective until received by the
Administrative Agent.
(c) Notwithstanding clauses (a) and (b) above (unless the Administrative Agent requests that
the provisions of clause (a) and (b) above be followed) and any other provision in this Agreement
or any other Loan Document providing for the delivery of any Approved Electronic Communication by
any other means, the Loan Parties shall deliver all Approved Electronic Communications to the
Administrative Agent by properly transmitting such Approved Electronic Communications in an
electronic/soft medium in a format acceptable to the Administrative Agent to
oploanswebadmin@citigroup.com or such other electronic mail address (or similar means of electronic
delivery) as the Administrative Agent may notify to the Borrower. Nothing in this clause (c) shall
prejudice the right of the Administrative Agent or any Lender Party to deliver any Approved
Electronic Communication to any Loan Party in any manner authorized in this Agreement or to request
that the Borrower effect delivery in such manner.
Section 8.03
Posting of Approved Electronic Communications
.
(a) Each of the Lender Parties and each Loan Party agree that the Administrative Agent may,
but shall not be obligated to, make the Approved Electronic Communications available to the Lender
Parties by posting such Approved Electronic Communications on IntraLinks™ or a substantially
similar electronic platform chosen by the Administrative Agent to be its electronic transmission
system (the “
Approved Electronic Platform
”).
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(b) Although the Approved Electronic Platform and its primary web portal are secured with
generally-applicable security procedures and policies implemented or modified by the Administrative
Agent from time to time (including, as of the date hereof, a dual firewall and a User ID/Password
Authorization System) and the Approved Electronic Platform is secured through a
single-user-per-deal authorization method whereby each user may access the Approved Electronic
Platform only on a deal-by-deal basis, each of the Lender Parties and each Loan Party acknowledges
and agrees that the distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such distribution. In
consideration for the convenience and other benefits afforded by such distribution and for the
other consideration provided hereunder, the receipt and sufficiency of which is hereby
acknowledged, each of the Lender Parties and each Loan Party hereby approves distribution of the
Approved Electronic Communications through the Approved Electronic Platform and understands and
assumes the risks of such distribution.
(c) THE APPROVED ELECTRONIC PLATFORM AND THE APPROVED ELECTRONIC COMMUNICATIONS ARE PROVIDED
“AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OTHER MEMBER OF THE AGENT’S
GROUP WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE APPROVED ELECTRONIC COMMUNICATIONS OR
THE APPROVED ELECTRONIC PLATFORM AND EACH EXPRESSLY DISCLAIMS ANY LIABILITY FOR ERRORS OR OMISSIONS
IN THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE
APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM.
(d) Each of the Lender Parties and each Loan Party agree that the Administrative Agent may,
but (except as may be required by applicable law) shall not be obligated to, store the Approved
Electronic Communications on the Approved Electronic Platform in accordance with the Administrative
Agent’s generally-applicable document retention procedures and policies.
Section 8.04
No Waiver; Remedies
. No failure on the part of any Lender Party or the Administrative
Agent to exercise, and no delay in exercising, any right hereunder or under any Note or any other
Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies provided by law.
Section 8.05
Costs and Expenses
. (a) The Borrower agrees to pay on demand (i) all reasonable costs
and expenses of the Administrative Agent, the Joint Lead Arrangers and their Affiliates in
connection with the preparation, execution, delivery, administration, modification and amendment of
the Loan Documents (including, without limitation, (A) all reasonable due diligence, collateral
review, syndication, transportation, computer, duplication, appraisal, audit, insurance,
consultant, search, filing and recording fees and expenses and (B) the reasonable fees
108
and expenses
of one firm of counsel to the Administrative Agent with respect thereto, with respect to advising
the Administrative Agent as to its rights and responsibilities, or the perfection, protection or
preservation of rights or interests, under the Loan Documents, with respect to negotiations with
any Loan Party or with other creditors of any Loan Party or any of its Subsidiaries arising out of
any Default or any events or circumstances that may give rise to a Default and with respect to
presenting claims in or otherwise participating in or monitoring any bankruptcy, insolvency or
other similar proceeding involving creditors’ rights generally and any proceeding ancillary
thereto) and (ii) all costs and expenses of the Administrative Agent and each Lender Party in
connection with the enforcement of the Loan Documents after an Event of Default, whether in any
action, suit or litigation, or any bankruptcy, insolvency or other similar proceeding affecting
creditors’ rights generally (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent and each Lender Party with respect thereto). Notwithstanding
anything to the contrary in the foregoing, the Borrower will not be obligated to pay any allocated
costs of in-house counsel of the Administrative Agent, the Joint Lead Arrangers or any of their
Affiliates.
(b) The Borrower agrees to indemnify, defend and save and hold harmless the Administrative
Agent, each Joint Lead Arranger, each Lender Party and each of their Affiliates and their
respective officers, directors, employees, agents and advisors (each, an “
Indemnified Party
”) from
and against, and shall pay on demand, any and all claims, damages, losses, liabilities, penalties
and expenses (including, without limitation, reasonable fees and expenses of counsel, but excluding
allocated overhead cost of the Administrative Agent, the Joint Lead Arrangers and the Lender
Parties and their Affiliates) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation, litigation or proceeding or preparation
of a defense in connection therewith) (i) the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, the Transaction Documents or any of the
transactions contemplated thereby, or (ii) the actual or alleged presence of Hazardous Materials on
any property of any Loan Party or any of its Subsidiaries or any Environmental Action relating in
any way to any Loan Party or any of its Subsidiaries, except in each case to the extent such claim,
damage, loss, liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful
misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity
in this clause
(b)
applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Loan Party, its directors, shareholders
or creditors or an Indemnified Party, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the Transaction is consummated. The Borrower also agrees not to assert
any claim against the Administrative Agent, any Joint Lead Arranger, any Lender Party or any of
their Affiliates, or any of their respective officers,
directors, employees, agents and advisors, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the Facilities, the
actual or proposed use of the proceeds of the Advances or the Letters of Credit, the Transaction
Documents or any of the transactions contemplated by the Transaction Documents.
(c) (i) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made
by the Borrower to or for the account of a Lender Party other than on the last day of the Interest
Period for such Advance, as a result of (A) a payment or Conversion pursuant to
Section
109
2.06
, Section 2.09(b)(i) or
Section 2.10(d)
, (B) acceleration of the maturity of the
Notes pursuant to
Section 6.01
or (C) for any other reason, or by an Eligible Assignee to a
Lender Party other than on the last day of the Interest Period for such Advance upon an assignment
of rights and obligations under this Agreement pursuant to
Section 8.08
as a result of a
demand by the Borrower pursuant to
Section 8.08(a)
, (ii) if the Borrower fails to make any
payment or prepayment of an Advance for which a notice of prepayment has been given or that is
otherwise required to be made or fails to continue an Advance for which notice of the same has been
given, whether pursuant to
Section 2.04
,
Section 2.06
or
Section 6.01
or
otherwise, or (iii) if the Borrower fails to fulfill the applicable conditions set forth in
Article III
on or before the date specified in any Notice of Borrowing for such Borrowing
delivered pursuant to
Section 2.02
, the Borrower shall, upon demand by such Lender Party
(with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result of such payment or
Conversion or such failure to pay or prepay or borrow, as the case may be, including, without
limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any Lender Party to fund or
maintain such Advance, all of which losses, costs and expenses shall be an amount equal to the
excess, if any, of (X) the amount of interest that would have accrued on the principal amount of
such Advance had such event not occurred at the Eurodollar Rate that would have been applicable to
such Advance for the period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, continue or Convert, for the
period that would have been the Interest Period for such Advance), over (Y) the amount of interest
that would accrue on such principal amount for such period at the interest rate which such Lender
would bid, were it to bid at the commencement of such period, for dollar deposits of a comparable
amount and period from other banks in the eurodollar market. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant to this
Section
8.05
, and the basis therefor, shall be delivered to the Borrower and shall be conclusive and
binding for all purposes, absent manifest error.
(d) If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it
under any Loan Document, including, without limitation, reasonable fees and expenses of counsel and
indemnities, such amount may be paid on behalf of such Loan Party by the Administrative Agent or
any Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any Loan Party hereunder or
under any other Loan Document, the agreements and obligations of the Borrower contained in
Section 2.10
and
Section 2.12
and this
Section 8.05
shall survive the
payment in full
of principal, interest and all other amounts payable hereunder and under any of the other Loan
Documents.
Section 8.06
Right of Set-off
. Upon (a) the occurrence and during the continuance of any Event of
Default and (b) the making of the request or the granting of the consent specified by
Section
6.01
to authorize the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of
Section 6.01
, the Administrative Agent and each Lender Party and each of
their respective Affiliates is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and otherwise apply any and all deposits (general or
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special,
time or demand, provisional or final) at any time held and other indebtedness at any time owing by
the Administrative Agent, such Lender Party or such Affiliate to or for the credit or the account
of the Borrower against any and all of the Obligations of the Borrower now or hereafter existing
under the Loan Documents, irrespective of whether the Administrative Agent or such Lender Party
shall have made any demand under this Agreement or such Note or Notes and although such Obligations
may be unmatured. The Administrative Agent and each Lender Party agrees promptly to notify the
Borrower after any such set-off and application; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application. The rights of the
Administrative Agent and each Lender Party and their respective Affiliates under this
Section
8.06
are in addition to other rights and remedies (including, without limitation, other rights
of set-off) that the Administrative Agent, such Lender Party and their respective Affiliates may
have.
Section 8.07
Binding Effect
. This Agreement shall become effective when it shall have been
executed by the Borrower and the Administrative Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent and each Lender Party and their respective
successors and assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the Lender Parties.
Section 8.08
Assignments and Participations
. (a) Any Lender may (and, in the case of a demand
therefor by the Borrower pursuant to
Section 2.17
, shall) assign to one or more Eligible
Assignees or an Affiliate of a Lender all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment or Commitments, the
Advances owing to it and the Note or Notes held by it); provided, however, that, if the assignment
is demanded by the Borrower pursuant to
Section 2.17
, no Default shall have occurred and be
continuing at the time of such demand and such assignment and the Borrower shall have given at
least five Business Days’ notice of such demand to the applicable Lender and the Administrative
Agent; and provided, further, that (i) each such assignment shall be of a uniform, and not a
varying, percentage of all rights and obligations under and in respect of one or more of the
Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender, an Affiliate of any Lender or an assignee of all of a Lender’s rights and
obligations under this Agreement, the
aggregate amount of the Commitments being assigned to such Eligible Assignee pursuant to such
assignment (determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than the lesser of $5,000,000 and 5% of the aggregate amount
(or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default
shall have occurred and be continuing at the time of effectiveness of such assignment, the
Borrower) of the Commitment being assigned, (iii) each such assignment shall be to an Eligible
Assignee or an Affiliate of a Lender, (iv) each such assignment made as a result of a demand by the
Borrower pursuant to
Section 2.17
shall be arranged by the Borrower after consultation with
the Administrative Agent and shall be either an assignment of all of the rights and obligations of
the assigning Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such assignments that together
cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender
shall be obligated to make any such assignment (whether as a result of a demand by
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the Borrower
pursuant to
Section 2.17
or otherwise) unless and until such Lender shall have received one
or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount
at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender,
together with accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, and (vi) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,500 (provided that the Borrower shall have no
liability for the payment of such fee except that, for each such assignment made as a result of a
demand by the Borrower pursuant to
Section 2.17
, the Borrower shall pay to the
Administrative Agent the applicable processing and recordation fee).
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date
specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case
may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under
Section 2.10
,
Section
2.12
and
Section 8.05
to the extent any claim thereunder relates to an event arising
prior to such assignment) and be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s
or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall
cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor
thereunder and each assignee thereunder confirm to and agree with each other and the other parties
thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such
assigning Lender Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any Lien created or purported to be created under or in
connection with, any Loan Document or any other instrument
or document furnished pursuant thereto; (ii) such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the General Partner, or any Loan Party or any of its Subsidiaries, or the performance or observance
by any Loan Party of any of its obligations under any Loan Document or any other instrument or
document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section
5.03
and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning Lender Party or
any other Lender Party and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
112
behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to the Administrative Agent by
the terms hereof and thereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed by it as a Lender
or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to in
Section 8.02
a copy of each Incremental Amendment and each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the Lender Parties and the
Commitment under each Facility of, and principal amount of the Advances owing under each Facility
to, each Lender Party from time to time (the “
Register
”). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lender Parties may treat each Person whose name is recorded in the
Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or the Administrative Agent or any Lender Party at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and
an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in substantially the form of
Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the Borrower and the
Administrative Agent. In the case of any assignment by a Lender, within five Business Days after
its receipt of such notice, the Borrower, at its own expense, shall, if new Notes are requested by
the applicable assignee and/or assignor, execute and deliver to the Administrative Agent in
exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and
Acceptance and, if any assigning Lender has retained a Commitment hereunder under such Facility, a
new Note to the order of such assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A
hereto.
(f) The Issuing Bank may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time;
provided, however, that (i) except in the case of an assignment to a Person that immediately prior
to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank’s rights and
obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning
Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall
be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with a processing and recordation fee of $3,500.
113
(g) Each Lender Party may sell participations to one or more Persons (other than any Loan
Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing
to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender Party’s
obligations under this Agreement (including, without limitation, its Commitments) shall remain
unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender Party shall remain the holder of any such
Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other
Lender Parties shall continue to deal solely and directly with such Lender Party in connection with
such Lender Party’s rights and obligations under this Agreement and (v) no participant under any
such participation shall have any right to approve any amendment or waiver of any provision of any
Loan Document, or any consent to any departure by or on behalf of any Loan Party therefrom, except
to the extent that such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to
such participation, postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such
participation, or release any Subsidiary Guarantor.
(h) Any Lender Party may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this
Section 8.08
, disclose to the assignee or
participant or proposed assignee or participant any information relating to the Borrower furnished
to such Lender Party by or on behalf of the Borrower; provided, however, that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve
the confidentiality of any Information (as defined in
Section 8.11
) received by it from
such Lender Party in accordance with
Section 8.11
.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at
any time pledge or assign all or any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and the Note or Notes held by it) to secure obligations of
such Lender Party, including without limitation any pledge or assignment in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve
System; provided that no such pledge or assignment shall release a Lender Party from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender Party as a party
hereto.
Section 8.09
Execution in Counterparts
. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of an original executed counterpart of this Agreement.
Section 8.10
No Liability of Issuing Bank
. The Borrower assumes all risks of the acts or omissions
of any beneficiary or transferee of any Letter of Credit with respect to its use of such Letter of
Credit. Neither the Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (b) the validity, sufficiency or
114
genuineness
of documents, or of any endorsement thereon, even if such documents should prove to be in any or
all respects invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank against
presentation of documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the Letter of Credit; or
(d) any other circumstances whatsoever in making or failing to make payment under any Letter of
Credit, except that the Borrower shall have a claim against the Issuing Bank, and the Issuing Bank
shall be liable to the Borrower, to the extent of any direct, but not consequential, damages
suffered by the Borrower or any of its Subsidiaries that the Borrower proves were caused by (i) the
Issuing Bank’s gross negligence or willful misconduct as determined in a final, non-appealable
judgment by a court of competent jurisdiction in determining whether documents presented under any
Letter of Credit comply with the terms of the Letter of Credit or (ii) the Issuing Bank’s willful
failure to make lawful payment under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further investigation, regardless
of any notice or information to the contrary.
Section 8.11
Confidentiality
. Each of the Administrative Agent and the Lender Parties agree to
maintain the confidentiality of the Information (as defined below), except that Information may be
disclosed (a) to its Related Parties (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory authority purporting to
have jurisdiction over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document, any action
or proceeding relating to this Agreement or any other Loan Document, the enforcement of rights
hereunder or thereunder or any litigation or proceeding to which the Administrative Agent or any
Lender Party or any of their respective Affiliates may be a party, (f) subject to an agreement
containing provisions substantially the same as those of this
Section 8.11
to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (ii) any actual or prospective party (or its managers,
administrators, trustees, partners, directors, officers, employees, agents, advisors and other
representatives) surety, reinsurer, guarantor or credit liquidity enhancer (or their advisors) to
or in connection with any swap, derivative or other similar transaction under which payments are to
be made by reference to the Obligations or to the Borrower and its obligations or to this Agreement
or payments hereunder, (iii) to any rating agency when required by it or (iv) the CUSIP Service
Bureau or any similar organization, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of this
Section
8.11
or (ii) becomes available to the Administrative Agent, any Lender Party or any of their
respective Affiliates on a nonconfidential basis from a source other than a Loan Party. For
purposes of this
Section 8.11
, “
Information
” means all information received from a Loan
Party or any of its respective Subsidiaries relating to a Loan Party or any of its respective
Subsidiaries or any of their respective businesses, other than any such information that is
available to the Administrative Agent or any Lender Party on a nonconfidential basis prior to
disclosure by any Loan Party or any of its respective Subsidiaries, provided that, in the case of
115
information received from a Loan Party or any of its Subsidiaries after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this
Section 8.11
shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
Section 8.12
Treatment of Information
.
(a) Certain of the Lenders may enter into this Agreement and take or not take action hereunder
or under the other Loan Documents on the basis of information that does not contain material
non-public information with respect to any of the Obligors or their securities (“
Restricting
Information
”). Other Lenders may enter into this Agreement and take or not take action hereunder
or under the other Loan Documents on the basis of information that may contain Restricting
Information. Each Lender Party acknowledges that United States federal and state securities laws
prohibit any Person from purchasing or selling securities on the basis of material, non-public
information concerning the issuer of such securities or, subject to certain limited exceptions,
from communicating such information to any other Person. Neither the Administrative Agent nor any
of its Related Parties shall, by making any Communications (including Restricting Information)
available to a Lender Party, by participating in any conversations or other interactions with a
Lender Party or otherwise, make or be deemed to make any statement with regard to or otherwise
warrant that any such information or Communication does or does not contain Restricting Information
nor shall the Administrative Agent or any of its Related Parties be responsible or liable in any
way for any decision a Lender Party may make to limit or to not limit its access to Restricting
Information. In particular, none of the Administrative Agent nor any of its Related Parties (i)
shall have, and the Administrative Agent, on behalf of itself and each of its Related Parties,
hereby disclaims, any duty to ascertain or inquire as to whether or not a Lender Party has or has
not limited its access to Restricting Information, such Lender Party’s policies or procedures
regarding the safeguarding of material,
nonpublic information or such Lender Party’s compliance with applicable laws related thereto
or (ii) shall have, or incur, any liability to any Loan Party or Lender Party or any of their
respective Related Parties arising out of or relating to the Administrative Agent or any of its
Related Parties providing or not providing Restricting Information to any Lender Party.
(b) Each Loan Party agrees that (i) all Communications it provides to the Administrative Agent
intended for delivery to the Lender Parties whether by posting to the Approved Electronic Platform
or otherwise shall be clearly and conspicuously marked “PUBLIC” if such Communications do not
contain Restricting Information which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof, (ii) by marking Communications “PUBLIC,” each Loan Party
shall be deemed to have authorized the Administrative Agent and the Lender Parties to treat such
Communications as either publicly available information or not material information (although, in
this latter case, such Communications may contain sensitive business information and, therefore,
remain subject to the confidentiality undertakings of
Section 8.11
) with respect to such
Loan Party or its securities for purposes of United States Federal and state securities laws, (iii)
all Communications marked “PUBLIC” may be delivered to all Lender Parties and may be made available
through a portion of the Approved Electronic Platform designated “Public Side
116
Information,” and
(iv) the Administrative Agent shall be entitled to treat any Communications that are not marked
“PUBLIC” as Restricting Information and may post such Communications to a portion of the Approved
Electronic Platform not designated “Public Side Information.” Neither the Administrative Agent nor
any of its Affiliates shall be responsible for any statement or other designation by a Loan Party
regarding whether a Communication contains or does not contain material non-public information with
respect to any of the Loan Parties or their securities nor shall the Administrative Agent or any of
its Affiliates incur any liability to any Loan Party, any Lender Party or any other Person for any
action taken by the Administrative Agent or any of its Affiliates based upon such statement or
designation, including any action as a result of which Restricting Information is provided to a
Lender Party that may decide not to take access to Restricting Information. Nothing in this
Section 8.12
shall modify or limit a Lender Party’s obligations under
Section 8.11
with regard to Communications and the maintenance of the confidentiality of or other treatment of
Information.
(c) Each Lender Party acknowledges that circumstances may arise that require it to refer to
Communications that might contain Restricting Information. Accordingly, each Lender Party agrees
that it will nominate at least one designee to receive Communications (including Restricting
Information) on its behalf and identify such designee (including such designee’s contact
information) on such Lender Party’s Administrative Questionnaire. Each Lender Party agrees to
notify the Administrative Agent from time to time of such Lender Party’s designee’s e-mail address
to which notice of the availability of Restricting Information may be sent by electronic
transmission.
(d) Each Lender Party acknowledges that Communications delivered hereunder and under the other
Loan Documents may contain Restricting Information and that such Communications are available to
all Lender Parties generally. Each Lender Party that elects not to take access to Restricting
Information does so voluntarily and, by such election, acknowledges and agrees that the
Administrative Agent and other Lender Parties may have access to Restricting Information that is
not available to such electing Lender Party. Neither the
Administrative Agent nor any Lender Party with access to Restricting Information shall have
any duty to disclose such Restricting Information to such electing Lender Party or to use such
Restricting Information on behalf of such electing Lender Party, or be liable for the failure to so
disclose or use such Restricting Information.
(e) The provisions of the foregoing clauses of this
Section 8.12
are designed to
assist the Administrative Agent, the Lender Parties and the Loan Parties, in complying with their
respective contractual obligations and applicable law in circumstances where certain Lender Parties
express a desire not to receive Restricting Information notwithstanding that certain Communications
hereunder or under the other Loan Documents or other information provided to the Lender Parties
hereunder or thereunder may contain Restricting Information. Neither the Administrative Agent or
any of its Related Parties warrants or makes any other statement with respect to the adequacy of
such provisions to achieve such purpose nor does the Administrative Agent or any of its Related
Parties warrant or make any other statement to the effect that a Loan Party’s or Lender Party’s
adherence to such provisions will be sufficient to ensure compliance by such Loan Party or Lender
Party with its contractual obligations or its duties under applicable law in respect of Restricting
Information and each of the Lender Parties and each Loan Party assumes the risks associated
therewith.
117
Section 8.13
Jurisdiction, Etc.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York
State court or Federal court of the United States sitting in New York County, New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding shall be heard and determined in
any such New York State court or, to the fullest extent permitted by law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such action or proceeding, to the
extent permitted by law, shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement or any of
the other Loan Documents to which it is a party in any New York State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.
Section 8.14
Governing Law
. This Agreement and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
Section 8.15
MLP and Subsidiary Guarantors as Limited Parties; Non-Recourse to the General Partner and
Associated Persons
. The MLP and each Subsidiary Guarantor is executing this Agreement for the
limited purpose of making the representations and warranties contained herein and for acknowledging
and agreeing to the covenants contained herein. This limitation shall not limit such party’s
obligations under any of the Security Documents. The Administrative Agent and each Lender Party
agrees, on behalf of itself and its successors, assigns and legal representatives, that neither the
General Partner, nor any Person (other than the Loan Parties) which is a partner, shareholder,
member, owner, officer, director, supervisor, trustee or other principal (collectively, “
Associated
Persons
”) of the General Partner, or any of their respective successors or assigns, shall have any
personal liability for the payment or performance of any of the Loan Parties’ obligations hereunder
or under any of the Notes and no monetary or other judgment shall be sought or enforced against the
General Partner or any of such Associated Persons or any of their respective successors or assigns.
Notwithstanding the foregoing, neither the Administrative Agent nor any Lender Party shall be
deemed barred by this
Section 8.15
from asserting any claim against any Person based upon
an allegation of fraud or misrepresentation.
Section 8.16
Patriot Act Notice
. Each Lender and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001 (the “
Patriot Act
”), it
is required to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information that will allow
such Lender or the Administrative Agent, as applicable, to identify the Borrower in
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accordance with
the Patriot Act. The Borrower shall provide, to the extent commercially reasonable, such
information and take such actions as are reasonably requested by the Administrative Agent or any
Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance with
the Patriot Act.
Section 8.17
Survival
. All covenants, agreements, representations and warranties made by any Loan
Party and each of its Subsidiaries herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this Agreement and the making
of any Advances and issuance of any Letters of Credit, regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the Administrative Agent or any Lender
Party may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Advance or any fee or any other amount payable
under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long
as the Commitments have not expired or terminated. The provisions of
Section 2.10
,
Section 2.12
,
Article VII
,
Section 8.05
,
Section 8.13
,
Section
8.14
and
Section 8.19
shall survive and remain in full force and effect regardless of
the consummation of the transactions
contemplated hereby, the repayment of the Advances, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof
.
Section 8.18
Entire Agreement
. This Agreement and the other Loan Documents constitute the entire
agreement between the parties with respect to the subject matter hereof, and any other agreement,
statement, understanding, representation or warranty, whether oral or written, made or entered into
prior to the date hereof with respect to the subject matter hereof (other than the Fee Letter and
any Letter of Credit Agreement in respect of a Letter of Credit issued prior to the date hereof
that remains outstanding, all of which shall survive in full force and effect the execution and
delivery hereof) is superseded by this Agreement and the other Loan Documents.
Section 8.19
WAIVER OF JURY TRIAL
. EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDER
PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS, THE ADVANCES, THE LETTERS OF CREDIT OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY
LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
[Signature Page to Follow]
119
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the date first above written.
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OXFORD MINING COMPANY, LLC, an Ohio
limited liability
company
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By:
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/s/ Jeffrey M. Gutman
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Jeffrey M. Gutman,
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Senior Vice President and
Chief Financial Officer
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OXFORD RESOURCE PARTNERS, LP, a
Delaware limited
partnership
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By:
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Oxford Resources GP, LLC, a Delaware limited
liability company, its general partner
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By:
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/s/ Jeffrey M. Gutman
Jeffrey M. Gutman,
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Senior Vice President and
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Chief Financial Officer
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OXFORD MINING COMPANY-KENTUCKY LLC, a Kentucky
limited liability company
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By:
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/s/ Jeffrey M. Gutman
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Jeffrey M. Gutman,
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Senior Vice President and
Chief Financial Officer
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DARON COAL COMPANY, LLC, an Ohio limited liability
company
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By:
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/s/ Charles C. Ungurean
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Charles C. Ungurean,
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President
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[Credit Agreement Signature Page]
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CITICORP USA, INC.
,
as Administrative Agent
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By:
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/s/ Christopher M. Wood
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Christopher M. Wood
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Director
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[Credit Agreement Signature Page]
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CITIBANK, N.A.
,
as Swing Line Bank and Lender
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By:
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/s/ Justin S. Tichauer
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Justin S. Tichauer
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Vice President
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[Credit Agreement Signature Page]
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BARCLAYS BANK PLC
,
as Co-Syndication Agent and Lender
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By:
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/s/ Nicholas A. Bell
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Nicholas A. Bell
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Director
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[Credit Agreement Signature Page]
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HUNTINGTON NATIONAL BANK
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as Co-Syndication Agent and Lender
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By:
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/s/ Jeff D. Blendick
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Jeff D. Blendick
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Vice President
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[Credit Agreement Signature Page]
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FIFTH THIRD BANK, AN OHIO BANKING CORPORATION
,
as Co-Documentation Agent, Issuing Bank and Lender
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By:
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/s/ Patrick Lingrosso
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Patrick Lingrosso
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Officer
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[Credit Agreement Signature Page]
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COMERICA BANK
,
as Co-Documentation Agent and Lender
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By:
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/s/ Daniel J. Grady
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Daniel J. Grady
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Vice President
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[Credit Agreement Signature Page]
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CATERPILLAR FINANCIAL SERVICE CORPORATION
, as Lender
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By:
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/s/ Jennifer A. Coyle
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Jennifer A. Coyle
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Managing Director
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[Credit Agreement Signature Page]
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SOCIÉTÉ GÉNÉRALE,
as Lender
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By:
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/s/ Emmanuel Chesneau
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Emmanuel Chesneau
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Managing Director
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[Credit Agreement Signature Page]
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as Lender
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By:
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/s/ Bill O’Daly
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Bill O’Daly
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Director
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By:
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/s/ Christopher Reo Day
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Christopher Reo Day
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Associate
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[Credit Agreement Signature Page]
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WELLS FARGO BANK N.A.,
as Lender
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By:
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/s/ Arnold W. Adkins, Jr.
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Arnold W. Adkins, Jr.
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Vice President
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[Credit Agreement Signature Page]
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RAYMOND JAMES BANK, FSB,
as Lender
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By:
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/s/ James M. Armstrong
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James M. Armstrong
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Vice President
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[Credit Agreement Signature Page]
EXHIBIT A-1
REVOLVING NOTE
FOR VALUE RECEIVED, OXFORD MINING COMPANY, LLC, an Ohio limited liability company (the
“
Borrower
”), promises to pay to
(the “
Lender
”), on or before [
, 2013], the
principal sum of
AND NO/100 DOLLARS ($
) or, if less, the unpaid
principal amount of all Revolving Advances (defined below) made by the Lender to the Borrower under
the Credit Agreement referred to below.
The Borrower promises to pay interest on the unpaid principal amount of this Revolving Note
(this “
Note
”) from the date hereof until paid at the rates and at the times as specified in the
Credit Agreement (as amended, restated, or otherwise modified from time to time, the “
Credit
Agreement
”), dated as of June ___, 2010, among the Borrower, the lenders from time to time party
thereto (the “
CA Lenders
”), and Citicorp USA, Inc., as administrative agent for the CA Lenders (in
such capacity and together with its successors in such capacity, the “
Administrative Agent
”).
Capitalized terms used but not otherwise defined herein shall have the same meanings as are
assigned to such terms in the Credit Agreement.
The Lender is hereby authorized to endorse the date and amount of each Revolving Credit
Advance, Swing Line Advance, and Letter of Credit Advance (collectively, the “
Revolving Advances
”)
made by the Lender and each repayment or prepayment of principal of each Revolving Advance made
with respect to this Note on the schedule that is annexed to and constitutes a part of this Note,
which endorsement shall constitute prima facie evidence, absent manifest error, of the accuracy of
the information so endorsed on such schedule;
provided
, however, that the failure of the
Lender to endorse or record any such Revolving Advance, repayments or prepayments shall not affect
the obligations of the Borrower hereunder or under the Credit Agreement.
This Note is one of the Borrower’s “Notes” issued pursuant to and entitled to the benefits of
the Credit Agreement and the other Loan Documents to which reference is hereby made for a more
complete statement of the terms and conditions under which the Revolving Advances evidenced hereby
are made and are to be repaid.
All payments of principal and interest in respect of this Note shall be made in accordance
with the terms of the Credit Agreement. This Note evidences borrowings under, is subject to, is
secured in accordance with, and may be prepaid, accelerated or matured under the terms of the
Credit Agreement, to which reference is hereby made.
The Borrower hereby waives diligence, presentment, protest, demand and notice of every kind
and, to the full extent permitted by applicable law, the right to plead any statute of limitations
as a defense to any demand hereunder.
A1-1
THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and delivered as of the
day and year first above written.
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|
OXFORD MINING COMPANY, LLC, an Ohio limited
liability company
|
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|
By:
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Name:
|
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|
Title:
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A1-2
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Outstanding
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|
Amount of
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|
Amount of
|
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|
Principal
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Loan Made
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|
Principal Paid
|
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|
Balance
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Notation
|
|
|
Date
|
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|
This Date
|
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This Date
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|
This Date
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Made By
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|
A1-3
EXHIBIT A-2
TERM NOTE
FOR VALUE RECEIVED, OXFORD MINING COMPANY, LLC, an Ohio limited liability company (the
“
Borrower
”), promises to pay to
(the “
Lender
”) the principal sum of
AND NO/100 DOLLARS ($
) or, if less, the unpaid principal
amount of all Term Loan Advances made by the Lender to the Borrower under the Credit Agreement (as
amended, restated, or otherwise modified from time to time, the “
Credit Agreement
”), dated June ___,
2010, among the Borrower, the lenders from time to time party thereto (the “
CA Lenders
”), and
Citicorp USA, Inc., as administrative agent for the CA Lenders (in such capacity and together with
its successors in such capacity, the “
Administrative Agent
”), payable in the amount and on the
dates set forth in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of this Term Note (this
“
Note
”) from the date hereof until paid at the rates and at the times as specified in the Credit
Agreement. Capitalized terms used but not otherwise defined herein shall have the same meanings as
are assigned to such terms in the Credit Agreement.
The Lender is hereby authorized to endorse the date and amount of each Term Loan Advance made
by the Lender and each repayment or prepayment of principal of each Term Loan Advance made with
respect to this Note on the schedule that is annexed to and constitutes a part of this Note, which
endorsement shall constitute prima facie evidence, absent manifest error, of the accuracy of the
information so endorsed on such schedule;
provided
, however, that the failure of the Lender
to endorse or record any such Term Loan Advance, repayments or prepayments shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This Note is one of the Borrower’s “Notes” issued pursuant to and entitled to the benefits of
the Credit Agreement and the other Loan Documents to which reference is hereby made for a more
complete statement of the terms and conditions under which the Term Loan Advances evidenced hereby
are made and are to be repaid.
All payments of principal and interest in respect of this Note shall be made in accordance
with the terms of the Credit Agreement. This Note evidences borrowings under, is subject to, is
secured in accordance with, and may be prepaid, accelerated or matured under the terms of the
Credit Agreement, to which reference is hereby made.
The Borrower hereby waives diligence, presentment, protest, demand and notice of every kind
and, to the full extent permitted by applicable law, the right to plead any statute of limitations
as a defense to any demand hereunder.
THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
A2-1
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and delivered as of the
day and year first above written.
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|
|
OXFORD MINING COMPANY, LLC, an Ohio limited
liability company
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
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A2-2
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Outstanding
|
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|
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|
Amount of
|
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|
Amount of
|
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|
Principal
|
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Loan Made
|
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Principal Paid
|
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|
Balance
|
|
|
Notation
|
|
|
Date
|
|
|
This Date
|
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This Date
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|
This Date
|
|
|
Made By
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|
A2-3
EXHIBIT B
NOTICE OF BORROWING
DATE: ________ ___, 20__
Citicorp USA, Inc.,
as Administrative Agent
[666 Fifth Avenue]
[New York, New York 10103]
Ladies and Gentlemen:
This Notice of Borrowing is executed and delivered by Oxford Mining Company, LLC (the “
Borrower
”)
to Citicorp USA, Inc., as administrative agent for the Lenders (in such capacity and together with
its successors in such capacity, the “
Administrative Agent
”), pursuant to Section 2.02(a) of that
certain Credit Agreement (as amended, restated, or otherwise modified from time to time, the
“
Credit Agreement
”), dated as of June ___, 2010, among the Borrower, the lenders from time to time
party thereto (the “
Lenders
”), and the Administrative Agent. Capitalized terms used but not
otherwise defined herein shall have the same meanings as are assigned to such terms in the Credit
Agreement.
1. The Borrower hereby makes the below request.
(a) A Borrowing or a Conversion or continuation of a Borrowing, whichever is indicated (check
one box only):
o
A Borrowing
o
A Conversion or continuation of a Borrowing
(b) On
the following date (must be a Business Day):
(c) Facility and amount for the Borrowing:
|
|
•
|
|
[From the Revolving Credit Facility in the amount of $
]
|
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|
|
|
•
|
|
[On the date of the initial funding under the Credit Agreement, from the
Term Loan Facility in the amount of $
]
|
(d) Type of Advance (check one box only):
o
A Base Rate Advance
o
A Eurodollar Rate Advance
(d) Interest Period if a Eurodollar Rate Advance (check one box only):
B-1
o
NA
o
1 month
o
2 months
o
3 months
o
6 months
2. In connection with the [Borrowing] [Conversion] [continuation] requested herein, the Borrower
hereby represents, warrants, and certifies to the Administrative Agent and the Lender Parties that:
(a) On and as of the date of the [Borrowing] [Conversion] [continuation] requested herein and
before and after giving effect to such [Borrowing] [Conversion] [continuation], the representations
and warranties set forth in Article IV of the Credit Agreement or in any other Loan Document, or
which are contained in any document furnished at any time or in connection herewith or therewith,
shall be true and correct in all material respects, except to the extent that such representations
and warranties, by their terms, refer to an earlier date, in which case they shall be correct in
all material respects as of such earlier date;
(b) Since the date of the last financial statements delivered in accordance with Section 5.03 of
the Credit Agreement, no event has occurred, and no condition exists, which has resulted or which
could be reasonably be expected to result in a Material Adverse Effect.
(c) No Event of Default has occurred and is continuing on and as of such date, or would result from
this [Borrowing] [Conversion] [continuation]; and
(d) The conditions precedent to the making of such [Borrowing] [Conversion] [continuation] as set
forth in Section 3.02(a) of the Credit Agreement have been satisfied.
3. The Borrower’s instructions for distribution of Advance proceeds (appropriate wire instructions,
etc.) following deposit thereof into the Borrower’s Account, if any, are as follows:
[balance of page intentionally left blank with execution page to follow]
B-2
IN WITNESS WHEREOF, the Borrower has executed this Notice of Borrowing on the date first set forth
above.
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OXFORD MINING COMPANY, LLC, an
Ohio limited liability company
|
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|
|
By:
|
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|
|
|
Name:
|
|
|
|
|
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Title:
|
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B-3
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance (this “Assignment and Acceptance”) is dated as of the Effective Date
set forth below and is entered into by and between
[the][each]
Assignor identified in item 1 below
(
[the][each, an]
“Assignor”) and
[the][each]
Assignee identified in item 2 below (
[the][each, an]
“Assignee”).
[It is understood and agreed that the rights and obligations of [the Assignors] [the
Assignees] [the Assignors and the Assignees] hereunder are several and not joint.]
Capitalized
terms used but not otherwise defined herein shall have the same meanings as are assigned to them in
the Credit Agreement identified below (the “Credit Agreement”), receipt of a copy of which is
hereby acknowledged by
[the][each]
Assignee. The Standard Terms and Conditions set forth in
Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and made
a part of this Assignment and Acceptance as if set forth herein in full.
For an agreed consideration,
[the][each]
Assignor hereby irrevocably sells and assigns to
[the
Assignee][the respective Assignees]
, and
[the][each]
Assignee hereby irrevocably purchases, accepts
and assumes from
[the Assignor][the respective Assignors]
, subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below, (i) all of
[the Assignor’s][the respective Assignors’]
rights and obligations in
[its capacity as a Lender][their respective capacities as Lenders]
under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of
[the Assignor][the respective Assignors]
under the respective facilities
identified below (including, without limitation, in respect of the Letters of Credit and the Letter
of Credit Commitment) and (ii) to the extent permitted to be assigned under applicable law, all
claims, suits, causes of action and any other right of
[the Assignor (in its capacity as a
Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person,
whether known or unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the Transactions governed thereby or in any
way based on or related to any of the foregoing, including, without limitation, contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law or in equity related
to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned by
[the][any]
Assignor to
[the][any]
Assignee pursuant to clauses (i)
and (ii) above being referred to herein collectively as
[the][an]
“Assigned Interest”). Each such
sale and assignment is without recourse to
[the][any]
Assignor and, except as expressly provided in
this Assignment and Acceptance, without representation or warranty by
[the][any]
Assignor.
Furthermore,
[the][each]
Assignee confirms that it is an Eligible Assignee or an Affiliate of a
Lender that is not an Eligible Assignee under the Credit Agreement.
C-1
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2.
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Assignee
[s]
:
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Name
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Identification
1
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3.
|
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Borrower:
|
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Oxford Mining Company, LLC
|
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4.
|
|
Administrative Agent
: Citicorp USA, Inc., as the administrative agent under the
Credit Agreement, together with its successors in such capacity
|
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|
5.
|
|
Credit Agreement
: Credit Agreement, dated as of June ___, 2010, among Oxford Mining
Company, LLC, the lenders from time to time party thereto, and the Administrative Agent, as
amended, restated, or otherwise modified from time to time
|
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6.
|
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Assigned Interest:
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Revolving Credit Facility
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Amount of
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Percentage
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Aggregate
|
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|
Revolving Credit
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Assigned of
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Amount of Revolving
|
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|
Facility
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Revolving Credit
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Credit Facility
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Revolving Credit
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Facility
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Revolving Credit
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Commitment/
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Revolving Credit
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Commitments/Advances
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Advances
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Commitment/
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Assignor[s]
2
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Assignee[s]
3
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for all Lenders
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Assigned
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Advances
4
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$
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$
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%
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$
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$
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%
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$
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$
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%
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1
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For each Assignee, indicate whether it is an
Affiliate of Lender or an Eligible Lender under (
identify the qualifying clause
of the “Eligible Assignee” definition in the Credit Agreement).
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2
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List each Assignor, as appropriate.
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3
|
|
List each Assignee, as appropriate.
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4
|
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Set forth, to at least 9 decimals, as a
percentage of the Commitment/Advances of all Lenders thereunder.
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5
|
|
List each Assignor, as appropriate.
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6
|
|
List each Assignee, as appropriate.
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C-2
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Aggregate
|
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Amount of
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|
Percentage
|
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Amount of Revolving
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|
Revolving Credit
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Assigned of
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|
Credit Facility
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|
Facility Letter of
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|
Revolving Credit
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Letter of
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|
Credit
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Facility Letter of
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Credit
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Commitment/
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Credit
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Commitments/Advances
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|
|
Advances
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Commitment/
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|
Assignor[s]
5
|
|
Assignee[s]
6
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for all Lenders
|
|
Assigned
|
|
Advances
7
|
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$
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$
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%
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$
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$
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%
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$
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$
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%
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7
|
|
Set forth, to at least 9 decimals, as a
percentage of the Commitment/Advances of all Lenders thereunder.
|
C-3
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Amount of
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Percentage
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|
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Aggregate
|
|
|
Revolving Credit
|
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|
Assigned of
|
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|
|
|
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|
|
Amount of Revolving
|
|
|
Facility Swing
|
|
|
Revolving Credit
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|
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|
|
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|
Credit Facility Swing
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|
Line
|
|
|
Facility Swing
|
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Line
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|
Commitment/
|
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|
Line
|
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|
|
|
|
|
|
|
Commitments/Advances
|
|
|
Advances
|
|
|
Commitment/
|
|
|
Assignor[s]
8
|
|
Assignee[s]
9
|
|
|
for all Lenders
|
|
|
Assigned
|
|
|
Advances
10
|
|
|
|
|
|
|
|
|
$
|
|
|
|
$
|
|
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%
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$
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$
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%
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$
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$
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%
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Term Loan Facility
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Aggregate
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Amount of Term Loan
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Amount of Term
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Percentage
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Facility
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Loan Facility
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Assigned of Term
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Commitments/Advances
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Commitment/
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Loan Facility
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for
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Advances
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Commitment/
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Assignor[s]
11
|
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Assignee[s]
12
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all Lenders
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Assigned
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Advances
13
|
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$
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$
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%
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$
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$
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%
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Effective Date:
, 20___
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR].
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8
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|
List each Assignor, as appropriate.
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9
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|
List each Assignee, as appropriate.
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10
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|
Set forth, to at least 9 decimals.
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11
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|
List each Assignor, as appropriate.
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12
|
|
List each Assignee, as appropriate.
|
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13
|
|
Set forth, to at least 9 decimals, as a
percentage of the Commitment/Advances of all Lenders thereunder.
|
C-4
The terms set forth in this Assignment and Acceptance are hereby agreed to:
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Assignor[
s
]
:
[NAME OF ASSIGNOR]
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By:
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Name:
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Title:
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Assignee[
s
]
:
[NAME OF ASSIGNEE]
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By:
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Name:
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Title:
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C-5
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[Consented to and]
14
Accepted:
CITICORP USA, INC., as
Administrative Agent
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By:
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Name:
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Title:
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[Consented to and]
15
Accepted:
[NAME OF ISSUING BANK], as
Issuing Bank
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By:
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Name:
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Title:
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[Consented to:]
16
OXFORD MINING COMPANY, LLC
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By:
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By:
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Name:
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Title:
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ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE
|
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14
|
|
To be added only if the consent of the
Administrative Agent is required by the terms of Clause (a)(vii) or (b) of the
“Eligible Assignee” definition of the Credit Agreement.
|
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15
|
|
To be added only if the consent of the
Issuing Bank is required by the terms of Clause (b) of the “Eligible Assignee”
definition of the Credit Agreement.
|
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|
16
|
|
To be added only if the consent of the
Borrower is required by the terms of Clause (a)(vii) or (b) of the “Eligible
Assignee” definition of the Credit Agreement.
|
C-6
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ACCEPTANCE
1.
Representations and Warranties
.
1.1.
Assignor
.
[The][Each]
Assignor (a) represents and warrants that (i) it is the legal
and beneficial owner of
[the][[the relevant]
Assigned Interest, (ii)
[the][such]
Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Acceptance and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value, or perfection or priority of any Lien
created or purported to be created under or in connection with the Loan Documents or any collateral
thereunder, (iii) the financial condition of the General Partner, any Loan Party, their
Subsidiaries or Affiliates, or any other Person obligated in respect of any Loan Document or (iv)
the performance or observance by any Loan Party, any of their Subsidiaries or Affiliates, or any
other Person of any of their respective obligations under any Loan Document or other instrument or
document furnished pursuant hereto.
1.2.
Assignee
.
[The][Each]
Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Acceptance and to consummate the transactions contemplated hereby and to become a Lender or Issuing
Bank, as the case may be, under the Credit Agreement, (ii) it meets all the requirements to be an
Eligible Assignee or it is an Affiliate of a Lender under
Section 8.08(a)
of the Credit
Agreement (subject to such consents, if any, as may be required under the “Eligible Assignee”
definition in the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender or Issuing Bank, as the case may be, thereunder
and, to the extent of
[the][the relevant]
Assigned Interest, shall have the obligations of a Lender
or Issuing Bank, as the case may be, thereunder, (iv) it is sophisticated with respect to decisions
to acquire assets of the type represented by
[the][such]
Assigned Interest and either it, or the
Person exercising discretion in making its decision to acquire
[the][such]
Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to
Section 5.03
thereof, as applicable, and such
other documents and information as it deems appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance and to purchase
[the][such]
Assigned
Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any
Lender Party and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Assignment and Acceptance and to purchase
[the][such]
Assigned Interest, and (vii) if it is not incorporated under the laws of the United
States of America or any state thereof, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by
[the][such]
Assignee; and (b) agrees that (i) it will, independently and without reliance upon the
Administrative Agent,
[the][any]
Assignor or any other Lender
C-7
Party, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform
in accordance with their terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender or Issuing Bank, as the case may be.
2.
Payments
. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of
[the][each]
Assigned Interest (including payments of principal, interest,
fees and other amounts) to
[the][the relevant]
Assignor for amounts which have accrued to but
excluding the Effective Date and to
[the][the relevant]
Assignee for amounts which have accrued
from and after the Effective Date.
3.
General Provisions
. This Assignment and Acceptance shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns. This Assignment
and Acceptance may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the law of the State of New York.
C-8
EXHIBIT D-1
MLP GUARANTY
This
MLP GUARANTY
(this “
Guaranty
”), dated effective as of [___], 2010, is made by the
undersigned guarantor (the “
Guarantor
”) in favor of the Guaranteed Parties (as hereinafter
defined).
RECITALS:
A.
OXFORD MINING COMPANY, LLC
, an Ohio limited liability company (the “
Borrower
”), is a party
to the Credit Agreement, dated as of June [___________], 2010 (as amended, restated or otherwise modified
from time to time, the “
Credit Agreement
”), among the Borrower, the lenders from time to time party
thereto (the “
Lenders
”), and
CITICORP USA, INC.
as administrative agent for the Lenders (in such
capacity and together with its successors in such capacity, the “
Administrative Agent
”), pursuant
to which the Lenders have severally agreed to make loan advances to the Borrower, one of the
Lenders,
CITIBANK, N.A.
(the “
Swing Line Bank
”), has agreed to make loans in the form of Swing Line
Advances to the Borrower, and one of the Lenders,
FIFTH THIRD BANK
(the “
Issuing Bank
”), has agreed
to issue letters of credit for the account of the Borrower, all upon the terms and conditions set
forth therein. Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Credit Agreement.
B. As a condition precedent to the extensions of credit under the Credit Agreement, the
Lenders have required that the Guarantor execute and deliver this Guaranty in favor of the Lenders,
the Administrative Agent, the Swing Line Bank and the Issuing Bank (collectively, the “
Guaranteed
Parties
”).
C. The Guarantor will derive substantial direct and indirect benefit from the extensions of
credit under the Credit Agreement.
D. Accordingly, the Guarantor desires to execute this Guaranty in order to satisfy the
condition described above in
Recital B
.
AGREEMENT:
In consideration of the foregoing and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Guarantor hereby agrees as follows:
1. Guaranty.
(a) The Guarantor irrevocably and unconditionally guarantees the prompt payment when
due, whether at stated maturity, upon acceleration or otherwise, and at all times
thereafter, of all of the Guaranteed Obligations. As used herein, the term “
Guaranteed
Obligations
” means all of the Obligations.
D-1 - 1
(b) In addition to the Guaranteed Obligations, the Guarantor further agrees to
pay any and all reasonable costs and expenses (including reasonable fees and
disbursements of counsel) incurred by any Guaranteed Party in enforcing any rights under
this Guaranty, which agreement shall survive termination of this Guaranty.
(c) The Guarantor understands and confirms that the Guaranteed Parties may enforce this
Guaranty up to the full amount of the Guaranteed Obligations against the Guarantor without
proceeding against the Borrower or any other Person, against any security for the Guaranteed
Obligations, or under any other guaranty covering all or a portion of the Guaranteed
Obligations.
2.
No Release
.
The Guarantor agrees that the Guaranteed Obligations may be extended,
renewed or otherwise modified, in whole or in part, without any notice to or further assent from
it, and that the Guarantor shall remain bound by this Guaranty notwithstanding any extension,
renewal or other modification of any Guaranteed Obligation.
3.
Waivers of Certain Rights and Certain Defenses
.
The Guarantor waives to the
maximum extent permitted by applicable law:
(a) diligence and promptness in preserving liability of any Person on Guaranteed
Obligations, and in collecting or bringing suit to collect Guaranteed Obligations;
(b) each and every right to which it may be entitled by virtue of the suretyship laws
of the State of New York or any other state in which it may be located;
(c) presentment, demand for payment, notice of dishonor or nonpayment, protest and
notice of protest, or any other notice of any other kind with respect to the Guaranteed
Obligations; and
(d) notice of acceptance of this Guaranty, creation of the Guaranteed Obligations,
failure to pay the Guaranteed Obligations as they mature, any other default, adverse change
in the Borrower’s financial condition, release or substitution of collateral, subordination
of the Lenders’ rights in any other collateral, and every other notice of every kind.
No provision or waiver in this Guaranty shall be construed as limiting the generality of any
other waiver contained in this Guaranty.
4.
Obligations Absolute
.
To the extent permitted by law, the obligations of the
Guarantor are irrevocable and unconditional irrespective of the value, genuineness, validity,
regularity or enforceability of the Credit Agreement or any other agreement or instrument referred
to herein or therein, and, to the fullest extent permitted by applicable law, irrespective of any
counterclaim, set-off, deduction or any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor (other than payment
or performance of the Guaranteed Obligations), it being the intent of this Section that the
obligations of the Guarantor hereunder shall be irrevocable and unconditional as described above.
Without limiting the generality of the foregoing, to the extent permitted by law, it is
D-1 - 2
agreed that
the occurrence of any one or more of the following shall not alter or impair the
liability of the Guarantor hereunder which shall remain irrevocable and unconditional as
described above:
(a) lack of capacity of the Borrower;
(b) change in the manner, place or terms of payment of (including the currency
thereof), and/or change or extension of the time of payment of, or renewal or modification
of, any of the Guaranteed Obligations, any security or guarantee therefor, or any liability
incurred directly or indirectly in respect thereof;
provided,
that this Guaranty shall apply
to the Guaranteed Obligations as so changed, extended, renewed or modified;
(c) sale, exchange, release, surrender, realization upon, failure to perfect any Lien
or security interest in, or other alteration in any manner and in any order of any property
by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the
Guaranteed Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof and for offset there against;
(d) settlement or compromise of any of the Guaranteed Obligations, any security or
guarantee therefor or any liability (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, or subordination of the payment of all or any part
thereof to the payment of any liability (whether due or not) of the Borrower;
(e) actions or failures to act in any manner referred to in this Guaranty which may
deprive the Guarantor of its right to subrogation against the Borrower or any other Person
to recover full indemnity for any payments made pursuant to this Guaranty;
(f) failure of any Guaranteed Party to assert any claim or demand or to enforce any
right or remedy against the Borrower or the Guarantor or any successor thereto under the
provisions of the Credit Agreement, any other Loan Document or any other agreement or
otherwise; or
(g) rescission, waiver, extension, renewal, amendment or modification of any of the
terms or provisions of the Credit Agreement, any other Loan Document, any guarantee or any
instrument or agreement executed pursuant thereto.
5.
Guaranty of Payment and Performance
.
This Guaranty constitutes a guarantee of
payment and performance when due and not of collection and the Guarantor waives any right to
require that any resort be had by any Guaranteed Party to the Borrower, any other guarantor, any
property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the
Guaranteed Obligations or any balance of any deposit account or credit on the books of any
Guaranteed Party in favor of the Borrower or any other Person.
6.
Unenforceability of Obligations
.
The obligations of the Guarantor under this
Guaranty shall not be subject to any reduction, limitation, impairment or termination for any
reason (other than by indefeasible payment and performance in full of the Guaranteed Obligations
and termination of the Commitments under the Credit Agreement) and shall not be subject to any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason
D-1 - 3
of the invalidity,
illegality or unenforceability of any of the Guaranteed Obligations, discharge of
the Borrower or any other Person from any of the Guaranteed Obligations in a bankruptcy or
similar proceeding or otherwise (other than by indefeasible payment and performance in full of the
Guaranteed Obligations and termination of the Commitments under the Credit Agreement).
7.
Set-Off
.
In addition to any rights now or hereafter granted under applicable law
(including, without limitation, Section 151 of the New York Debtor and Creditor Law) and not by way
of limitation of any such rights, upon the occurrence of any Event of Default, the Guaranteed Party
is hereby authorized at any time or from time to time, without notice to the Guarantor or to any
other Person, any such notice being expressly waived to the extent permitted by applicable law, to
set off and to appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Guaranteed Party to or for the credit or the account
of the Guarantor, against and on account of the obligations and liabilities of the Guarantor to
such Guaranteed Party under this Guaranty, irrespective of whether or not such Guaranteed Party
shall have made any demand hereunder and although said obligations, liabilities, deposits or
claims, or any of them, shall be contingent or unmatured.
8.
Reinstatement
.
This Guaranty shall continue to be effective and, if cancelled or
otherwise terminated shall be reinstated, if at any time any payment, or any part thereof, of
principal of, interest on or any other amount with respect to any Guaranteed Obligation is
rescinded or must otherwise be restored by any Guaranteed Party or any other Person upon the
bankruptcy or reorganization of the Borrower or any other Person or otherwise. If claim is ever
made upon any Guaranteed Party for repayment or recovery of any amount or amounts received in
payment or on account of any of the Guaranteed Obligations and any of the Guaranteed Parties repays
all or part of said amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over such Guaranteed Party or any of its property or (b)
any settlement or compromise of any such claim effected by such Guaranteed Party with any such
claimant (including the Borrower), then and in such event the Guarantor agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon it, notwithstanding any
revocation, termination or cancellation hereof or of the Credit Agreement, any other Loan Document
or any other instrument evidencing any liability of the Borrower, and the Guarantor shall be and
remain liable to such Guaranteed Party hereunder for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by any such Guaranteed Party.
9.
No Subrogation
.
Notwithstanding any payment or payments by the Guarantor hereunder
or any set-off or application of funds of the Guarantor by any Guaranteed Party, the Guarantor
shall not be entitled to be subrogated to any of the rights of any Guaranteed Party against the
Borrower or any other Person or guarantee or right of offset held by any Guaranteed Party of the
payment of the Guaranteed Obligations, nor shall the Guarantor seek or be entitled to any
reimbursement or contribution from the Borrower, any other guarantor or any other Person in respect
of payments made by such Guarantor hereunder, until all amounts owing to the Guaranteed Parties by
the Borrower on account of the Guaranteed Obligations are indefeasibly paid in full in cash. If
any amount shall be paid to the Guarantor on account of the subrogation rights at any time when all
of the Guaranteed Obligations have not been indefeasibly paid in full in cash, such amount shall be
held by such Guarantor in trust for the Guaranteed Parties, segregated from other funds of the
Guarantor, and, immediately upon receipt by such Guarantor,
D-1 - 4
turned over to the Administrative Agent
in the exact form received by the Guarantor (duly
endorsed by the Guarantor to the Administrative Agent, if required), to be applied against the
Guaranteed Obligations, whether matured or unmatured, in such order as the Administrative Agent may
determine.
10.
Amendment and Waiver; Cumulative Remedies; Severability
.
No amendment,
modification, termination or waiver of any provision of this Guaranty, or consent to any departure
by the Guarantor herefrom, shall be effective without the written concurrence of the Required
Lenders under the Credit Agreement or as otherwise provided in the Credit Agreement including,
without limitation, Section 8.01 thereof. No failure by the Guaranteed Parties to exercise, and no
delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy or power hereunder preclude any other or
further exercise thereof or the exercise of any other right. No waiver of any breach or default
under this Guaranty shall be deemed a waiver of any other breach or default hereunder. The
remedies herein provided are cumulative and not exclusive of any remedies provided by law or in
equity. The unenforceability or invalidity of any provision of this Guaranty shall not affect the
enforceability or validity of any other provision herein.
11.
Notices
.
All notices and other communications provided for hereunder shall be
effectuated in the manner provided for in the Credit Agreement.
12.
Stay of Acceleration
.
In the event that acceleration of the time for payment of
any of the Guaranteed Obligations is stayed, upon the insolvency, bankruptcy or reorganization of
the Borrower or any other Person, or otherwise, all such amounts shall nonetheless be payable by
the Guarantor immediately upon demand by the Guaranteed Parties.
13.
Representations and Warranties
.
In order to induce the Lenders to make Revolving
Credit Advances and the Term Loan Advances, the Swing Line Bank to make Swing Line Advances and the
Issuing Bank to issue Letters of Credit pursuant to the Credit Agreement, the Guarantor warrants
and covenants that the value of the consideration received and to be received by the Guarantor is
reasonably worth at least as much as the liability and obligation of the Guarantor hereunder, and
such liability and obligation may reasonably be expected to benefit the Guarantor directly or
indirectly.
14.
Successors and Assigns
.
This Guaranty shall be binding upon the Guarantor and its
successors and assigns and shall inure to the benefit of the respective successors and assigns of
the Guaranteed Parties and, in the event of any transfer or assignment of rights by any Guaranteed
Party, the rights and privileges herein conferred upon that Guaranteed Party shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms and conditions
hereof,
provided
,
however
, that, except as expressly permitted under the Credit
Agreement, the Guarantor may not assign any of its rights or obligations hereunder without the
consent of the Lenders and any such assignment without such consent shall be void.
15.
GOVERNING LAW
. THIS GUARANTY IS ENTERED INTO PURSUANT TO SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW AND SHALL BE DEEMED TO BE MADE UNDER, SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS
D-1 - 5
OF THE STATE OF NEW YORK (WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW) AND APPLICABLE FEDERAL LAWS.
16.
CONSENT TO JURISDICTION
. EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES HEREBY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION
OF ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK
COUNTY, NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN ANY SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT
PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING, TO THE EXTENT PERMITTED BY LAW, SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. THE GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS
IN ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY COURT IN OR OF THE STATE OF NEW YORK BY THE
DELIVERY OF COPIES OF SUCH PROCESS TO IT AT AN ADDRESS THAT COMPLIES WITH THE TERMS OF
SECTION 11
OR BY CERTIFIED MAIL DIRECTED TO SUCH ADDRESS. NOTHING IN THIS SECTION SHALL
AFFECT THE RIGHT OF THE PARTIES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR LIMIT THE
RIGHT OF THE GUARANTEED PARTIES (OR ANY OF THEM) TO BRING ANY SUCH ACTION OR PROCEEDING AGAINST THE
GUARANTOR OR ANY OF THE GUARANTOR’S PROPERTY IN THE COURTS WITH SUBJECT MATTER JURISDICTION OF ANY
OTHER JURISDICTION. EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY IN
ANY NEW YORK STATE OR FEDERAL COURT. EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. EACH OF THE GUARANTEED PARTIES
AGREES TO THE PROVISIONS OF THIS SECTION BY THE ACCEPTANCE OF THIS GUARANTY.
17.
WAIVER OF JURY TRIAL
. THE GUARANTOR HEREBY WAIVES, TO THE FULLEST EXTENT NOT
PROHIBITED BY APPLICABLE LAW, ANY RIGHT IT
D-1 - 6
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY, THE CREDIT AGREEMENT
OR ANY OTHER LOAN DOCUMENT.
The Guarantor (a) certifies that no representative, agent or attorney
of any other party to the Loan Documents has represented, expressly or otherwise, that such other
party would not, in the event of litigation, seek to enforce the foregoing waiver and (b)
acknowledges that the Lenders and the other parties to the Loan Documents have been induced to
enter into the Loan Documents by, among other things, the foregoing waiver and certification.
18.
Release
.
This Guaranty is a continuing and irrevocable guaranty of all Guaranteed
Obligations now or hereafter existing and may be released only in accordance with Section 8.01 of
the Credit Agreement.
19.
Certain Provisions
.
For the avoidance of doubt, the limitation of the application
of certain terms and provisions contained herein to the Guarantor shall have no effect on the
representations, warranties, covenants, indemnities and other agreements of the Guarantor contained
in the Credit Agreement and the other Loan Documents. The representations, warranties, covenants,
indemnities and other agreements contained herein are in addition to, and not in lieu of, the
representations, warranties, covenants, indemnities and other agreements contained in the Credit
Agreement and the other Loan Documents.
20.
No Recourse to General Partner and Associated Persons
.
This Guaranty is given by
the Guarantor with the express understanding and limitation that neither the General Partner nor
any Associated Person of the General Partner, or any of their respective successors or assigns,
shall have any personal liability hereunder or otherwise for the payment or performance of any of
the Guaranteed Obligations and no monetary or other judgment shall be sought or enforced against
the General Partner or any of such Associated Persons or any of their respective successors or
assigns with respect thereto. Notwithstanding the foregoing, none of the Guaranteed Parties shall
be deemed barred by this Section from asserting any claim against any Person based upon an
allegation of fraud or misrepresentation.
21.
Counterparts
.
This Guaranty may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so executed and delivered
shall be an original, but all of which shall together constitute one and the same instrument. A
set of counterpart originals executed by all the parties shall be delivered to the Administrative
Agent, and a copy thereof shall be furnished to the Borrower or the Guarantor upon request
therefor.
22.
Security Documents
.
The obligations of the Guarantor are secured by the Security
Documents. The Guarantor shall comply with all terms and conditions of the Security Documents to
which the Guarantor is a party, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
D-1 - 7
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly executed to be effective as
of the day and year first above written.
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GUARANTOR:
OXFORD RESOURCE PARTNERS, LP, a
Delaware limited partnership
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By:
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Oxford Resources GP, LLC, a Delaware limited
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liability company, its general partner
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By:
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Name:
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D-1 - 8
EXHIBIT D-2
SUBSIDIARY GUARANTY
This
SUBSIDIARY GUARANTY
(this “
Guaranty
”), dated effective as of [
], 2010, is made by the
undersigned guarantors (each a “
Guarantor
” and collectively the “
Guarantors
”) in favor of the
Guaranteed Parties (as hereinafter defined).
RECITALS:
A.
OXFORD MINING COMPANY, LLC
, an Ohio limited liability company (the “
Borrower
”), is a party
to the Credit Agreement, dated as of June [___], 2010 (as amended, restated or otherwise modified
from time to time, the “
Credit Agreement
”), among the Borrower, the lenders from time to time party
thereto (the “
Lenders
”), and
CITICORP USA, INC.
as administrative agent for the Lenders (in such
capacity and together with its successors in such capacity, the “
Administrative Agent
”), pursuant
to which the Lenders have severally agreed to make loan advances to the Borrower, one of the
Lenders,
CITIBANK, N.A
. (the “
Swing Line Bank
”), has agreed to make loans in the form of Swing Line
Advances to the Borrower, and one of the Lenders,
FIFTH THIRD BANK
(the “
Issuing Bank
”), has agreed
to issue letters of credit for the account of, the Borrower, all upon the terms and conditions set
forth therein. Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Credit Agreement.
B. As a condition precedent to the extensions of credit under the Credit Agreement, the
Lenders have required that the Guarantors execute and deliver this Guaranty in favor of the
Lenders, the Administrative Agent, the Swing Line Bank and the Issuing Bank (collectively, the
“
Guaranteed Parties
”).
C. Each Guarantor will derive substantial direct and indirect benefit from the extensions of
credit under the Credit Agreement.
D. Accordingly, each Guarantor desires to execute this Guaranty in order to satisfy the
condition described above in
Recital B
.
AGREEMENT:
In consideration of the foregoing and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, each Guarantor hereby, jointly and severally, agrees as
follows:
1. Guaranty.
(a) Each Guarantor irrevocably and unconditionally, both jointly and severally,
guarantees the prompt payment when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, of all of the Guaranteed Obligations. As used
herein, the term “
Guaranteed Obligations
” means all of the Obligations.
D-2 - 1
(b) In addition to the Guaranteed Obligations, each Guarantor, jointly and severally,
further agrees to pay any and all reasonable costs and expenses (including reasonable fees
and disbursements of counsel) incurred by any Guaranteed Party in enforcing any rights under
this Guaranty, which agreement shall survive termination of this Guaranty.
(c) Each Guarantor understands and confirms that the Guaranteed Parties may enforce
this Guaranty up to the full amount of the Guaranteed Obligations against any Guarantor
without proceeding against the Borrower or any other Person, against any security for the
Guaranteed Obligations, or under any other guaranty covering all or a portion of the
Guaranteed Obligations.
(d) Notwithstanding anything in this Guaranty to the contrary, the obligations of each
Guarantor under this Guaranty shall be limited to a maximum aggregate amount equal to the
largest amount that would not render such Guarantor’s obligations hereunder subject to
avoidance as a fraudulent transfer or fraudulent conveyance under Section 548 of Title 11 of
the United States Code or any applicable provisions of comparable state law (collectively,
the “
Fraudulent Transfer Laws
”), in each case after giving effect to all other liabilities
of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer
Laws (specifically excluding, however, any liabilities of such Guarantor in respect of
intercompany Debt to the Borrower or any Subsidiary or Affiliate of the Borrower to the
extent that such Debt would be discharged in an amount equal to the amount paid by such
Guarantor hereunder) and after giving effect, as assets, to the value (as determined under
the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
reimbursement or contribution of such Guarantor pursuant to (i) applicable law or (ii) any
agreement providing for rights of subrogation, reimbursement or contribution in favor of
such Guarantor, or for an equitable allocation among such Guarantor, the Borrower and/or any
other Person of obligations arising under guaranties by such Persons.
2.
No Release
. Each Guarantor agrees that the Guaranteed Obligations may be
extended, renewed or otherwise modified, in whole or in part, without any notice to or
further assent from it, and that such Guarantor shall remain bound by this Guaranty
notwithstanding any extension, renewal or other modification of any Guaranteed Obligation.
3.
Waivers of Certain Rights and Certain Defenses
. Each Guarantor waives to
the maximum extent permitted by applicable law:
(a) diligence and promptness in preserving liability of any Person on Guaranteed
Obligations, and in collecting or bringing suit to collect Guaranteed Obligations;
(b) each and every right to which it may be entitled by virtue of the suretyship laws
of the State of New York or any other state in which it may be located;
D-2 - 2
(c) presentment, demand for payment, notice of dishonor or nonpayment,
protest and notice of protest, or any other notice of any other kind with respect to
the Guaranteed Obligations; and
(d) notice of acceptance of this Guaranty, creation of the Guaranteed Obligations,
failure to pay the Guaranteed Obligations as they mature, any other default, adverse change
in the Borrower’s financial condition, release or substitution of collateral, subordination
of the Lenders’ rights in any other collateral, and every other notice of every kind.
No provision or waiver in this Guaranty shall be construed as limiting the generality of any
other waiver contained in this Guaranty.
4.
Obligations Absolute
. To the extent permitted by law, the obligations of each
Guarantor are irrevocable and unconditional irrespective of the value, genuineness, validity,
regularity or enforceability of the Credit Agreement or any other agreement or instrument referred
to herein or therein, and, to the fullest extent permitted by applicable law, irrespective of any
counterclaim, set-off, deduction or any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor (other than payment
or performance of the Guaranteed Obligations), it being the intent of this Section that the
obligations of each Guarantor hereunder shall be irrevocable and unconditional as described above.
Without limiting the generality of the foregoing, to the extent permitted by law, it is agreed that
the occurrence of any one or more of the following shall not alter or impair the liability of each
Guarantor hereunder which shall remain irrevocable and unconditional as described above:
(a) lack of capacity of the Borrower;
(b) change in the manner, place or terms of payment of (including the currency
thereof), and/or change or extension of the time of payment of, or renewal or modification
of, any of the Guaranteed Obligations, any security or guarantee therefor, or any liability
incurred directly or indirectly in respect thereof;
provided,
that this Guaranty shall apply
to the Guaranteed Obligations as so changed, extended, renewed or modified;
(c) sale, exchange, release, surrender, realization upon, failure to perfect any Lien
or security interest in, or other alteration in any manner and in any order of any property
by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the
Guaranteed Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof and for offset there against;
(d) settlement or compromise of any of the Guaranteed Obligations, any security or
guarantee therefor or any liability (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, or subordination of the payment of all or any part
thereof to the payment of any liability (whether due or not) of the Borrower;
(e) actions or failures to act in any manner referred to in this Guaranty which may
deprive such Guarantor of its right to subrogation against the Borrower or any other Person
to recover full indemnity for any payments made pursuant to this Guaranty;
D-2 - 3
(f) failure of any Guaranteed Party to assert any claim or demand or to enforce any
right or remedy against the Borrower or any Guarantor or any successor thereto under the
provisions of the Credit Agreement, any other Loan Document or any other agreement or
otherwise; or
(g) rescission, waiver, extension, renewal, amendment or modification of any of the
terms or provisions of the Credit Agreement, any other Loan Document, any guarantee or any
instrument or agreement executed pursuant thereto.
5.
Guaranty of Payment and Performance
.
This Guaranty constitutes a guarantee of
payment and performance when due and not of collection and each Guarantor waives any right to
require that any resort be had by any Guaranteed Party to the Borrower, any other guarantor, any
property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the
Guaranteed Obligations or any balance of any deposit account or credit on the books of any
Guaranteed Party in favor of the Borrower or any other Person.
6.
Unenforceability of Obligations
.
The obligations of each Guarantor under this
Guaranty shall not be subject to any reduction, limitation, impairment or termination for any
reason (other than by indefeasible payment and performance in full of the Guaranteed Obligations
and termination of the Commitments under the Credit Agreement, and except as limited in
Section
1(d)
of this Guaranty) and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of
any of the Guaranteed Obligations, discharge of the Borrower or any other Person from any of the
Guaranteed Obligations in a bankruptcy or similar proceeding or otherwise (other than by
indefeasible payment and performance in full of the Guaranteed Obligations and termination of the
Commitments under the Credit Agreement, and except as limited in
Section 1(d)
of this
Guaranty).
7.
Set-Off
.
In addition to any rights now or hereafter granted under applicable law
(including, without limitation, Section 151 of the New York Debtor and Creditor Law) and not by way
of limitation of any such rights, upon the occurrence of any Event of Default, each Guaranteed
Party is hereby authorized at any time or from time to time, without notice to any Guarantor or to
any other Person, any such notice being expressly waived, to the extent permitted by applicable
law, to set off and to appropriate and apply any and all deposits (general or special) and any
other indebtedness at any time held or owing by such Guaranteed Party to or for the credit or the
account of any Guarantor, against and on account of the obligations and liabilities of such
Guarantor to such Guaranteed Party under this Guaranty, irrespective of whether or not such
Guaranteed Party shall have made any demand hereunder and although said obligations, liabilities,
deposits or claims, or any of them, shall be contingent or unmatured.
8.
Reinstatement
.
This Guaranty shall continue to be effective and, if cancelled or
otherwise terminated shall be reinstated, if at any time any payment, or any part thereof, of
principal of, interest on or any other amount with respect to any Guaranteed Obligation is
rescinded or must otherwise be restored by any Guaranteed Party or any other Person upon the
bankruptcy or reorganization of the Borrower or any other Person or otherwise. If claim is ever
made upon any Guaranteed Party for repayment or recovery of any amount or amounts received in
payment or on account of any of the Guaranteed Obligations and any of the Guaranteed
D-2 - 4
Parties repays all or part of said amount by reason of (a) any judgment, decree or order of
any court or administrative body having jurisdiction over such Guaranteed Party or any of its
property, or (b) any settlement or compromise of any such claim effected by such Guaranteed Party
with any such claimant (including the Borrower), then and in such event each Guarantor jointly and
severally agrees that any such judgment, decree, order, settlement or compromise shall be binding
upon it, notwithstanding any revocation, termination or cancellation hereof or of the Credit
Agreement, any other Loan Document or any other instrument evidencing any liability of the
Borrower, and such Guarantor shall be and remain liable to such Guaranteed Party hereunder for the
amount so repaid or recovered to the same extent as if such amount had never originally been
received by any such Guaranteed Party.
9.
No Subrogation
.
Notwithstanding any payment or payments by any Guarantor hereunder
or any set-off or application of funds of any Guarantor by any Guaranteed Party, no Guarantor shall
be entitled to be subrogated to any of the rights of any Guaranteed Party against the Borrower or
any other Person or guarantee or right of offset held by any Guaranteed Party of the payment of the
Guaranteed Obligations, nor shall any Guarantor seek or be entitled to any reimbursement or
contribution from the Borrower, any other Guarantor or any other Person in respect of payments made
by such Guarantor hereunder, until all amounts owing to the Guaranteed Parties by the Borrower on
account of the Guaranteed Obligations are indefeasibly paid in full in cash. If any amount shall
be paid to any Guarantor on account of the subrogation rights at any time when all of the
Guaranteed Obligations have not been indefeasibly paid in full in cash, such amount shall be held
by such Guarantor in trust for the Guaranteed Parties, segregated from other funds of such
Guarantor, and shall, immediately upon receipt by such Guarantor, be turned over to the
Administrative Agent in the exact form received by such Guarantor (duly endorsed by such Guarantor
to the Administrative Agent, if required), to be applied against the Guaranteed Obligations,
whether matured or unmatured, in such order as the Administrative Agent may determine.
10.
Amendment and Waiver; Cumulative Remedies; Severability
.
No amendment,
modification, termination or waiver of any provision of this Guaranty, or consent to any departure
by any Guarantor herefrom, shall be effective without the written concurrence of the Required
Lenders under the Credit Agreement or as otherwise provided in the Credit Agreement including,
without limitation, Section 8.01 thereof. No failure by the Guaranteed Parties to exercise, and no
delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy or power hereunder preclude any other or
further exercise thereof or the exercise of any other right. No waiver of any breach or default
under this Guaranty shall be deemed a waiver of any other breach or default hereunder. The
remedies herein provided are cumulative and not exclusive of any remedies provided by law or in
equity. The unenforceability or invalidity of any provision of this Guaranty shall not affect the
enforceability or validity of any other provision herein.
11.
Notices
.
All notices and other communications provided for hereunder shall be
effectuated in the manner provided for in the Credit Agreement.
12.
Stay of Acceleration
.
In the event that acceleration of the time for payment of
any of the Guaranteed Obligations is stayed, upon the insolvency, bankruptcy or reorganization
D-2 - 5
of the Borrower or any other Person, or otherwise, all such amounts shall nonetheless be payable
by the Guarantor immediately upon demand by the Guaranteed Parties.
13.
Representations and Warranties
.
In order to induce the Lenders to make Revolving
Credit Advances and the Term Loan Advances, the Swing Line Bank to make Swing Line Advances and the
Issuing Bank to issue Letters of Credit pursuant to the Credit Agreement, each Guarantor warrants
and covenants that the value of the consideration received and to be received by such Guarantor is
reasonably worth at least as much as the liability and obligation of such Guarantor hereunder, and
such liability and obligation may reasonably be expected to benefit such Guarantor directly or
indirectly.
14.
Successors and Assigns
.
This Guaranty shall be binding upon each Guarantor and
its successors and assigns and shall inure to the benefit of the respective successors and assigns
of the Guaranteed Parties and, in the event of any transfer or assignment of rights by any
Guaranteed Party, the rights and privileges herein conferred upon that Guaranteed Party shall
automatically extend to and be vested in such transferee or assignee, all subject to the terms and
conditions hereof,
provided
,
however
, that, except as expressly permitted under the
Credit Agreement, no Guarantor may assign any of its rights or obligations hereunder without the
consent of the Lenders and any such assignment without such consent shall be void.
15.
GOVERNING LAW
. THIS GUARANTY IS ENTERED INTO PURSUANT TO SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW AND SHALL BE DEEMED TO BE MADE UNDER, SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW) AND APPLICABLE FEDERAL LAWS.
16.
CONSENT TO JURISDICTION
. EACH GUARANTOR AND EACH OF THE GUARANTEED PARTIES HEREBY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION
OF ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK
COUNTY, NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH GUARANTOR AND EACH OF THE GUARANTEED PARTIES
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN ANY SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT
PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH GUARANTOR AND EACH OF THE GUARANTEED PARTIES AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING, TO THE EXTENT PERMITTED BY LAW, SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. EACH GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS
IN ANY SUCH ACTION OR
D-2 - 6
PROCEEDING BROUGHT IN ANY COURT IN OR OF THE STATE OF NEW YORK
BY THE DELIVERY OF COPIES OF SUCH PROCESS TO IT AT AN ADDRESS THAT COMPLIES WITH THE TERMS OF
SECTION 11
OR BY CERTIFIED MAIL DIRECTED TO SUCH ADDRESS. NOTHING IN THIS SECTION SHALL
AFFECT THE RIGHT OF THE PARTIES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR LIMIT THE
RIGHT OF THE GUARANTEED PARTIES (OR ANY OF THEM) TO BRING ANY SUCH ACTION OR PROCEEDING AGAINST ANY
GUARANTOR OR ANY OF SUCH GUARANTOR’S PROPERTY IN THE COURTS WITH SUBJECT MATTER JURISDICTION OF ANY
OTHER JURISDICTION. EACH GUARANTOR AND EACH OF THE GUARANTEED PARTIES IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY IN
ANY NEW YORK STATE OR FEDERAL COURT. EACH GUARANTOR AND EACH OF THE GUARANTEED PARTIES HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. EACH OF THE GUARANTEED PARTIES
AGREES TO THE PROVISIONS OF THIS SECTION BY THE ACCEPTANCE OF THIS GUARANTY.
17.
WAIVER OF JURY TRIAL
. EACH GUARANTOR HEREBY WAIVES, TO THE FULLEST EXTENT NOT
PROHIBITED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY, THE CREDIT
AGREEMENT OR ANY OTHER LOAN DOCUMENT.
Each Guarantor (a) certifies that no representative, agent
or attorney of any other party to the Loan Documents has represented, expressly or otherwise, that
such other party would not, in the event of litigation, seek to enforce the foregoing waiver and
(b) acknowledges that the Lenders and the other parties to the Loan Documents have been induced to
enter into the Loan Documents by, among other things, the foregoing waiver and certification.
18.
Release
.
This Guaranty is a continuing and irrevocable guaranty of all Guaranteed
Obligations now or hereafter existing and may be released only in accordance with Section 8.01 of
the Credit Agreement.
19.
Certain Provisions
.
For the avoidance of doubt, the limitation of the application
of certain terms and provisions contained herein to each Guarantor shall have no effect on the
representations, warranties, covenants, indemnities and other agreements of each Guarantor
contained in the Credit Agreement and the other Loan Documents. The representations, warranties,
covenants, indemnities and other agreements contained herein are in addition to, and not in lieu
of, the representations, warranties, covenants, indemnities and other agreements contained in the
Credit Agreement and the other Loan Documents.
D-2 - 7
20.
Counterparts
.
This Guaranty may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one and the same
instrument. A set of counterpart originals executed by all the parties shall be delivered to the
Administrative Agent, and a copy thereof shall be furnished to the Borrower or any Guarantor upon
request therefor.
21.
Security Documents
.
The obligations of each Guarantor are secured by the Security
Documents. Each Guarantor shall comply with all terms and conditions of the Security Documents to
which such Guarantor is a party, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
[Signature Page to Follow]
D-2 - 8
IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be duly executed to be effective
as of the day and year first above written.
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GUARANTORS:
OXFORD MINING COMPANY — KENTUCKY, LLC,
a Kentucky limited liability company
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By:
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Name:
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Title:
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DARON COAL COMPANY, LLC,
an Ohio limited liability company
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By:
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D-2 - 9
EXHIBIT E
SOLVENCY CERTIFICATE
[
], 2010
This Solvency Certificate is furnished pursuant to Section 3.01(a)(x) of that certain Credit
Agreement, dated as of June [_], 2010 (as amended, restated, or otherwise modified from time to
time, the “
Credit Agreement
”), among
OXFORD MINING COMPANY, LLC
, an Ohio limited liability company
as the Borrower, the lenders from time to time party thereto (the “
Lenders
”), and
CITICORP USA,
INC.
as administrative agent for the Lenders (in such capacity and together with its successors in
such capacity, the “
Administrative Agent
”). Capitalized terms used and not otherwise defined
herein shall have the same meanings as are assigned to such terms in the Credit Agreement.
The undersigned hereby certifies that, on the Effective Date, and both before and after giving
effect to the Transaction, the Loan Parties (on a consolidated basis in accordance with GAAP) are
Solvent. As used herein, the term “Solvent” means, with respect to the Loan Parties, that (a) the
fair value of the property of the Loan Parties is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of the Loan Parties, (b) the present fair
salable value of the assets of the Loan Parties is not less than the amount that will be required
to pay the probable liability of the Loan Parties on their debts as they become absolute and
matured, (c) the Loan Parties do not intend to, and do not believe that they will, incur debts or
liabilities beyond the Loan Parties’ ability to pay such debts and liabilities as they mature and
(d) the Loan Parties are not engaged in business or a transaction, and are not about to engage in
business or a transaction, for which the Loan Parties’ property would constitute an unreasonably
small capital. The amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing on the Effective Date, represents
the amount that can reasonably be expected to become an actual or matured liability.
The Administrative Agent and the Lender Parties shall be entitled to rely on the statements
contained in this Certificate.
[Signature page follows]
E-1
IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate effective as of the
date first set forth above.
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Name:
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Title:
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Chief Financial Officer of Oxford Resources GP,
LLC, a Delaware limited liability company and the
general partner of Oxford Resource Partners, LP, a
Delaware limited partnership
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E-2
EXHIBIT F
COMPLIANCE CERTIFICATE
The undersigned hereby certifies that [he] [she] is the
[title of Responsible Officer]
of
Oxford Resources GP, LLC, a Delaware limited liability company and the general partner of Oxford
Resource Partners, LP, a Delaware limited partnership, and that as such [he] [she] is authorized to
execute this Compliance Certificate.
With reference to the Credit Agreement (as amended, restated, or otherwise modified from time
to time, the “
Credit Agreement
”), dated as of June [___], 2010, among Oxford Mining Company, LLC, an
Ohio limited liability company (the “
Borrower
”), the lenders from time to time party thereto (the
“
Lenders
”), and Citicorp USA, Inc., as administrative agent for the Lenders (in such capacity and
together with its successors in such capacity, the “
Administrative Agent
”), the undersigned
represents and warrants as follows (with each capitalized term used and not otherwise defined
herein having the same meaning as is assigned to such term in the Credit Agreement):
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(a)
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The representations and warranties of each Loan Party made on behalf of itself
and each of its Subsidiaries contained in
Article IV
of the Credit Agreement
and in each Loan Documents were correct on and as of the date when made, and are
repeated at and as of the time of delivery hereof and are correct at and as of the time
of such delivery, except for such representations and warranties that, as by their
terms, refer to an earlier date, and then in such case as of such earlier date.
|
|
|
|
|
(b)
|
|
No Default or Event of Default has occurred or is continuing.
|
|
|
|
|
(c)
|
|
The MLP is in compliance with the financial covenants contained in
Section
5.04
of the Credit Agreement (the “
Financial Covenants
”). Calculations
demonstrating compliance with the Financial Covenants contained in
Section 5.04
of the Credit Agreement are set forth in the Schedule Demonstrating Financial Covenants
Compliance attached hereto as
Schedule A
.
|
|
|
|
|
(d)
|
|
Except as set forth on the Schedule of GAAP Changes attached hereto as
Schedule B
, there have been no changes in GAAP or in the application thereof,
as used in the preparation of the Consolidated financial statements of the MLP and its
Subsidiaries, since the date of the most recent audited financial statements provided
to the Lender Parties pursuant to Section 5.03(b) of the Credit Agreement.
|
F-1
IN WITNESS WHEREOF, this Compliance Certificate is executed as of the date set forth below.
|
|
|
|
|
|
|
|
|
|
|
Date:
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
____________ of Oxford Resources GP, LLC, a
Delaware limited liability company and the general
partner of Oxford Resource Partners, LP, a Delaware
limited partnership
|
|
F-2
SCHEDULE A TO COMPLIANCE CERTIFICATE
**SCHEDULE DEMONSTRATING FINANCIAL COVENANTS COMPLIANCE**
|
•
|
|
Leverage Ratio Financial Covenant: As reflected by the calculations in the attached
Schedule A-1, the MLP is in compliance with the Leverage Ratio Financial Covenant set forth
in Section 5.04(a) of the Credit Agreement.
|
|
|
|
•
|
|
Interest Coverage Ratio Financial Covenant: As reflected by the calculations in the
attached Schedule A-2, the MLP is in compliance with the Interest Coverage Ratio Financial
Covenant set forth in Section 5.04(b) of the Credit Agreement.
|
|
|
|
•
|
|
Maximum Capital Expenditures Financial Covenant: As reflected by the calculations in
the attached Schedule A-3, the MLP is in compliance with the maximum Capital Expenditures
Financial Covenant set forth in Section 5.04(c) of the Credit Agreement.
|
|
|
|
•
|
|
Pertinent Information and Calculations: Pertinent information and calculations used in
demonstrating compliance with the Financial Covenants as stated above is set forth in the
attached Schedule A-4 (Part 1- Part 6).
|
F-3
SCHEDULE B TO COMPLIANCE CERTIFICATE
**SCHEDULE OF GAAP CHANGES**
F-4
Oxford Mining Company, LLC
(
as Borrower
)
Schedules to Credit Agreement
Schedule I
Lending Office and
Commitment Information
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revolving Credit
|
|
|
|
|
|
Letter of Credit
|
|
Swing Line
|
|
Domestic Lending
|
|
|
|
Name of Initial Lender
|
|
Commitment
|
|
Term Loan Commitment
|
|
Commitment
|
|
Commitment
|
|
Office
|
|
Eurodollar Lending Office
|
|
Citibank, N.A.
|
|
$
|
10,500,000.00
|
|
|
$
|
10,500,000.00
|
|
|
$
|
1,826,086.96
|
|
|
$
|
684,782.61
|
|
|
399 Park Avenue
New York, NY 10043
|
|
399 Park Avenue
New York, NY 10043
|
|
Barclays Bank PLC
|
|
$
|
19,500,000.00
|
|
|
$
|
1,500,000.00
|
|
|
$
|
3,391,304.35
|
|
|
$
|
1,271,739.13
|
|
|
745 7th Avenue
New York, NY 10019
|
|
745 7th Avenue
New York, NY 10019
|
|
Huntington National Bank
|
|
$
|
13,800,000.00
|
|
|
$
|
7,200,000.00
|
|
|
$
|
2,400,000.00
|
|
|
$
|
900,000.00
|
|
|
41 South High Street
Columbus, OH 43215
|
|
41 South High Street
Columbus, OH 43215
|
|
Fifth Third Bank
|
|
$
|
13,800,000.00
|
|
|
$
|
7,200,000.00
|
|
|
$
|
2,400,000.00
|
|
|
$
|
900,000.00
|
|
|
38 Fountain Square Plaza
MD 10AT63
Cincinnati, OH 45263
|
|
38 Fountain Square Plaza
MD 10AT63
Cincinnati, OH 45263
|
|
Comerica Bank
|
|
$
|
13,800,000.00
|
|
|
$
|
7,200,000.00
|
|
|
$
|
2,400,000.00
|
|
|
$
|
900,000.00
|
|
|
2 Embarcadero Ctr #300
San Francisco, CA 94111
|
|
2 Embarcadero Ctr #300
San Francisco, CA 94111
|
|
Caterpillar Financial Services Corporation
|
|
$
|
9,428,571.43
|
|
|
$
|
8,571,428.57
|
|
|
$
|
1,639,751.55
|
|
|
$
|
614,906.83
|
|
|
2120 West End Avenue
Nashville, TN 37203
|
|
2120 West End Avenue
Nashville, TN 37203
|
|
Société Générale
|
|
$
|
8,542,857.14
|
|
|
$
|
4,457,142.86
|
|
|
$
|
1,485,714.29
|
|
|
$
|
557,142.86
|
|
|
1221 Avenue of the
Americas
New York, NY 10020
|
|
1221 Avenue of the Americas
New York, NY 10020
|
|
Credit Suisse AG, Cayman Islands Branch
|
|
$
|
8,542,857.14
|
|
|
$
|
4,457,142.86
|
|
|
$
|
1,485,714.29
|
|
|
$
|
557,142.86
|
|
|
Eleven Madison Avenue
New York, NY 10010
|
|
Eleven Madison Avenue
New York, NY 10010
|
|
Wells Fargo Bank, N.A.
|
|
$
|
8,542,857.14
|
|
|
$
|
4,457,142.86
|
|
|
$
|
1,485,714.29
|
|
|
$
|
557,142.86
|
|
|
201 S. Jefferson St.
Roanoke, VA 24011
|
|
201 S. Jefferson St.
Roanoke, VA 24011
|
|
Raymond James Bank, FSB
|
|
$
|
8,542,857.14
|
|
|
$
|
4,457,142.86
|
|
|
$
|
1,485,714.29
|
|
|
$
|
557,142.86
|
|
|
710 Carillon Parkway
St. Petersburg, FL 33716
|
|
710 Carillon Parkway
St. Petersburg, FL 33716
|
|
Total
|
|
$
|
115,000,000
|
|
|
$
|
60,000,000
|
|
|
$
|
20,000,000
|
|
|
$
|
7,500,000
|
|
|
|
|
|
Schedule II
Subsidiary Guarantors
Subsidiary Guarantors
|
1.
|
|
Oxford Mining Company — Kentucky, LLC
|
|
|
|
2.
|
|
Daron Coal Company, LLC
|
Schedule 2.03(f)
Existing Letters of Credit
Oxford Mining Company, LLC Letters of Credit
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuing Bank
|
|
Beneficiary
|
|
Amount
|
|
Effective Date
|
|
Letter of Credit
|
|
Fifth Third Bank
|
|
RLI Insurance
|
|
$
|
75,000
|
|
|
8/25/2008
|
|
|
|
Fifth Third Bank
|
|
Argonaut Insurance Co.
|
|
|
2,500,000
|
|
|
9/30/2009
|
|
S409447
|
|
Fifth Third Bank
|
|
Travelers Casualty and Surety Company of America
|
|
|
3,750,000
|
|
|
11/3/2009
|
|
S409532
|
|
Fifth Third Bank
|
|
Republic Bank, Inc.*
|
|
|
1,320,000
|
|
|
11/3/2009
|
|
S409506
|
|
Fifth Third Bank
|
|
Argonaut Insurance Co.
|
|
|
600,000
|
|
|
3/12/2010
|
|
S500148
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
8,245,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
With equipment leases being bought-out at closing, this letter of credit will not need to be
renewed.
|
Schedule 4.01(a)
Capital Stock of Oxford Mining Company, LLC
|
|
|
|
|
|
|
|
|
|
|
Percentage of
|
|
Owner
|
|
Number of Units Owned
|
|
Outstanding Units
|
|
Oxford Resource Partners, LP
|
|
100
|
|
100%
|
|
|
|
|
|
|
|
Total Outstanding Units
|
|
100
|
|
100%
|
|
|
|
|
|
|
Schedule 4.01(b)
Loan Party Subsidiaries
Oxford Resource Partners, LP Subsidiaries
|
|
|
|
|
|
|
|
|
|
|
Number of Authorized
|
|
Number of Outstanding
|
|
Percentage of Units/Shares
|
|
Loan Party Subsidiary
|
|
Units/Shares
|
|
Units/Shares
|
|
Owned by Loan Party
|
|
Oxford Mining Company, LLC
|
|
100
|
|
100
|
|
100%
|
Oxford Mining Company, LLC Subsidiaries
|
|
|
|
|
|
|
|
|
|
|
Number of Authorized
|
|
Number of Outstanding
|
|
Percentage of Units/Shares
|
|
Loan Party Subsidiary
|
|
Units/Shares
|
|
Units/Shares
|
|
Owned by Loan Party
|
|
Oxford Mining Company
- Kentucky, LLC
|
|
100
|
|
100
|
|
100%
|
|
Daron Coal Company, LLC
|
|
100
|
|
100
|
|
100%
|
|
Harrison Resources, LLC
|
|
*
|
|
*
|
|
51%
|
|
|
|
|
|
NOTE:
|
|
There are no outstanding options, warrants, rights of conversion or purchase or other
similar rights for any of the above-listed subsidiaries.
|
|
|
|
*
|
|
A member’s interest in Harrison Resources, LLC is not represented by units or
shares; and instead is represented simply by the member’s percentage membership
interest as reflected in the Harrison Resources, LLC Operating
Agreement.
|
Schedule 4.01(d)
Authorization, Approval, Action,
Notice and Filing Requirements
The notices and consents set forth on Schedule
5.01(p).
Schedule 4.01(f)
Litigation
Schedule 4.01(n)
Plans and Multiemployer Plans
Employee Benefit Plans
|
1.
|
|
Oxford Retirement Plan
|
|
|
|
2.
|
|
Oxford Resource Partners, LP Long-Term Incentive Plan
|
|
|
|
3.
|
|
Oxford Mining Employee Group Benefit Plan (providing medical, dental,
vision, life and short-term disability benefits for employees and their
eligible dependents)
|
|
|
|
4.
|
|
Oxford Mining Company, LLC Premium Only Plan (Cafeteria Plan)
|
Schedule 4.01(o)
Environmental Matters
Part I
None.
Part II
1. Fuel Storage Tanks (Ohio).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Off Road
|
|
On Road
|
|
Gas Tank
|
|
Location
|
|
Capacity
|
|
Tank No.
|
|
Tank No.
|
|
No.
|
|
Adamsville
|
|
8000
|
|
0144
|
|
|
|
|
|
|
|
2000
|
|
|
|
3201
|
|
|
|
|
|
250
|
|
|
|
|
|
3202
|
|
|
|
10000
|
|
7333
|
|
|
|
|
|
|
|
2000
|
|
Tr. 9788
|
|
|
|
|
|
Barb Tipple
|
|
20000
|
|
|
|
BT-4105
|
|
|
|
|
|
20000
|
|
|
|
BT-4106
|
|
|
|
|
|
3000
|
|
4102
|
|
|
|
|
|
|
|
400
|
|
|
|
4103
|
|
|
|
|
|
10000
|
|
7382
|
|
|
|
|
|
|
|
400
|
|
|
|
|
|
7920
|
|
|
|
1000
|
|
J Brown
|
|
|
|
|
|
|
|
2000
|
|
0083
|
|
|
|
|
|
Beagle Club
|
|
9000
|
|
7301
|
|
|
|
|
|
|
|
500
|
|
|
|
7304
|
|
|
|
|
|
250
|
|
|
|
|
|
7303
|
|
|
|
3000
|
|
Tk. 9815
|
|
|
|
|
|
Bellaire Dock
|
|
10000
|
|
4101
|
|
|
|
|
|
|
|
10000
|
|
|
|
BD-8001
|
|
|
|
|
|
150
|
|
|
|
|
|
8003
|
|
Boswell
|
|
10000
|
|
262
|
|
|
|
|
|
|
|
10000
|
|
363
|
|
|
|
|
|
|
|
15000
|
|
376
|
|
|
|
|
|
|
|
3000
|
|
|
|
7458
|
|
|
|
|
|
500
|
|
|
|
|
|
8201
|
|
|
|
2000
|
|
Tk. 9796
|
|
|
|
|
|
Chumney
|
|
10000
|
|
7395
|
|
|
|
|
|
|
|
12000
|
|
3401
|
|
|
|
|
|
|
|
1000
|
|
Tk. 9812
|
|
|
|
|
|
|
|
1000
|
|
|
|
3403
|
|
|
|
|
|
500
|
|
|
|
|
|
3404
|
|
Co. Rd. 7
|
|
300
|
|
6001
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Off Road
|
|
On Road
|
|
Gas Tank
|
|
Location
|
|
Capacity
|
|
Tank No.
|
|
Tank No.
|
|
No.
|
|
Co. Rd. 29
|
|
10000
|
|
2356
|
|
|
|
|
|
|
|
10000
|
|
7331
|
|
|
|
|
|
|
|
2000
|
|
303
|
|
|
|
|
|
|
|
1500
|
|
Tr. 9759
|
|
|
|
|
|
Daron
|
|
10000
|
|
16
|
|
|
|
|
|
|
|
22000
|
|
|
|
25
|
|
|
|
|
|
22000
|
|
26
|
|
|
|
|
|
|
|
22000
|
|
27
|
|
|
|
|
|
|
|
22000
|
|
28
|
|
|
|
|
|
|
|
22000
|
|
29
|
|
|
|
|
|
|
|
1000
|
|
|
|
24
|
|
|
|
|
|
10000
|
|
17
|
|
|
|
|
|
|
|
10000
|
|
7395
|
|
|
|
|
|
|
|
3000
|
|
Tr. 9722
|
|
|
|
|
|
Flushing
|
|
8000
|
|
7502
|
|
|
|
|
|
|
|
10000
|
|
297
|
|
|
|
|
|
|
|
2000
|
|
Tr. 9772
|
|
|
|
|
|
Hall’s Knob
|
|
10000
|
|
400
|
|
|
|
|
|
|
|
2000
|
|
Tr. 9840
|
|
|
|
|
|
Lafferty
|
|
10000
|
|
7302
|
|
|
|
|
|
|
|
1000
|
|
|
|
8901 (Scottie)
|
|
|
|
Lisbon
|
|
8000
|
|
3402
|
|
|
|
|
|
Long Sears
|
|
10000
|
|
375
|
|
|
|
|
|
|
|
10000
|
|
7364
|
|
|
|
|
|
|
|
2000
|
|
Tr. 9766
|
|
|
|
|
|
New Lex
|
|
50000
|
|
1007
|
|
|
|
|
|
|
|
20000
|
|
1005
|
|
|
|
|
|
|
|
20000
|
|
1006
|
|
|
|
|
|
|
|
3000
|
|
Tr. 9709
|
|
|
|
|
|
|
|
2000
|
|
Tr. 9758
|
|
|
|
|
|
|
|
500
|
|
|
|
1001
|
|
|
|
|
|
500
|
|
|
|
|
|
1002
|
|
Plainfield
|
|
10000
|
|
0031
|
|
|
|
|
|
|
|
20000
|
|
7332
|
|
|
|
|
|
|
|
3000
|
|
Tr. 9827
|
|
|
|
|
|
|
|
1000
|
|
|
|
7334
|
|
|
|
|
|
500
|
|
|
|
|
|
7335
|
|
Reynolds
|
|
2000
|
|
Tr. 9710
|
|
|
|
|
|
Sexton
|
|
20000
|
|
8702
|
|
|
|
|
|
|
|
30000
|
|
9724
|
|
|
|
|
|
|
|
3000
|
|
Tr. 9825
|
|
|
|
|
|
|
|
3000
|
|
Tr. 9843
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Off Road
|
|
On Road
|
|
Gas Tank
|
|
Location
|
|
Capacity
|
|
Tank No.
|
|
Tank No.
|
|
No.
|
|
Stillwater
|
|
10000
|
|
00227
|
|
|
|
|
|
|
|
300
|
|
|
|
00230
|
|
|
|
|
|
2000
|
|
0233
|
|
|
|
|
|
|
|
2000
|
|
00258
|
|
|
|
|
|
|
|
10000
|
|
00259
|
|
|
|
|
|
|
|
2000
|
|
Tr. 9798
|
|
|
|
|
|
|
|
Drum
|
|
|
|
|
|
Drum
|
|
Stonecreek
|
|
2000
|
|
0271
|
|
|
|
|
|
|
|
20000
|
|
284
|
|
|
|
|
|
|
|
12000
|
|
285
|
|
|
|
|
|
|
|
20000
|
|
286
|
|
|
|
|
|
|
|
20000
|
|
287
|
|
|
|
|
|
|
|
20000
|
|
288
|
|
|
|
|
|
|
|
20000
|
|
289
|
|
|
|
|
|
|
|
2000
|
|
Tr. 9822
|
|
|
|
|
|
|
|
2000
|
|
|
|
2502
|
|
|
|
|
|
275
|
|
|
|
|
|
2503
|
|
Strasburg
|
|
8600
|
|
524
|
|
|
|
|
|
|
|
10000
|
|
4201
|
|
|
|
|
|
|
|
2000
|
|
|
|
4202
|
|
|
|
|
|
1000
|
|
|
|
|
|
4203
|
|
Train Load Out
|
|
10000
|
|
5202
|
|
|
|
|
|
Train Unload
|
|
1000
|
|
7101
|
|
|
|
|
|
Warehouse
|
|
2000
|
|
|
|
6101
|
|
|
|
Wheeling V
|
|
2000
|
|
|
|
7701
|
|
|
|
Wheeling V
|
|
10000
|
|
7702
|
|
|
|
|
|
|
|
15000
|
|
7383
|
|
|
|
|
|
|
|
2000
|
|
Tr. 9797
|
|
|
|
|
|
|
|
500
|
|
|
|
|
|
7703
|
2. Fuel Storage Tanks (Kentucky)
|
|
|
|
|
|
|
Location
|
|
Capacity
|
|
Tank No.
|
|
Briar Hill
|
|
5000
|
|
T-101
|
|
|
|
8020
|
|
T-102
|
|
|
|
6000
|
|
T-103
|
|
|
|
6909
|
|
T-104
|
|
|
|
10000
|
|
T-105
|
|
|
|
7500
|
|
T-106
|
|
|
|
4400
|
|
T-201
|
|
|
|
10000
|
|
T-107
|
|
|
|
10000
|
|
T-108
|
|
|
|
|
|
|
|
|
|
Location
|
|
Capacity
|
|
Tank No.
|
|
Jessup
|
|
|
10000
|
|
|
T-110
|
|
|
|
|
8130
|
|
|
T-203
|
|
KO
|
|
|
12126
|
|
|
T-111
|
|
|
|
|
12855
|
|
|
T-119
|
|
|
|
|
4400
|
|
|
T-204
|
|
R&L Winn North
|
|
|
11650
|
|
|
T-112
|
|
|
|
|
3000
|
|
|
T-113
|
|
Island Dock
|
|
|
1128
|
|
|
T-115
|
|
|
|
|
8685
|
|
|
T-116
|
|
|
|
|
7150
|
|
|
T-202
|
3. Oil Storage Tanks (Ohio)
|
|
|
|
|
|
|
|
|
Location
|
|
Capacity
|
|
Contents
|
|
Adamsville
|
|
|
2000
|
|
|
15/40
|
|
|
|
|
2000
|
|
|
10 wt
|
|
|
|
|
1000
|
|
|
C-4 TO4-30
|
|
|
|
|
550
|
|
|
C-4 TO4-60
|
|
|
|
|
8000
|
|
|
Waste Oil
|
|
Barb Tipple
|
|
|
275
|
|
|
Engine Oil
|
|
|
|
|
275
|
|
|
Hydraulic Oil
|
|
|
|
|
275
|
|
|
Transmission Oil
|
|
|
|
|
275
|
|
|
Antifreeze
|
|
|
|
|
275
|
|
|
90 wt
|
|
|
|
|
1000
|
|
|
Waste Oil
|
|
|
|
|
10000
|
|
|
Dust Bond (#7365)
|
|
Beagle Club
|
|
|
1500
|
|
|
C-4 TO4-10
|
|
|
|
|
1000
|
|
|
C-4 TO4-30
|
|
|
|
|
1000
|
|
|
15/40
|
|
|
|
|
500
|
|
|
60 wt
|
|
|
|
|
500
|
|
|
Antifreeze
|
|
|
|
|
550
|
|
|
Waste Oil
|
|
Boswell
|
|
|
2000
|
|
|
15/40
|
|
|
|
|
8000
|
|
|
10 wt
|
|
|
|
|
2000
|
|
|
C-4 TO4-30
|
|
|
|
|
2000
|
|
|
60 wt
|
|
|
|
|
8000
|
|
|
Antifreeze
|
|
|
|
|
10000
|
|
|
Waste Oil
|
|
CR 29
|
|
|
2000
|
|
|
15/40
|
|
|
|
|
2000
|
|
|
10 wt
|
|
|
|
|
1000
|
|
|
30 wt
|
|
|
|
|
550
|
|
|
60 wt
|
|
|
|
|
550
|
|
|
Antifreeze
|
|
|
|
|
|
|
|
|
|
Location
|
|
Capacity
|
|
Contents
|
|
Chumney
|
|
|
2000
|
|
|
10 wt
|
|
|
|
|
2000
|
|
|
15/40
|
|
|
|
|
1000
|
|
|
30 wt
|
|
|
|
|
550
|
|
|
60 wt
|
|
|
|
|
550
|
|
|
Antifreeze
|
|
|
|
2 Totes
|
|
Waste Oil
|
|
Daron
|
|
|
2000
|
|
|
10 wt
|
|
|
|
|
2000
|
|
|
15/40
|
|
|
|
|
4000
|
|
|
30 & 60 wt (3 way split)
|
|
|
|
5 Totes
|
|
Antifreeze
|
|
|
|
|
3000
|
|
|
Waste Oil
|
|
Daron West
|
|
|
1500
|
|
|
30 & 60 wt, 15/40 (3 way split)
|
|
|
|
|
500
|
|
|
60 wt
|
|
|
|
|
500
|
|
|
Antifreeze
|
|
|
|
4 Totes
|
|
Waste Oil
|
|
Dock
|
|
4 Totes
|
|
(250 Gallon)
|
|
|
|
2 Totes
|
|
Waste Oil
|
|
Flushing
|
|
|
1000
|
|
|
15/40
|
|
|
|
|
1000
|
|
|
10 wt
|
|
|
|
|
550
|
|
|
60 wt
|
|
|
|
|
550
|
|
|
30 wt
|
|
|
|
|
300
|
|
|
Antifreeze
|
|
New Lex
|
|
|
10000
|
|
|
10 & 30 wt, 15/40, empty (2500) (4 way split)
|
|
|
|
2 Totes
|
|
50 wt
|
|
|
|
2 Totes
|
|
80/9 wt
|
|
|
|
1 Tote
|
|
68 wt
|
|
|
|
3 Totes
|
|
Antifreeze
|
|
Plainfield
|
|
|
1000
|
|
|
15/40
|
|
|
|
|
1000
|
|
|
10 wt
|
|
|
|
|
1000
|
|
|
30 wt
|
|
|
|
|
500
|
|
|
60 wt
|
|
|
|
|
500
|
|
|
Antifreeze
|
|
|
|
|
1000
|
|
|
Waste Oil
|
|
Sexton
|
|
|
1000
|
|
|
15/40
|
|
|
|
2 x1000
|
|
10 wt
|
|
|
|
|
1000
|
|
|
#46 Hydraulic Oil
|
|
|
|
|
550
|
|
|
60 wt
|
|
|
|
|
550
|
|
|
30 wt
|
|
|
|
|
550
|
|
|
Antifreeze
|
|
|
|
|
1500
|
|
|
Waste Oil
|
|
Stillwater
|
|
|
4000
|
|
|
15/40
|
|
|
|
|
4000
|
|
|
10 wt
|
|
|
|
|
1000
|
|
|
30 wt
|
|
|
|
|
1000
|
|
|
60 wt
|
|
|
|
|
1000
|
|
|
Waste Oil
|
|
|
|
|
|
|
|
|
|
Location
|
|
Capacity
|
|
Contents
|
|
Stonecreek
|
|
|
1000
|
|
|
10 wt
|
|
|
|
|
1000
|
|
|
15/40
|
|
|
|
|
1000
|
|
|
30 wt
|
|
|
|
|
550
|
|
|
Antifreeze
|
|
|
|
|
550
|
|
|
60 wt
|
|
|
|
2 x 300
|
|
Waste Oil
|
|
Strasburg
|
|
|
3 x 280
|
|
|
Oil
|
|
|
|
|
280
|
|
|
Waste Oil
|
|
|
|
278 (Steel)
|
|
Used Fuel Oil
|
|
Wheeling Valley
|
|
|
1000
|
|
|
15/40
|
|
|
|
|
1000
|
|
|
30 wt
|
|
|
|
|
1000
|
|
|
60 wt
|
|
|
|
|
2000
|
|
|
10 wt
|
|
|
|
|
500
|
|
|
Antifreeze
|
|
|
|
|
2000
|
|
|
Waste Oil
|
|
|
|
|
|
*
|
|
Highlighted entries owned by Randy Moore, not Oxford Mining Company, LLC
|
4. Oil Storage Tanks (Kentucky)
|
|
|
|
|
|
|
|
|
Location
|
|
Capacity
|
|
Contents
|
|
Island Dock
|
|
|
300
|
|
|
Fleet 15W-40
|
|
|
|
|
2 x 300
|
|
|
Megaflow AW46
|
|
|
|
|
300
|
|
|
UGL 85W-140
|
|
|
|
|
300
|
|
|
Fleet Charge Antifreeze
|
|
Schoate
|
|
|
4000
|
|
|
PowerDrive 30
|
|
|
|
|
2 x 275
|
|
|
UGL 80W-90
|
|
|
|
|
3000
|
|
|
Megaflow AW46
|
|
|
|
|
2 x 1000
|
|
|
Fleet 15W-40
|
|
|
|
|
4000
|
|
|
Fleet 10W
|
|
|
|
|
1000
|
|
|
PowerDrive 50
|
|
|
|
|
1100
|
|
|
Ecoterra HVI 46
|
|
|
|
|
1100
|
|
|
Fleet Charge Antifreeze
|
|
|
|
|
275
|
|
|
MegaPlex XD5 grease bin
|
|
|
|
|
1400
|
|
|
Fleet 10W
|
|
|
|
|
1400
|
|
|
Fleet 15W-40
|
|
|
|
|
900
|
|
|
PowerDrive 30
|
|
|
|
|
900
|
|
|
PowerDrive 50
|
|
|
|
|
900
|
|
|
Fleet 10W
|
|
|
|
|
550
|
|
|
Fleet Charge Antifreeze
|
|
|
|
|
275
|
|
|
MegaPlex XD5 grease bin
|
|
|
|
|
|
|
|
|
|
Location
|
|
Capacity
|
|
Contents
|
|
KO Mine
|
|
|
1100
|
|
|
Fleet 10W
|
|
|
|
|
1100
|
|
|
Fleet 15W-40
|
|
|
|
|
550
|
|
|
PowerDrive 30
|
|
|
|
|
550
|
|
|
PowerDrive 50
|
|
|
|
|
550
|
|
|
Fleet Charge Antifreeze
|
|
|
|
|
550
|
|
|
Megaflow AW46
|
|
|
|
|
1100
|
|
|
Waste Oil
|
|
Jessup
|
|
|
1100
|
|
|
Fleet 10W
|
|
|
|
|
1100
|
|
|
Fleet 15W-40
|
|
|
|
|
550
|
|
|
PowerDrive 30
|
|
|
|
|
550
|
|
|
PowerDrive 50
|
|
|
|
|
550
|
|
|
Fleet Charge Antifreeze
|
|
|
|
|
550
|
|
|
Megaflow AW46
|
|
|
|
|
|
*
|
|
Highlighted entries owned by Home Oil rather than Oxford Mining Company — Kentucky, LLC
|
Part III
None.
Schedule 4.01(p)
Open Year Tax Returns
|
|
|
|
|
|
|
Loan Party/Subsidiary/
|
|
|
|
|
Tax Affiliate
|
|
Tax Year
|
|
|
Oxford Mining Company*
|
|
|
2006
|
|
|
|
|
|
1/1-8/23 2007
|
|
|
|
|
|
|
|
|
Oxford Resource Partners, LP
|
|
|
8/24-12/31 2007
|
|
|
|
|
|
2008
|
|
|
|
|
|
2009
|
|
|
|
|
|
|
|
|
Oxford Resources GP, LLC
|
|
|
2007
|
|
|
|
|
|
2008
|
|
|
|
|
|
2009
|
|
|
|
|
|
|
|
|
Harrison Resources, LLC
|
|
|
2007
|
|
|
|
|
|
2008
|
|
|
|
|
|
2009
|
|
|
|
|
|
|
*
|
|
Predecessor of Oxford Mining Company, LLC
|
Schedule 4.01(s)
Real Property
I. Oxford Mining Company, LLC Owned (Fee Simple and Fee Mineral) and Leased Real Property
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(not certified
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
— see document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Exhibit Attachment
|
|
records)
|
|
Athens
|
|
OH
|
|
Fluharty
|
|
Lease
|
|
05/04/2006
|
|
OR 426 - 272
|
|
Athens - B-1
|
|
D01-00100222-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-00100238-00
|
|
Athens
|
|
OH
|
|
Stevens
|
|
Lease
|
|
05/04/2006
|
|
OR 417 - 2498
|
|
Athens - B-2
|
|
D01-00100230-00
|
|
Athens
|
|
OH
|
|
Stevens-Hook
|
|
Lease
|
|
05/04/2006
|
|
OR 426 - 264
|
|
Athens - B-3
|
|
D01-00100219-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-00100220-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-00100221-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-00100239-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-99900007-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-99900008-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-99900009-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-99900025-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-99900026-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-99900027-00
|
|
Athens
|
|
OH
|
|
Cameron
|
|
Lease
|
|
07/14/2008
|
|
OR 429 - 217
|
|
Athens B-4
|
|
D01-00100203-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-00100202-00
|
|
Athens
|
|
OH
|
|
Brake
|
|
Lease
|
|
07/09/200
|
|
OR 429 - 221
|
|
Athens B-5
|
|
D01-00100226-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-00100224-00
|
|
Athens
|
|
OH
|
|
Russell
|
|
Lease
|
|
07/10/2008
|
|
OR 429 - 211
|
|
Athens B-6
|
|
D01-00100237-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-00100236-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D01-00100217-00
|
|
Athens
|
|
OH
|
|
Lucas and Williams
|
|
Lease
|
|
11/19/2008
|
|
OR 430 - 1901
|
|
Athens B-7
|
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D01-00100204-00
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Assignment
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10/25/2008
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(441 - 1997)
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Tax Parcel Number(s)
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(not certified
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Mortgage
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— see document & tax
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County
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State
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Name
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Type of Acquisition
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Document Date
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Recording Data
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Exhibit Attachment
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records)
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Belmont
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OH
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K&S Shugert
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Deed
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12/10/2009
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OR 211 - 819
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Belmont A-1
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39-01481.000
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(exchange)
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39-01482.000
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(# 9 and # 11 coal and
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mining rights — Union
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Township)
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Belmont
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OH
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Robt. Shugert
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Deed
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12/10/2009
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OR 211 - 815
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Belmont A-2
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39-01483.000
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(exchange)
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39-01484.000
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(mining rights for #9
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and #11 coal — Union
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Township)
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Belmont
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OH
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North American Coal
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Deed
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04/06/2006
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OR 57 - 151
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Belmont A-3
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41-01039.000
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Royalty
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41-01040.000
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(Warren Twp. - #8 coal
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& mining rights)
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Belmont
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OH
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Jan Kenan et al
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Deed
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06/30/2003
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DV 797 - 779
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Belmont A-4
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39-00680.000
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(Timmons)
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Aff Surveyor
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D.V. 797 - 789
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39-00679.000
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Belmont
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OH
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CSX Transportation
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Deed
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05/22/2003
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DV 788 - 792
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Belmont A-5
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39-90010.002
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(railroad bed))
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Belmont
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OH
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Taylor
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Deed
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09/27/2000
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OR 761 - 462
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Belmont A-6
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(see document)
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Belmont
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OH
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Buckeye Management
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Deed
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05/08/2008
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OR 152 - 323
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Belmont A-7
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09-01400.000
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(Speidel)
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09-01401.000
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(Hutchison/Kovacs)
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09-01399.000
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Tax Parcel Number(s)
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(not certified
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Mortgage
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— see document & tax
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County
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State
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Name
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Type of Acquisition
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Document Date
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Recording Data
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Exhibit Attachment
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records)
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Belmont
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OH
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Consolidation
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Deed
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07/30/2002
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OR 779 - 862
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Belmont A-8
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05-00477.000
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Coal (July
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(15.02 ac)
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2002
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transaction) (Flushing Township)
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Belmont
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OH
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Consolidation
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Deed
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03/17/2003
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OR 786 - 448
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Belmont A-9
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None
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Coal (July 2002
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(see document)
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transaction)
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(Spiga --
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conveyance of
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interest in coal
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royalty
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reservation)
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Belmont
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OH
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Consolidation
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Deed
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07/30/2002
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DV 779 - 868
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Belmont A-10
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41-00444.000
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Coal (July 2002
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Aff Surveyor
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DV 785 - 823
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41-00445.000
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transaction)
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41-00446.000
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(Flushing and
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41-00436.000
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Warren
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41-00431.000
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Townships)
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41-00430.000
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41-00883.000
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41-00881.000
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05-00714.000
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Tax Parcel Number(s)
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(not certified
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Mortgage
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— see document & tax
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County
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State
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Name
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Type of Acquisition
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Document Date
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Recording Data
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Exhibit Attachment
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records)
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Belmont
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OH
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Ohio River
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Deed
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03/06/2002
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DV 776 — 55
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Belmont A-11
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39-00543.000
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Collieries
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39-00544.000
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39-00545.000
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39-00546.000
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39-00547.000
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39-00548.000
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39-00549.000
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39-00829.000
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39-00830.000
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Belmont
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OH
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Consolidation Coal
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Deed
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12/17/2002
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OR 785 - 829
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Belmont A-12
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41-00881.004
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(July 2002
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transaction)
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(Warren Twp.)
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(#8 coal & mining
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rights)
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Belmont
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OH
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Cravat Coal
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Deed
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04/16/2007
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OR 105 — 616
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Belmont A-13
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50-00546.000
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(Whlg Valley)
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50-00546.003
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(Edna Campbell)
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50-00584.000
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(Bruner Land)
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50-00549.002
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(Bedway Land)
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Belmont
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OH
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Harrison Leasing
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Deed
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04/16/2007
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OR 105 — 630
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Belmont A-14
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(see document)
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(Beagle Club)
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Belmont
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OH
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R&F Coal
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Deed
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12/23/1998
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DV 744 — 258
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Belmont A-15
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Multiple
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(Warren Twp.)
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(see document)
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Tax Parcel Number(s)
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(not certified
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Mortgage
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— see document & tax
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County
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State
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Name
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Type of Acquisition
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Document Date
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Recording Data
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Exhibit Attachment
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records)
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Belmont
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OH
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Jeffrey D. Fleishman
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Deed
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07/30/2008
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OR 158 — 289
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Belmont A-16
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09-00338.000
39-00382.000
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Belmont
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OH
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Consolidation Coal
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Deed
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03/31/2009
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OR 191 — 936
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Belmont A-17
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05-00611.000
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(County Road 29)
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Belmont
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OH
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Jeffco Resources
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Deed
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12/21/2000
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DV 763 — 572
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Belmont A-18
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41-00563.000
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41-00460.000
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41-00465.001
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Belmont
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OH
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Seaway Coal
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Deed
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03/03/2003
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DV 786 — 373
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Belmont A-19
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(see document)
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Belmont
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OH
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Capstone
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Deed
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03/07/2003
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DV 785 — 840
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Belmont A-20
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(see document)
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Belmont
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OH
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Capstone
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Lease
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06/19/2001
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LV 111 — 264
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Belmont B-1
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(see document)
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(Martin #8)
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Addendum
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03/15/2002
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LV 111 — 477
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Belmont B-2
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Belmont
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OH
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Capstone/Bedway
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Lease
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06/19/2001
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LV 111 — 254
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Belmont B-3
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(see document)
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(Martin Area)
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(108-44)
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03/15/2002
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LV 111 - 482
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Belmont B-4
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1
st
Addend
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2
nd
Addend
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(111-213)
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Sublease
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Sublease Add
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3
rd
Addend
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(72-724)
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Tax Parcel Number(s)
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(not certified
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Mortgage
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— see document & tax
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County
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State
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Name
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Type of Acquisition
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Document Date
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Recording Data
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Exhibit Attachment
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records)
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Belmont
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OH
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Capstone
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Lease
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06/20/2000
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LV 110 — 863
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Belmont B-5
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(see document)
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(Miller)
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Belmont
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OH
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Krulock et al
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Lease
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OR 105 — 391
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Belmont B-6
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50-00541.000
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(Cravat)
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(112-570)
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50-00634.000
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(Whlg Valley)
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Assignment
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Belmont
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OH
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Mularcik
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Lease
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OR 105 — 391
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Belmont B-6
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50-00549.000
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Cravat
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(39-797)
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50-00549.001
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(Whlg Valley)
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Assignment
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Belmont
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OH
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Henderson
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Lease
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OR 105 — 391
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Belmont B-6
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50-01178.000
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(Cravat)
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(39-786)
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(Whlg Valley)
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Assignment
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|
|
Belmont
|
|
OH
|
|
Krulock Coal
|
|
Lease
|
|
|
|
OR 105 — 391
|
|
Belmont B-6
|
|
50-00633.000
|
|
|
|
|
|
(Cravat)
|
|
(111-703)
|
|
|
|
|
|
|
|
41-00256.004
|
|
|
|
|
|
(Whlg Valley)
|
|
Assignment
|
|
|
|
|
|
|
|
50-00622.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50-00624.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50-00623.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50-00643.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50-00644.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50-00645.000
|
|
Belmont
|
|
OH
|
|
Matusek
|
|
Lease
|
|
|
|
OR 105 — 391
|
|
Belmont B-6
|
|
50-00545.000
|
|
|
|
|
|
Cravat
|
|
(101-963)
|
|
|
|
OR 183 — 207
|
|
Belmont B-7
|
|
50-00550.001
|
|
|
|
|
|
(Whlg Valley)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Addendum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(not certified
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
— see document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Exhibit Attachment
|
|
records)
|
|
Belmont
|
|
OH
|
|
Antolak
|
|
Lease
|
|
|
|
OR 105 — 391
|
|
Belmont B-6
|
|
32-01377.000
|
|
|
|
|
|
(Cravat)
|
|
(112-413)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Beagle Club)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Mel-Tina Ltd
|
|
Lease
|
|
|
|
OR 105 — 391
|
|
Belmont B-6
|
|
50-00521.000
|
|
|
|
|
|
(Cravat)
|
|
(112-428)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Beagle Club)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Porterfield
|
|
Lease
|
|
|
|
OR 105 — 391
|
|
Belmont B-6
|
|
32-001600.000
|
|
|
|
|
|
Cravat
|
|
(112-79)
|
|
|
|
|
|
|
|
32-01408.000
|
|
|
|
|
|
(Beagle Club)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Zaccagnini et al
|
|
Lease
|
|
|
|
OR 105 — 391
|
|
Belmont B-6
|
|
32-01716.000
|
|
|
|
|
|
(Cravat)
|
|
(112-13)
|
|
|
|
|
|
|
|
32-01719.000
|
|
|
|
|
|
(Beagle Club)
|
|
Assignment
|
|
|
|
|
|
|
|
32-01774.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32-01775.000
|
|
Belmont
|
|
OH
|
|
Jefferson Beagle
|
|
Lease
|
|
|
|
OR 105 — 391
|
|
Belmont B-6
|
|
32-01244.000
|
|
|
|
|
|
Club
|
|
(112-30)
|
|
|
|
|
|
|
|
32-01718.000
|
|
|
|
|
|
(Cravat)
|
|
Addendum I
|
|
|
|
|
|
|
|
32-01716.000
|
|
|
|
|
|
(Beagle Club)
|
|
Addendum II
|
|
|
|
|
|
|
|
32-01719.000
|
|
|
|
|
|
|
|
Addend III
|
|
|
|
|
|
|
|
32-01717.000
|
|
|
|
|
|
|
|
Addend IV
|
|
|
|
|
|
|
|
32-01243.000
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(not certified
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
— see document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Exhibit Attachment
|
|
records)
|
|
Belmont
|
|
OH
|
|
Shugert
|
|
Lease
|
|
|
|
OR 105 — 391
|
|
Belmont B-6
|
|
(pt) 39-00710.000
|
|
|
|
|
|
(Cravat)
|
|
(112-24)
|
|
|
|
|
|
|
|
12-00208.000
|
|
|
|
|
|
(Badgerstown)
|
|
Assignment
|
|
|
|
|
|
|
|
12-00201.002
|
|
Belmont
|
|
OH
|
|
Fleischman
|
|
Lease
|
|
|
|
OR 105 — 391
|
|
Belmont B-6
|
|
09-00338.000
|
|
|
|
|
|
(Cravat)
|
|
(112-418)
|
|
|
|
|
|
|
|
39-00382.000
|
|
|
|
|
|
(Badgerstown)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Welch
|
|
Lease
|
|
|
|
OR 105 — 391
|
|
Belmont B-6
|
|
39-00383.003
|
|
|
|
|
|
Cravat
|
|
(112-543)
|
|
|
|
|
|
|
|
09-00312.000
|
|
|
|
|
|
(Badgerstown)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Fulkerson
|
|
Lease
|
|
|
|
OR 105 — 391
|
|
Belmont B-6
|
|
(see document)
|
|
|
|
|
|
(Cravat)
|
|
(111-586)
|
|
|
|
OR 183 — 212
|
|
Belmont B-8
|
|
|
|
|
|
|
|
(Badgerstown)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Addendum
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Adkins
|
|
Lease
|
|
|
|
OR 105 — 391
|
|
Belmont B-6
|
|
(see document)
|
|
|
|
|
|
(Cravat)
|
|
(111-590)
|
|
|
|
OR 183 — 210
|
|
Belmont B-9
|
|
|
|
|
|
|
|
(Badgerstown)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Addendum
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Capstone
|
|
Lease
|
|
|
|
OR 105 — 391
|
|
Belmont B-6
|
|
09-00626.000
|
|
|
|
|
|
(Cravat)
|
|
(111-448)
|
|
|
|
|
|
|
|
09-00634.000
|
|
|
|
|
|
(Badgertown)
|
|
Addendum
|
|
|
|
|
|
|
|
09-00635.000
|
|
|
|
|
|
|
|
(87-371)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Jeffco Resources
|
|
Lease
|
|
12/01/2000
|
|
LV 111 — 37
|
|
Belmont B-10
|
|
(see document)
|
|
Belmont
|
|
OH
|
|
Shutway
|
|
Lease
|
|
02/26/2005
|
|
LV 113 — 219
|
|
Belmont B-11
|
|
(see document)
|
|
Belmont
|
|
OH
|
|
Smail/Davis
|
|
Lease
|
|
07/06/2005
|
|
OR 12 — 854
|
|
Belmont B-12
|
|
39-00493.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-01405.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(not certified
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
— see document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Exhibit Attachment
|
|
records)
|
|
Belmont
|
|
OH
|
|
Ohio River Collieries
(Monaco)
|
|
Lease
|
|
03/05/2002
|
|
LV 111 — 465
|
|
Belmont B-13
|
|
39-00545.000
|
|
Belmont
|
|
OH
|
|
Stratton
|
|
Lease
|
|
|
|
OV 112 — 399
|
|
Belmont B-14
|
|
(see document)
|
|
|
|
|
|
(Flushing North)
|
|
(111-422)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Addendum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Part Release
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(112-440)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Addendum
|
|
|
|
OR 191 — 282
|
|
Belmont B-15
|
|
|
|
Belmont
|
|
OH
|
|
Capstone
|
|
Master Lease &
|
|
12/02/02
|
|
LV 113 — 195
|
|
Belmont B-16
|
|
(see document)
|
|
|
|
|
|
(Flushing North)
|
|
Sublease
|
|
Re-recorded
|
|
LV 113 — 252
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Alice Reilly
|
|
Lease
|
|
01/31/2001
|
|
LV 111 — 125
|
|
Belmont B-17
|
|
(see document)
|
|
Belmont
|
|
OH
|
|
Buckeye Management
|
|
Lease
|
|
06/16/2007
|
|
OR 105 — 395
|
|
Belmont B-18
|
|
09-01400.000
|
|
|
|
|
|
(Speidel)
|
|
|
|
|
|
|
|
|
|
09-01401.000
|
|
|
|
|
|
(Hutchison/Kovacs)
|
|
|
|
|
|
|
|
|
|
09-01399.000
|
|
Belmont
|
|
OH
|
|
Consolidation Coal
|
|
Lease
|
|
12/17/2000
|
|
LV 112 — 87
|
|
Belmont B-19
|
|
(see document)
|
|
|
|
|
|
(July 2002 transaction)
|
|
(73-306)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Seaway
|
|
Lease
|
|
05/01/1971
|
|
LV 112 — 114
|
|
Belmont B-20
|
|
(see document)
|
|
|
|
|
|
Consolidation Coal
|
|
(86-477)
|
|
12/17/2002
|
|
|
|
|
|
|
|
|
|
|
|
(July 2002 transaction)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(not certified
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
— see document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Exhibit Attachment
|
|
records)
|
|
Belmont
|
|
OH
|
|
Seaway/Thompson
|
|
Lease
|
|
12/29/1998
|
|
LV 110 — 189
|
|
Belmont B-21
|
|
(see document)
|
|
|
|
|
|
|
|
(93-333)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Addendum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(104-45)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2
nd
Addend
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(109-193)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Nancy Miller
|
|
Lease
|
|
07/30/2007
|
|
OR 117 — 598
|
|
Belmont B-22
|
|
39-00549.001
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-00572.000
|
|
Belmont
|
|
OH
|
|
Bedway Land and
|
|
Lease
|
|
01/25/03
|
|
LV 112 — 258
|
|
Belmont B-23
|
|
32-01242.000
|
|
|
|
|
|
Minerals
|
|
|
|
|
|
|
|
|
|
32-10914.000
|
|
Belmont
|
|
OH
|
|
Ohio River Collieries
|
|
Lease
|
|
03/24/06
|
|
OR 49 — 922
|
|
Belmont B-24
|
|
32-01481.000
|
|
|
|
|
|
(Kaczor Area)
|
|
|
|
|
|
|
|
|
|
39-00522.000
|
|
|
|
|
|
(Jobe/Dudek/
|
|
|
|
|
|
|
|
|
|
51-00192.000
|
|
|
|
|
|
Gossett-Hornsby)
|
|
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Fitch
|
|
Lease
|
|
11/05/2007
|
|
OR 130 — 282
|
|
Belmont B-25
|
|
41-00243.000
|
|
Belmont
|
|
OH
|
|
Dagrava
|
|
Lease
|
|
03/102008
|
|
OR 144 — 314
|
|
Belmont B-26
|
|
32-01761.000
|
|
Belmont
|
|
OH
|
|
Pollock
|
|
Lease
|
|
05/12/2008
|
|
OR 151 — 881
|
|
Belmont B-27
|
|
39-00599.000
|
|
Belmont
|
|
OH
|
|
Robt Shugert
|
|
Lease
|
|
01/19/2009
|
|
OR 176 — 400
|
|
Belmont B-28
|
|
39-00710.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(not certified
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
— see document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Exhibit Attachment
|
|
records)
|
|
Belmont
|
|
OH
|
|
Mauersberger
|
|
Lease
|
|
11/26/2008
|
|
OR 174 — 477
|
|
Belmont B-29
|
|
39-00466.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-00668.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-00641.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-00161.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-00640.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-00640.002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-00642.000
|
|
Belmont
|
|
OH
|
|
Consolidation
|
|
Lease
|
|
03/31/2009
|
|
OR 191 — 830
|
|
Belmont B-30
|
|
05-00611.000
|
|
|
|
|
|
Coal
|
|
(90-416)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(County
|
|
Lease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Road 29)
|
|
(106-20)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Addendum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(187-863)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Robt. Shugert
|
|
Lease
|
|
04/27/2009
|
|
OR 191 — 287
|
|
Belmont B-31
|
|
39-00710.000
|
|
|
|
|
|
(exchange)
|
|
|
|
|
|
|
|
|
|
39-00709.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-00708.000
|
|
Belmont
|
|
OH
|
|
K&S Shugert
|
|
Lease
|
|
03/04/2009
|
|
OR 183 — 214
|
|
Belmont B-32
|
|
39-00414.000
|
|
|
|
|
|
(exchange)
|
|
|
|
|
|
|
|
|
|
39-00633.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-00384.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-00384.001
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-00384.002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-00416.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39-00636.000
|
|
Belmont
|
|
OH
|
|
Jeffco
|
|
Lease
|
|
09/29/2000
|
|
OR 192 — 231
|
|
Belmont B-33
|
|
41-00498.000
|
|
|
|
|
|
Resources
|
|
|
|
|
|
|
|
|
|
41-01613.000
|
|
|
|
|
|
(Barnesville Hospital)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(not certified
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
— see document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Exhibit Attachment
|
|
records)
|
|
Belmont
|
|
OH
|
|
Capstone
|
|
Lease
|
|
12/23/2009
|
|
OR 215 — 154
|
|
Belmont B-34
|
|
41-00762.000
|
|
|
|
|
|
(Schooley Hollow)
|
|
|
|
|
|
|
|
|
|
41-00761.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41-00780.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41-00782.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41-00783.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41-00791.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41-00788.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41-00792.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41-00785.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41-00786.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41-00789.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41-00787.000
|
|
Belmont
|
|
OH
|
|
Brier Ridge
|
|
Lease
|
|
05/12/2008
|
|
OR 154 — 607
|
|
Belmont B-35
|
|
09-00488.000
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
(112-559)
|
|
|
|
|
|
|
|
41-01468.000
|
|
|
|
|
|
(Speidel)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(103-562)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Green-Crawf
|
|
Lease
|
|
05/12/2008
|
|
OR 154 — 607
|
|
Belmont B-35
|
|
09-00353.000
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
(112-549)
|
|
|
|
|
|
|
|
09-01235.000
|
|
|
|
|
|
(Speidel)
|
|
Assignment
|
|
|
|
|
|
|
|
09-01311.000
|
|
|
|
|
|
|
|
(103-562)
|
|
|
|
|
|
|
|
09-00356.000
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Robt Shepherd
|
|
Lease
|
|
05/12/2008
|
|
OR 154 — 607
|
|
Belmont B-35
|
|
09-00387.000
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
(112-565)
|
|
|
|
|
|
|
|
09-00653.000
|
|
|
|
|
|
(Speidel)
|
|
Assignment
|
|
|
|
|
|
|
|
09-00654.000
|
|
|
|
|
|
|
|
(103-562)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Capstone
|
|
Lease
|
|
05/21/2010
|
|
OR 230 — 175
|
|
Belmont B-36
|
|
41-01468.000
|
|
|
|
|
|
(Speidel)
|
|
|
|
|
|
|
|
|
|
09-00488.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
09-00643.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(not certified
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
— see document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Exhibit Attachment
|
|
records)
|
|
Belmont
|
|
OH
|
|
Capstone
|
|
Lease
|
|
03/31/2009
|
|
OR 229 — 519
|
|
Belmont B-37
|
|
05-00591.000
|
|
|
|
|
|
(Gasline)
|
|
|
|
|
|
|
|
|
|
05-00593.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
05-00592.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
05-00591.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
51-00185.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
51-00184.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
51-00183.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
51-00182.000
|
|
Belmont
|
|
OH
|
|
Capstone
|
|
Lease
|
|
01/01/2010
|
|
OR 229 — 498
|
|
Belmont B-38
|
|
29-03499.000
|
|
|
|
|
|
(Bellaire Dock)
|
|
|
|
|
|
|
|
|
|
29-03500.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29-03634.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29-03635.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29-03661.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29-03662.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29-03863.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29-03922.000
|
|
Belmont
|
|
OH
|
|
Capstone
|
|
Lease
|
|
01/01/2010
|
|
OR 229 — 516
|
|
Belmont B-39
|
|
(see document)
|
|
|
|
|
|
(Bellaire Dock)
|
|
(106-194)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Swierkos)
|
|
Sublease
|
|
|
|
|
|
|
|
|
|
Belmont
|
|
OH
|
|
Ohio Power
|
|
Lease
|
|
01/06/2010
|
|
OR 224 — 895
|
|
Belmont B-40
|
|
29-90037.000
|
|
|
|
|
|
(Bellaire Dock)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
(not certified see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Exhibit Attachment
|
|
document & tax records)
|
|
Carroll
|
|
OH
|
|
The Conservation
|
|
Lease
|
|
04/16/2007
|
|
OR 38 — 1266
|
|
Carroll B-1
|
|
(see document)
|
|
|
|
|
|
Fund (Wright)
|
|
(12-119)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Cravat)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Dobrijevic)
|
|
|
|
|
|
|
|
|
|
|
|
Carroll
|
|
OH
|
|
Wm. Wright
|
|
Lease
|
|
04/16/2007
|
|
OR 38 — 1269
|
|
Carroll B-2
|
|
33-01252.000
|
|
|
|
|
|
(Cravat)
|
|
(84-874)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Dobrijevic)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(37-2032)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Carroll
|
|
OH
|
|
(Cravat)
|
|
Lease
|
|
04/16/2007
|
|
OR 38 — 1269
|
|
Carroll B-2
|
|
17-00005.000
|
|
|
|
|
|
(Dobrijevic)
|
|
(84-872)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(37-2032)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Carroll
|
|
OH
|
|
Dan Wright
|
|
Lease
|
|
04/16/2007
|
|
OR 38 — 1269
|
|
Carroll B-2
|
|
33-01248.000
|
|
|
|
|
|
(Dobrijevic)
|
|
(84-870)
|
|
|
|
|
|
|
|
33-01247.000
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(37-2032)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
Type of
|
|
Document
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Carroll
|
|
OH
|
|
The Conservation Fund
(Cravat/Buckeye)
(Autumn Road)
|
|
Lease
|
|
05/12/2008
|
|
OR 46 – 2036
|
|
Carroll B-3
|
|
33-01252.000
|
|
|
|
|
|
|
(17-1714)
|
|
|
|
|
|
|
|
33-01248.000
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
33-01247.000
|
|
|
|
|
|
|
(38-260)
|
|
|
|
|
|
|
|
17-00124.000
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
17-00125.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17-00129.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17-00130.000
|
|
Carroll
|
|
OH
|
|
Yockel
|
|
Lease
|
|
05/12/2008
|
|
OR 46 – 2036
|
|
Carroll B-3
|
|
17-00279.001
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
(17-1704)
|
|
|
|
|
|
|
|
17-00279.002
|
|
|
|
|
|
(Autumn Road)
|
|
Assignment
|
|
|
|
|
|
|
|
17-00279.000
|
|
|
|
|
|
|
|
(38-260)
|
|
|
|
|
|
|
|
17-00279.007
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Carroll
|
|
OH
|
|
Holmes Woodland
|
|
Lease
|
|
05/12/2008
|
|
OR 46 – 2036
|
|
Carroll B-3
|
|
17-00579.000
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
(17-1710)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Autumn Road)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(38-260)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Columbiana
|
|
OH
|
|
Ferris Coal
|
|
Deed
|
|
|
|
OR 1477 – 197
|
|
Columbiana A-1
|
|
(see document)
|
|
|
|
|
|
(Sheriff)
|
|
|
|
|
|
|
|
|
|
|
|
Columbiana
|
|
OH
|
|
County Auditor
|
|
Deed
|
|
11/30/2006
|
|
OR 1518 – 567
|
|
Columbiana A-2
|
|
67-00030.000
|
|
|
|
|
|
(Ferris Coal)
|
|
|
|
|
|
|
|
|
|
|
|
Columbiana
|
|
OH
|
|
County Auditor
|
|
Deed
|
|
11/30/2006
|
|
OR 1518 – 573
|
|
Columbiana A-3
|
|
40-00796.000
|
|
|
|
|
|
(Ferris Coal)
|
|
|
|
|
|
|
|
|
|
|
|
Columbiana
|
|
OH
|
|
County Auditor
|
|
Deed
|
|
11/30/2006
|
|
OR 1518 – 571
|
|
Columbiana A-4
|
|
40-00799.000
|
|
|
|
|
|
(Ferris Coal)
|
|
|
|
|
|
|
|
|
|
|
|
Columbiana
|
|
OH
|
|
Baker
|
|
Deed
|
|
11/18/2004
|
|
OR 1329 – 149
|
|
Columbiana A-5
|
|
12-01654.000
|
|
Columbiana
|
|
OH
|
|
Frantz/Perrino
|
|
Deed
|
|
01/11/2008
|
|
OR 1606 – 443
|
|
Columbiana A-6
|
|
12-01653.001
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
(not certified – see
|
|
|
|
|
|
|
|
Type of
|
|
Document
|
|
|
|
Exhibit
|
|
document & tax
|
|
County
|
|
State
|
|
Name
|
|
Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Columbiana
|
|
OH
|
|
Lois Rawson
|
|
Deed
|
|
06/15/2007
|
|
OR 1596 – 262
|
|
Columbiana A-7
|
|
40-00612.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13-00190.000
|
|
Columbiana
|
|
OH
|
|
Petersburg
|
|
Deed
|
|
01/27/2006
|
|
OR 1464 – 614
|
|
Columbiana A-8
|
|
13-00151.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
40-00331.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
40-00378.001
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
40-00377.001
|
|
Columbiana
|
|
OH
|
|
CDDB Holdings (Ferris)
|
|
Deed
|
|
03/23/2010
|
|
OR 1727 – 528
|
|
Columbiana A-9
|
|
12-00214.001
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12-00214.002
|
|
Columbiana
|
|
OH
|
|
Robt Hunt et al
|
|
Deed
|
|
|
|
OR 1730 – 296
|
|
Columbiana A-10
|
|
12-00760.000
|
|
Columbiana
|
|
OH
|
|
Lewis
|
|
Lease
|
|
09/19/2006
|
|
OR 1499 – 428
|
|
Columbiana B-1
|
|
(see document)
|
|
Columbiana
|
|
OH
|
|
Whitten/Stuba
|
|
Lease
|
|
11/17/2005
|
|
OR 1425 – 943
|
|
Columbiana B-2
|
|
12-01831.000
|
|
Columbiana
|
|
OH
|
|
Buckeye Industrial Mining
Scyoc)
|
|
Lease
|
|
05/18/2006
|
|
OR 1436 – 792
|
|
Columbiana B-3
|
|
(see document)
|
|
|
|
|
|
|
(1330-21)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Columbiana
|
|
OH
|
|
Williams
|
|
Lease
|
|
11/23/2004
|
|
OR 1333 – 168
|
|
Columbiana B-4
|
|
(see document)
|
|
Columbiana
|
|
OH
|
|
Derenberger
|
|
Lease
|
|
04/30/2008
|
|
OR 1625 – 911
|
|
Columbiana B-5
|
|
12-01469.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12-01653.000
|
|
Columbiana
|
|
OH
|
|
Buckeye Industrial Mining
(Wells)
|
|
Lease
|
|
|
|
OR 1436 – 794
|
|
Columbiana B-6
|
|
(see document)
|
|
|
|
|
|
|
(1330-15)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
(not certified – see
|
|
|
|
|
|
|
|
Type of
|
|
Document
|
|
|
|
Exhibit
|
|
document & tax
|
|
County
|
|
State
|
|
Name
|
|
Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Columbiana
|
|
OH
|
|
Ferris
|
|
Lease
|
|
03/25/2004
|
|
OR 1275 – 645
|
|
Columbiana B-7
|
|
12-00163.000
|
|
|
|
|
|
Rawson
|
|
(328-153)
|
|
02/25/2010
|
|
OR 1722 – 882
|
|
Columbiana B-8
|
|
12-01653.000
|
|
|
|
|
|
Ferris Bankruptcy Trustee
|
|
Amendment
|
|
|
|
|
|
|
|
12-00153.000
|
|
|
|
|
|
|
(795-511)
|
|
|
|
|
|
|
|
12-01512.000
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
12-00210.000
|
|
|
|
|
|
|
|
Addendum
|
|
|
|
|
|
|
|
12-00214.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12-00757.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12-00215.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12-00017.000
|
|
Columbiana
|
|
OH
|
|
Westover
|
|
Lease
|
|
03/25/2004
|
|
OR 1275 – 645
|
|
Columbiana B-7
|
|
(see document)
|
|
|
|
|
|
|
|
(1258-727)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Coshocton
|
|
OH
|
|
Rager
|
|
Deed
|
|
08/20/1997
|
|
OR 124 – 1075
|
|
Coshocton A-1
|
|
043-00002630-00
|
|
Coshocton
|
|
OH
|
|
Rager
|
|
Deed
|
|
08/20/1997
|
|
OR 124 – 1077
|
|
Coshocton A-2
|
|
043-00003755-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
043-00003756-00
|
|
Coshocton
|
|
OH
|
|
Myers
|
|
Deed
|
|
01/15/2001
|
|
OR 205 – 993
|
|
Coshocton A-4
|
|
043-00003755-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
043-00003756-00
|
|
Coshocton
|
|
OH
|
|
Capstone
|
|
Master Lease &
|
|
12/02/2002
|
|
OR 373 – 24
|
|
Coshocton B-1
|
|
Multiple
|
|
|
|
|
|
(Rose Isleta)
|
|
Sublease
|
|
|
|
|
|
|
|
(see document)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Coshocton
|
|
OH
|
|
Holmes Limestone
|
|
Lease
|
|
02/01/2003
|
|
OR 372 – 493
|
|
Coshocton B-2
|
|
(see document)
|
|
Coshocton
|
|
OH
|
|
Capstone
|
|
Lease
|
|
06/09/2003
|
|
OR 324 – 653
|
|
Coshocton B-3
|
|
(see document)
|
|
|
|
|
|
Fairview /Holmes
|
|
(133-368)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Coshocton
|
|
OH
|
|
T&C Holdco
|
|
Lease
|
|
07/05/2007
|
|
OR 457 – 141
|
|
Coshocton B-4
|
|
(see document)
|
|
Coshocton
|
|
OH
|
|
Columbus Southern Power
|
|
Lease
|
|
03/17/2007
|
|
OR 457 – 148
|
|
Coshocton B-5
|
|
(see document)
|
|
Guernsey
|
|
OH
|
|
Capstone
|
|
Master Lease &
|
|
12/02/2002
|
|
OR 425 – 810
|
|
Guernsey B-1
|
|
(see document)
|
|
|
|
|
|
(Gibson)
|
|
Sublease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(King Crum)
|
|
|
|
|
|
|
|
|
|
|
|
Guernsey
|
|
OH
|
|
Capstone
|
|
Master Lease &
|
|
12/02/2002
|
|
OR 425 - 831
|
|
Guernsey B -2
|
|
|
|
|
|
|
|
(Bird’s Run 1 & 2)
|
|
Sublease
|
|
|
|
|
|
|
|
|
|
Guernsey
|
|
OH
|
|
Holmes Limestone
|
|
Lease
|
|
02/01/2003
|
|
OR 425 – 381
|
|
Guernsey B -3
|
|
(see document)
|
|
Guernsey
|
|
OH
|
|
Capstone
|
|
Lease
|
|
06/09/2003
|
|
OR 369 – 502
|
|
Guernsey B -4
|
|
(see document)
|
|
|
|
|
|
Fairview /Holmes
|
|
(173-785)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Guernsey
|
|
OH
|
|
Wilson
|
|
Lease
|
|
08/12/2008
|
|
OR 458 – 3023
|
|
Guernsey B -5
|
|
23-0000117.000
|
|
Guernsey
|
|
OH
|
|
Capstone
|
|
Lease
|
|
12/23/2009
|
|
OR 469 – 29
|
|
Guernsey B -6
|
|
28-0000235.000
|
|
|
|
|
|
(Schooley Hollow)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
(not certified – see
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Guernsey
|
|
OH
|
|
Combs
|
|
Lease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Conway)
|
|
(436-8)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
Sublease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Hall’s Knob)
|
|
(447 – 2381)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(448-117)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
st
Addend
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(453 – 1855)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
05/12/2008
|
|
OR 457 – 113
|
|
Guernsey B -7
|
|
23-0000006.000
|
|
Guernsey
|
|
OH
|
|
Miller & Gingerich
|
|
Lease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Conway)
|
|
(436-2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
Sublease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Hall’s Knob)
|
|
(447-2381)
|
|
05/12/2008
|
|
OR 457 – 113
|
|
Guernsey B -7
|
|
23-0000417.000
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(448-117)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
st
Addend
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(456-3354)
|
|
|
|
|
|
|
|
|
|
Guernsey
|
|
OH
|
|
Dan Doudna
|
|
Lease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Conway)
|
|
(439-223)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
Sublease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Hall’s Knob)
|
|
(447-2381)
|
|
05/12/2008
|
|
OR 457 – 113
|
|
Guernsey B-7
|
|
23-0000218.000
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(448-117)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
st
Addend
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(457-802)
|
|
|
|
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|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
(not certified – see
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Guernsey
|
|
OH
|
|
Steve Doudna
|
|
Lease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Conway)
|
|
(436-19)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
Sublease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Hall’s Knob)
|
|
(447-2381)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(448-117)
|
|
|
|
|
|
|
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|
|
|
|
|
1
st
Addend
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(456-3528)
|
|
|
|
|
|
|
|
23-0000418.000
|
|
|
|
|
|
|
|
Assignment
|
|
05/12/2008
|
|
OR 457 – 113
|
|
Guernsey B-7
|
|
23-0000419.000
|
|
Guernsey
|
|
OH
|
|
Irving Hall
|
|
Lease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Conway)
|
|
(436-5)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
Sublease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Hall’s Knob)
|
|
(447-2381)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(448-117)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
st
Addend
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(453-1307)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
05/12/2008
|
|
OR 457 – 113
|
|
Guernsey B-7
|
|
23-0000123.000
|
|
Guernsey
|
|
OH
|
|
Vernon Hall
|
|
Lease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Conway)
|
|
(436-12)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
Sublease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Hall’s Knob)
|
|
(447-2381)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(448-117)
|
|
|
|
|
|
|
|
23-0000382.001
|
|
|
|
|
|
|
|
1
st
Addend
|
|
|
|
|
|
|
|
23-0000382.002
|
|
|
|
|
|
|
|
(453-1849)
|
|
|
|
|
|
|
|
23-0000382.000
|
|
|
|
|
|
|
|
Assignment
|
|
05/12/2008
|
|
OR 457 – 113
|
|
Guernsey B-7
|
|
23-0000140.001
|
|
Guernsey
|
|
OH
|
|
Donald & Joe Lucas
|
|
Lease
|
|
05/13/2010
|
|
OR 471 – 738
|
|
Guernsey B-8
|
|
17-0000319
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17-0000233
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17-0000271
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Guernsey
|
|
OH
|
|
Carol & Donald Lucas
|
|
Lease
|
|
05/13/2010
|
|
OR 471 – 734
|
|
Guernsey B-9
|
|
17-0000100
|
|
Harrison
|
|
OH
|
|
Cravat Coal
|
|
Deed
|
|
04/16/2007
|
|
OR 171 – 135
|
|
Harrison A-1
|
|
26-0000285.000
|
|
|
|
|
|
(Whlg Valley)
|
|
|
|
|
|
|
|
|
|
26-0000014.000
|
|
|
|
|
|
(Capstone)
|
|
|
|
|
|
|
|
|
|
26-1000001.333
|
|
|
|
|
|
(Mercer)
|
|
|
|
|
|
|
|
|
|
25-0000119.000
|
|
|
|
|
|
(Satterfield)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Bedway Land)
|
|
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
R&F Coal
|
|
Deed
|
|
12/27/2000
|
|
OR 75 – 813
|
|
Harrison A-2
|
|
02-0000281.000
|
|
Harrison
|
|
OH
|
|
Consolidation Coal
|
|
Deed
|
|
05/30/2002
|
|
OR 127 – 39
|
|
Harrison A-3
|
|
04-0000022.000
|
|
Harrison
|
|
OH
|
|
Consolidation Coal
|
|
Deed
|
|
12/28/1999
|
|
OR 75 – 816
|
|
Harrison A-4
|
|
Multiple
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(see document)
|
|
Harrison
|
|
OH
|
|
Nelson Mast
|
|
Deed
|
|
05/29/2003
|
|
OR 139 – 228
|
|
Harrison A-5
|
|
04-0000004.000
|
|
Harrison
|
|
OH
|
|
Budzik
|
|
Deed
|
|
11/01/2001
|
|
OR 107 - 730
|
|
Harrison A-6
|
|
04-0000010.000
|
|
Harrison
|
|
OH
|
|
Consolidation Coal
|
|
Deed
|
|
07/30/2002
|
|
OR 121 – 426
|
|
Harrison A-7
|
|
04-0000406.000
|
|
|
|
|
|
(July 2002
|
|
|
|
|
|
|
|
|
|
04-0000412.000
|
|
|
|
|
|
transaction)
|
|
|
|
|
|
|
|
|
|
04-0000407.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
04-0000168.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
04-0000170.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
04-0000172.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
04-0000167.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
04-0000171.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
04-0000166.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
(not certified – see
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Harrison
|
|
OH
|
|
Cravat Coal
|
|
Deed
|
|
08/01/2008
|
|
OR 177 – 344
|
|
Harrison A-8
|
|
04-0000553.000
|
|
|
|
|
|
(Cadiz Office)
|
|
Corrective Deed
|
|
08/18/2008
|
|
OR 177 – 1332
|
|
|
|
04-0000387.000
|
|
Harrison
|
|
OH
|
|
Consolidation Coal
|
|
Deed
|
|
03/31/2009
|
|
OR 180 - 317
|
|
Harrison A-9
|
|
02-0000366.001
|
|
|
|
|
|
(County Road 29)
|
|
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Bruner Land
|
|
Deed
|
|
11/21/2003
|
|
OR 149 – 438
|
|
Harrison A-10
|
|
02-0000181.004
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
02-0000181.005
|
|
Harrison
|
|
OH
|
|
Buckeye
|
|
Deed
|
|
05/08/2008
|
|
OR 176 – 399
|
|
Harrison A-11
|
|
01-0000350.000
|
|
|
|
|
|
Management
|
|
|
|
|
|
|
|
|
|
01-0000431.000
|
|
|
|
|
|
(Sandy Ridge)
|
|
|
|
|
|
|
|
|
|
01-0000432.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
01-0000433.000
|
|
Harrison
|
|
OH
|
|
Consolidation
|
|
Powerline Right of Way
|
|
12/01/2008
|
|
OR 178 – 1400
|
|
Harrison A-12
|
|
(see document)
|
|
|
|
|
|
Coal/Harrison
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Resources
|
|
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Capstone
|
|
Lease
|
|
06/19/2001
|
|
OR 104 – 662
|
|
Harrison B-1
|
|
(see document)
|
|
|
|
|
|
(Martin #8)
|
|
Addendum
|
|
03/15/2002
|
|
unrecorded
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Capstone/Bedway
|
|
Lease
|
|
06/19/2001
|
|
OR 104 – 673
|
|
Harrison B-2
|
|
(see document)
|
|
|
|
|
|
(Martin Area)
|
|
(77-386)
|
|
03/15/2002
|
|
unrecorded
|
|
|
|
|
|
|
|
|
|
|
|
1
st
Addendum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(77-553)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2
nd
Addendum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(102-569)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sublease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sublease Add
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3
rd
Addendum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(167-2411)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Harrison
|
|
OH
|
|
Liggett Enterprises
|
|
Lease
|
|
01/31/2001
|
|
OR 98 – 327
|
|
Harrison B-3
|
|
04-0000231.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
04-0000229.000
|
|
Harrison
|
|
OH
|
|
Capstone
|
|
Master Lease &
|
|
12/20/2002
|
|
OR 159 – 2121
|
|
Harrison B-4
|
|
(see document)
|
|
|
|
|
|
(Branson Ridge)
|
|
Sublease
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
The Conservation Fund
|
|
Lease
|
|
06/27/2002
|
|
OR 171 – 393
|
|
Harrison B-5
|
|
(see document)
|
|
|
|
|
|
(Cravat)
|
|
(128-788)
|
|
04/16/2007
|
|
|
|
|
|
|
|
|
|
|
|
(Jockey Hollow)
|
|
Corrective
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(157-1104)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Part. Assign
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(158-604)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Bowers
|
|
Lease
|
|
04/16/2007
|
|
OR 171 – 393
|
|
Harrison B-5
|
|
26-0000010.000
|
|
|
|
|
|
(Cravat)
|
|
(159-2384)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Whlg Valley)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Bowers
|
|
Lease
|
|
04/16/2007
|
|
OR 171 – 393
|
|
Harrison B-5
|
|
26-0000009.000
|
|
|
|
|
|
(Whlg Valley)
|
|
(159-2389)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Slater
|
|
Lease
|
|
02/09/2004
|
|
OR 152 – 890
|
|
Harrison B-6
|
|
(see document)
|
|
Harrison
|
|
OH
|
|
Love
|
|
Lease
|
|
08/13/2003
|
|
OR 146 – 881
|
|
Harrison B-7
|
|
02-0000268.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
04-0000234.000
|
|
Harrison
|
|
OH
|
|
Dodds
|
|
Lease
|
|
05/31/2005
|
|
OR 161 – 1041
|
|
Harrison B-8
|
|
04-00630.000
|
|
Harrison
|
|
OH
|
|
Beer
|
|
Lease
|
|
05/13/2004
|
|
OR 155 – 1555
|
|
Harrison B-9
|
|
04-0000577.002
|
|
Harrison
|
|
OH
|
|
Cobb
|
|
Lease
|
|
12/28/2004
|
|
OR160 – 593
|
|
Harrison B-10
|
|
04-00261.001
|
|
|
|
|
|
(Consol
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ruckstuhl)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Harrison
|
|
OH
|
|
Capstone
|
|
Lease
|
|
04/03/2003
|
|
OR 135 – 119
|
|
Harrison B-11
|
|
Unknown
|
|
|
|
|
|
(Polen)
|
|
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Lopez
|
|
Lease
|
|
11/22/2004
|
|
OR 158 – 1036
|
|
Harrison B-12
|
|
04-00261.001
|
|
|
|
|
|
(Consol
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ruckstuhl)
|
|
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Capstone
|
|
Lease
|
|
11/16/2001
|
|
OR 111 – 37
|
|
Harrison B-13
|
|
04-0000010.000
|
|
|
|
|
|
(Budzik-Barricklow)
|
|
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Barricklow
|
|
Lease
|
|
01/31/2001
|
|
OR 98 – 331
|
|
Harrison B—14
|
|
04-0000010.000
|
|
|
|
|
|
(Budzik-Barricklow)
|
|
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Consolidation Coal
|
|
Lease
|
|
|
|
OR 121 – 131
|
|
Harrison B-15
|
|
(see document)
|
|
|
|
|
|
(Ruckstuhl)
|
|
(Ruckstuhl)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Haverfield)
|
|
(34-115)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(MacDowell)
|
|
(35-162)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Part. Release
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(158-1031)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Part. Release
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(160-599)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Haverfield)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(34-171)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(34-191)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(MacDowell)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(35-561)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(35-203)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
(not certified – see
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Harrison
|
|
OH
|
|
R&F Coal
|
|
Lease
|
|
11/16/1998
|
|
OR 61 – 443
|
|
Harrison B-16
|
|
Multiple
|
|
|
|
|
|
(Daron)
|
|
1
st
,
|
|
|
|
OR 84 – 18
|
|
Harrison B-17
|
|
(see documents)
|
|
|
|
|
|
|
|
2
nd
and
|
|
|
|
OR 110 – 105
|
|
Harrison B-18
|
|
|
|
|
|
|
|
|
|
3
rd
Addendums
|
|
|
|
(not recorded)
|
|
|
|
|
|
|
|
|
|
|
|
4
th
Addendum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5
th
Addendum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Trench & Auger)
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Twin Minerals
|
|
Lease
|
|
01/01/1999
|
|
OR 84 – 26
|
|
Harrison B-19
|
|
Multiple
|
|
|
|
|
|
(Daron)
|
|
1
st
and
|
|
—
|
|
OR 84 – 38
|
|
Harrison B-20
|
|
(see document)
|
|
|
|
|
|
|
|
2
nd
Addendums
|
|
—
|
|
OR 172 – 2240
|
|
Harrison B-21
|
|
|
|
|
|
|
|
|
|
3
rd
Addendum
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
LPT Management
|
|
Lease
|
|
05/27/2003
|
|
OR 173 – 2523
|
|
Harrison B-22
|
|
04-00012.001
|
|
Harrison
|
|
OH
|
|
Chambers Development
|
|
Lease
|
|
09/21/2001
|
|
OR 176 – 1970
|
|
Harrison B-23
|
|
(see document)
|
|
Harrison
|
|
OH
|
|
Consolidation Coal
|
|
Lease
|
|
03/31/2009
|
|
OR 180 – 278
|
|
Harrison B-24
|
|
02-0000261.000
|
|
|
|
|
|
(County Rd 29)
|
|
(58-237)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
The Conservation Fund
|
|
Lease
|
|
04/03/2009
|
|
OR 179 – 2596
|
|
Harrison B-25
|
|
22-0000219.000
|
|
|
|
|
|
(Lewis)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
(not certified – see
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Harrison
|
|
OH
|
|
Holmes Limestone
|
|
Lease
|
|
06/22/2005
|
|
OR 161–1284
|
|
Harrison B-26
|
|
Multiple
|
|
|
|
|
|
(PPG & KLM)
|
|
Sublease
|
|
|
|
OR 177 – 2343
|
|
Harrison B-27
|
|
(see document)
|
|
|
|
|
|
|
|
(161-1291)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease Amend
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sublease Add
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(177-2372)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sublease Add
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(179-2091)
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Wm. Henderson
|
|
Lease
|
|
03/19/2010
|
|
OR 182 – 2925
|
|
Harrison B-28
|
|
04-0000557.000
|
|
|
|
|
|
(Haverfield)
|
|
|
|
|
|
|
|
|
|
04-0000197.000
|
|
Harrison
|
|
OH
|
|
The Conservation Fund
|
|
Lease
|
|
05/12/2008
|
|
OR 176 – 650
|
|
Harrison B-29
|
|
(see document)
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
(160-1321)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Douglas Turn)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(170-2806)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Ionno & Miller
|
|
Lease
|
|
05/12/2008
|
|
OR 176 – 650
|
|
Harrison B-29
|
|
(see document)
|
|
|
|
|
|
(Stallion Farms)
|
|
(170-2144)
|
|
11/04/2008
|
|
OR 178 – 1319
|
|
Harrison B-30
|
|
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
Assignment
|
|
02/16/2010
|
|
OR 182 – 1948
|
|
Harrison B-31
|
|
|
|
|
|
|
|
(Elk Run)
|
|
(170-2806)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Addendum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Addendum
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
The Conservation Fund
|
|
Lease
|
|
05/12/2008
|
|
OR 176 – 650
|
|
Harrison B-29
|
|
(see document)
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
(165-276)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Elk Run)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9170-2806)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
(not certified – see
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
document & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Harrison
|
|
OH
|
|
Brian Lewis
|
|
Lease
|
|
05/12/2008
|
|
OR 176 – 650
|
|
Harrison B-29
|
|
17-0000109.016
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
(166-2843)
|
|
|
|
|
|
|
|
22-0000038.000
|
|
|
|
|
|
(Elk Run)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(170-2806)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Hochstetler
|
|
Lease
|
|
05/12/2008
|
|
OR 176 – 650
|
|
Harrison B-29
|
|
Multiple
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
(166-2824)
|
|
|
|
|
|
|
|
(see document)
|
|
|
|
|
|
(Sandy Ridge)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(170-2806)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Diebel
|
|
Lease
|
|
05/12/2008
|
|
OR 176 – 650
|
|
Harrison B-29
|
|
30-0000803.000
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
(166-2847)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Tippecanoe)
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(170-2806)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Weppler
|
|
Lease
|
|
05/12/2008
|
|
OR 176 – 650
|
|
Harrison B-29
|
|
30-0000294.000
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
(166-2821)
|
|
|
|
|
|
|
|
30-0000295.000
|
|
|
|
|
|
(Tippecanoe)
|
|
Assignment
|
|
|
|
|
|
|
|
30-0000293.000
|
|
|
|
|
|
|
|
(170-2806)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Puskarich
|
|
Lease
|
|
05/12/2008
|
|
OR 176 – 650
|
|
Harrison B-29
|
|
17-0000075.000
|
|
|
|
|
|
(Cravat/Buckeye)
|
|
(170-2135)
|
|
|
|
|
|
|
|
17-0000090.000
|
|
|
|
|
|
(Douglas Turn)
|
|
Assignment
|
|
|
|
|
|
|
|
17-0000067.000
|
|
|
|
|
|
|
|
(170-2806)
|
|
|
|
|
|
|
|
17-0000091.000
|
|
|
|
|
|
|
|
Assignment
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Capstone
|
|
Lease
|
|
03/31/2009
|
|
OR 183 – 1961
|
|
Harrison B-32
|
|
02-0000242.000
|
|
|
|
|
|
(Gasline)
|
|
|
|
|
|
|
|
|
|
02-0000231.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Harrison
|
|
OH
|
|
Capstone
|
|
Lease
|
|
03/01/2010
|
|
OR 183 – 1638
|
|
Harrison B-33
|
|
04-0000160.000
|
|
|
|
|
|
(Limestone Plant)
|
|
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Capstone
|
|
Lease
|
|
03/01/2010
|
|
OR 183 – 1643
|
|
Harrison B-34
|
|
04-0000160.000
|
|
|
|
|
|
(Coal Stockpile)
|
|
|
|
|
|
|
|
|
|
|
|
Harrison
|
|
OH
|
|
Liggett
|
|
Lease
|
|
04/26/2001
|
|
OR 97 – 865
|
|
Harrison B-35
|
|
(see document)
|
|
Jefferson
|
|
OH
|
|
Boich & Sovell
|
|
Deed
|
|
03/06/2006
|
|
OR 746 – 947
|
|
Jefferson A-1
|
|
50-00053.000
|
|
Jefferson
|
|
OH
|
|
Moore
|
|
Deed
|
|
03/5,6,7,10/2006
|
|
OR 769 – 431
|
|
Jefferson A-2
|
|
50-00599.000
|
|
|
|
|
|
|
|
|
|
08/19/2006
|
|
|
|
|
|
|
|
Jefferson
|
|
OH
|
|
Hutchison
|
|
Lease
|
|
12/28/2004
|
|
OR 681 – 875
|
|
Jefferson B-1
|
|
15-02383.000
|
|
|
|
|
|
Ragsdale
|
|
Addendum
|
|
11/25/2009
|
|
OR 898 – 904
|
|
Jefferson B-2
|
|
|
|
Jefferson
|
|
OH
|
|
Boich
|
|
Lease
|
|
11/07/2005
|
|
OR 731 – 789
|
|
Jefferson B-3
|
|
50-01431.000
|
|
|
|
|
|
(McCain)
|
|
(59-876)
|
|
|
|
|
|
|
|
50-01431.001
|
|
|
|
|
|
|
|
Sublease
|
|
|
|
|
|
|
|
50-01432.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50-00613.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50-01384.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50-01443.000
|
|
Jefferson
|
|
OH
|
|
Joseph Ellis
|
|
Lese
|
|
03/02/2007
|
|
OR 796 – 642
|
|
Jefferson B-4
|
|
50-00264.000
|
|
Jefferson
|
|
OH
|
|
Fern Ellis
|
|
Lease
|
|
12/20/2002
|
|
OR 535 – 897
|
|
Jefferson B-5
|
|
50-00262.000
|
|
|
|
|
|
|
|
Addendum
|
|
03/06/2007
|
|
OR 796 – 950
|
|
Jefferson B-6
|
|
50-00263.000
|
|
Jefferson
|
|
OH
|
|
Boich
|
|
Lease
|
|
11/07/2005
|
|
OR 731 – 791
|
|
Jefferson B-7
|
|
(see document)
|
|
Jefferson
|
|
OH
|
|
Harkins
|
|
Lease
|
|
01/13/2006
|
|
OR 735 – 309
|
|
Jefferson B-8
|
|
50-01506.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Jefferson
|
|
OH
|
|
Starvaggi
|
|
Lease
|
|
03/24/2006
|
|
OR 746 – 757
|
|
Jefferson B-9
|
|
(see document)
|
|
|
|
|
|
(McCain)
|
|
|
|
|
|
|
|
|
|
|
|
Jefferson
|
|
OH
|
|
Starvaggi
|
|
Lease
|
|
02/18/2003
|
|
OR 545 – 727
|
|
Jefferson B-10
|
|
(see document)
|
|
|
|
|
|
(Fern Ellis)
|
|
|
|
|
|
|
|
|
|
|
|
Jefferson
|
|
OH
|
|
Zimnox Coal
|
|
Lease
|
|
10/11/2005
|
|
OR 666 – 896
|
|
Jefferson B-11
|
|
50-01042.000
|
|
Jefferson
|
|
OH
|
|
Piergallini
|
|
Lease
|
|
03/02/2007
|
|
OR 796 – 646
|
|
Jefferson B-12
|
|
(see document)
|
|
Jefferson
|
|
OH
|
|
Rush Run
|
|
Lease
|
|
12/19/2006
|
|
OR 785 – 747
|
|
Jefferson B-13
|
|
50-01489.000
|
|
|
|
|
|
(Limestone Hollow)
|
|
|
|
|
|
|
|
|
|
50-01489.001
|
|
Jefferson
|
|
OH
|
|
Eastham
|
|
Lease
|
|
01/08/2007
|
|
OR 788 – 210
|
|
Jefferson B-14
|
|
50-01170.000
|
|
|
|
|
|
(Limestone Hollow)
|
|
|
|
|
|
|
|
|
|
|
|
Jefferson
|
|
OH
|
|
Moore
|
|
Lease
|
|
11/16/2004
|
|
OR 676 – 282
|
|
Jefferson B-15
|
|
50-00592.000
|
|
Jefferson
|
|
OH
|
|
Starvaggi
|
|
Lease
|
|
05/01/2007
|
|
OR 802 – 290
|
|
Jefferson B-16
|
|
(see document)
|
|
|
|
|
|
(Limestone Hollow)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Eastham)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Rush Run)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Pasco)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Pugh)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Lancia)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Verhovec)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Starvaggi)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Jefferson
|
|
OH
|
|
Starvaggi
|
|
Lease
|
|
05/01/2007
|
|
OR 802 – 286
|
|
Jefferson B-17
|
|
(see document)
|
|
|
|
|
|
(Harkins)
|
|
|
|
|
|
|
|
|
|
|
|
Jefferson
|
|
OH
|
|
Pasco
|
|
Lease
|
|
04/26/2007
|
|
OR 804 – 195
|
|
Jefferson B-18
|
|
50-01209.000
|
|
|
|
|
|
(Limestone
|
|
|
|
|
|
|
|
|
|
50-00360.000
|
|
|
|
|
|
Hollow)
|
|
|
|
|
|
|
|
|
|
50-01471.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50-01472.000
|
|
Jefferson
|
|
OH
|
|
Verhovec
|
|
Lease
|
|
05/24/2007
|
|
OR 805 – 60
|
|
Jefferson B--19
|
|
(see document)
|
|
|
|
|
|
(Limestone Hollow)
|
|
|
|
|
|
|
|
|
|
|
|
Jefferson
|
|
OH
|
|
Jeffco Resources
|
|
Lease
|
|
04/25/2008
|
|
OR 844 – 225
|
|
Jefferson B-20
|
|
50-00694.000
|
|
|
|
|
|
(Wells Twp.)
|
|
|
|
|
|
|
|
|
|
50-00168.000
|
|
|
|
|
|
(Jeffco)
|
|
|
|
|
|
|
|
|
|
50-00693.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50-00163.000
|
|
Jefferson
|
|
OH
|
|
Bedway Land and Minerals
|
|
Lease
|
|
11/26/2008
|
|
OR 868 – 707
|
|
Jefferson B-21
|
|
50-00797.000
|
|
|
|
|
|
(Wells Twp.)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Bedway Land)
|
|
|
|
|
|
|
|
|
|
|
|
Jefferson
|
|
OH
|
|
Lapanja
|
|
Lease
|
|
04/01/2009
|
|
OR 880 – 570
|
|
Jefferson B-22
|
|
50-00507.000
|
|
Jefferson
|
|
OH
|
|
Jennings
|
|
Lease
|
|
05/16/2009
|
|
OR 882 – 960
|
|
Jefferson B-23
|
|
50-01178.000
|
|
Jefferson
|
|
OH
|
|
Bedway
|
|
Lease
|
|
09/12/2001
|
|
OR 886 – 542
|
|
Jefferson B-24
|
|
20-01756.011
|
|
|
|
|
|
(Dairy Jean)
|
|
|
|
|
|
|
|
|
|
|
|
Jefferson
|
|
OH
|
|
Starvaggi (Jeffco,
|
|
Lease
|
|
10/22/2009
|
|
OR 898-895
|
|
Jefferson B-25
|
|
05-00694.000
|
|
|
|
|
|
Jennings, Lapanja)
|
|
|
|
|
|
|
|
|
|
05-00168.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
05-00693.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
05-00163.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50-01178.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50-00507.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Morgan
|
|
OH
|
|
Southhall
|
|
Lease
|
|
05/13/2009
|
|
OR 202 – 1901
|
|
Morgan B-1
|
|
050-008-570-0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
050-008-580-0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
050-008-590-0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
050-008-560-0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
050-008-540-0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
050-008-530-0
|
|
Morgan
|
|
OH
|
|
Kasler
|
|
Lease
|
|
03/23/2009
|
|
OR 202 – 1892
|
|
Morgan B-2
|
|
050-004-320-0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
050-004-290-0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
050-004-300-0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
050-004-250-0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
050-004-310-0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
050-004-860-0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
050-004-870-0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
050-004-840-0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
050-004-850-0
|
|
Muskingum
|
|
OH
|
|
R&F Coal
|
|
Deed
|
|
12/23/1998
|
|
Vol 1151 – 587
|
|
Muskingum A-1
|
|
38-60-02-18-000
|
|
Muskingum
|
|
OH
|
|
American National Can
|
|
Deed
|
|
05/04/1999
|
|
Vol 1155 – 4
|
|
Muskingum A-2
|
|
73-73-03-07-03-000
|
|
Muskingum
|
|
OH
|
|
Peabody Development
|
|
Deed
|
|
01/29/1996
|
|
Vol 1118 – 641
|
|
Muskingum A-3
|
|
38-39-70-01-19-200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
38-38-90-01-06-200
|
|
Muskingum
|
|
OH
|
|
Peabody Coal
|
|
Deed
|
|
10/26/1992
|
|
Vol 1071 – 383
|
|
Muskingum A-4
|
|
Multiple
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(see document)
|
|
Muskingum
|
|
OH
|
|
Barrick Gold
|
|
Deed
|
|
05/24/1999
|
|
Not recorded
|
|
Muskingum A-5
|
|
(see document)
|
|
Muskingum
|
|
OH
|
|
McNeish
|
|
Lease
|
|
12/05/2002
|
|
OR 1716 – 898
|
|
Muskingum B-1
|
|
70-70-06-41-33-000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
70-70-06-41-35-000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Muskingum
|
|
OH
|
|
Holmes Limestone
|
|
Lease
|
|
02/01/2003
|
|
OR 1934 – 933
|
|
Muskingum B-2
|
|
Multiple
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(see document)
|
|
Muskingum
|
|
OH
|
|
Hendershot
|
|
Lease
|
|
03/31/2010
|
|
Vol 2273 – 85
|
|
Muskingum B-3
|
|
70-04-03-16-000
|
|
|
|
|
|
Huston
|
|
|
|
|
|
|
|
|
|
70-04-03-09-000
|
|
Noble
|
|
OH
|
|
Timmons
|
|
Deeds
|
|
02/10/2003
|
|
OR 97 – 588
|
|
Noble A-1
|
|
01-21043.000
|
|
|
|
|
|
|
|
|
|
|
|
and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OR 97 – 592
|
|
|
|
|
|
Noble
|
|
OH
|
|
Wadella
|
|
Deed
|
|
01/15/2004
|
|
OR 108 – 160
|
|
Noble A-2
|
|
01-21078.000
|
|
Noble
|
|
OH
|
|
Mary Reed
|
|
Lease
|
|
03/23/2004
|
|
OR 113 – 454
|
|
Noble B-1
|
|
01-50065.000
|
|
Noble
|
|
OH
|
|
Ann Jones et al
|
|
Lease
|
|
06/21/2002
|
|
OR 87 – 821
|
|
Noble B-2
|
|
01-21448.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
01-21449.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
01-30101.000
|
|
Noble
|
|
OH
|
|
Darrell Long
|
|
Lease
|
|
03/26/2003
|
|
OR 97 – 544
|
|
Noble B-3
|
|
01-50074.000
|
|
Noble
|
|
OH
|
|
David Reed
|
|
Lease
|
|
01/23/2004
|
|
OR 108 – 841
|
|
Noble B-4
|
|
01-21079.001
|
|
Noble
|
|
OH
|
|
Capstone
|
|
Master Lease &
|
|
12/02/2002
|
|
OR 122 – 194
|
|
Noble B-5
|
|
(see document)
|
|
|
|
|
|
(Long Hall)
|
|
Sublease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Shuman)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Long LaFever)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Long Sears)
|
|
|
|
|
|
|
|
|
|
|
|
Noble
|
|
OH
|
|
Capstone
|
|
Master Lease &
|
|
120/02/2002
|
|
OR 122 - 173
|
|
Noble B-6
|
|
(see document)
|
|
|
|
|
|
(Gibson)
|
|
Sublease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(King Crum)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Noble
|
|
OH
|
|
David Reed
|
|
Lease
|
|
07/11/2008
|
|
OR 157 – 670
|
|
Noble B-7
|
|
01-50008.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
01-21039.000
|
|
Noble
|
|
OH
|
|
Gadd/Slevin
|
|
Lease
|
|
02/06/2009
|
|
OR 162 – 910
|
|
Noble B-8
|
|
01-21042.000
|
|
Noble
|
|
OH
|
|
Capstone
|
|
Lease
|
|
01/25/2010
|
|
OR 174 – 267
|
|
Noble B-9
|
|
(see document)
|
|
|
|
|
|
(Haul Road
|
|
|
|
and
|
|
|
|
|
|
|
|
|
|
|
|
Agreement)
|
|
|
|
02/16/2010
|
|
|
|
|
|
|
|
Perry
|
|
OH
|
|
Leighton
|
|
Deed
|
|
05/29/2007
|
|
OR 344 – 426
|
|
Perry A-1
|
|
003-000458-0200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
003-000303-0000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
003-000284-000
|
|
Perry
|
|
OH
|
|
Owen
|
|
Deed
|
|
09/07/2005
|
|
OR 325 – 1721
|
|
Perry A -2
|
|
003-000365-0500
|
|
Perry
|
|
OH
|
|
Perry County
|
|
Deed
|
|
09/07/2005
|
|
OR 325 – 1719
|
|
Perry A -3
|
|
(see document)
|
|
|
|
|
|
Industrial
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Development
|
|
|
|
|
|
|
|
|
|
|
|
Perry
|
|
OH
|
|
Ponsart
|
|
Deed
|
|
09/01/2006
|
|
OR 336 – 2620
|
|
Perry A -4
|
|
003-000296-0500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
003-000303-0204
|
|
Perry
|
|
OH
|
|
Wooten
|
|
Deed
|
|
08/24/2005
|
|
OR 325 – 552
|
|
Perry A -5
|
|
003-000296-0600
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
003-000303-0100
|
|
Perry
|
|
OH
|
|
Masterson
|
|
Deed
|
|
07/02/2004
|
|
OR 311 – 2523
|
|
Perry A -6
|
|
003-000229-0000
|
|
Perry
|
|
OH
|
|
Bieber
|
|
Deed
|
|
06/04/1998
|
|
OR 209 – 800
|
|
Perry A -7
|
|
024-000-383-0000
|
|
Perry
|
|
OH
|
|
Jorgenson
|
|
Deed
|
|
03-29/2002
|
|
OR 280 – 28
|
|
Perry A -8
|
|
003-000216-0000
|
|
Perry
|
|
OH
|
|
Branham
|
|
Deed
|
|
03/29/2002
|
|
OR 279 – 2522
|
|
Perry A -9
|
|
003-000360-0400
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Perry
|
|
OH
|
|
Harris/Leroy
|
|
Deed
|
|
04/14/2005
|
|
OR 320 – 2062
|
|
Perry A -10
|
|
008-000003-0000
|
|
Perry
|
|
OH
|
|
Peabody
|
|
Deed
|
|
03/26/1998
|
|
OR 204 – 575
|
|
Perry A -11
|
|
008-000003-0000
|
|
Perry
|
|
OH
|
|
Halsey
|
|
Deed
|
|
07/08/2005
|
|
OR 323 – 858
|
|
Perry A -12
|
|
003-000382-0000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
003-000386-0000
|
|
Perry
|
|
OH
|
|
Essington
|
|
Deed
|
|
01/19/2001
|
|
OR 265 – 1596
|
|
Perry A -13
|
|
007-000160-0000
|
|
Perry
|
|
OH
|
|
Reed
|
|
Deed
|
|
08/28/1998
|
|
OR 216 – 244
|
|
Perry A -14
|
|
008-000009-000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
007-000623-0000
|
|
Perry
|
|
OH
|
|
Hoops/Woltz
|
|
Deed
|
|
08/27/1998
|
|
OR 222 – 343
|
|
Perry A -15
|
|
003-000468-000
|
|
|
|
|
|
|
|
|
|
09/10/1998
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
09/16/1998
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/02/1998
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/28/1998
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11/20/1998
|
|
|
|
|
|
|
|
Perry
|
|
OH
|
|
Fisher
|
|
Deed
|
|
08/22/2005
|
|
OR 325 – 692
|
|
Perry A -16
|
|
003-000303-0105
|
|
Perry
|
|
OH
|
|
Rose Jr
|
|
Deed
|
|
06/24/2002
|
|
OR 283 – 725
|
|
Perry A -17
|
|
007-000600-0101
|
|
Perry
|
|
OH
|
|
Rose Sr
|
|
Deed
|
|
05/06/2003
|
|
OR 295 – 1279
|
|
Perry A -18
|
|
007-000600-0100
|
|
Perry
|
|
OH
|
|
John Rose
|
|
Deed
|
|
06/14/2004
|
|
OR 311 – 546
|
|
Perry A -19
|
|
003-000123.0000
|
|
Perry
|
|
OH
|
|
Humphrey
|
|
Deed
|
|
05/21/1999
|
|
OR 236 – 782
|
|
Perry A -20
|
|
003-000411-0000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Perry
|
|
OH
|
|
Kiester
|
|
Deed
|
|
03/22/2000
|
|
OR 258 – 251
|
|
Perry A -21
|
|
003-000194-0000
|
|
Perry
|
|
OH
|
|
Black
|
|
Deed
|
|
05/05/2009
|
|
OR 361 – 583
|
|
Perry A -22
|
|
003-000303-0102
|
|
Perry
|
|
OH
|
|
Cowgill
|
|
Deed
|
|
09/11/2009
|
|
OR 363 – 2485
|
|
Perry A -23
|
|
003-000284-0104
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
003-000303-0108
|
|
Perry
|
|
OH
|
|
Sipe
|
|
Deed
|
|
05/28/2010
|
|
OR 369 – 665
|
|
Perry A -24
|
|
003-000289-0000
|
|
Perry
|
|
OH
|
|
Peabody Development
|
|
Deed
|
|
06/24/1996
|
|
OR 166 – 428
|
|
Perry A -25
|
|
(see document)
|
|
Perry
|
|
OH
|
|
Fisher
|
|
Deed
|
|
02/01/2010
|
|
OR 367 – 52
|
|
Perry A -26
|
|
003-000303-0101
|
|
Perry
|
|
OH
|
|
Woltz
|
|
Deed
|
|
01/06/1998
|
|
OR 197 – 441
|
|
Perry A -27
|
|
003-000468-0000
|
|
Perry
|
|
OH
|
|
Johnson
|
|
Deed
|
|
03/09/2006
|
|
OR 331 – 931
|
|
Perry A -28
|
|
(see document)
|
|
Perry
|
|
OH
|
|
Foraker Heirs, LLC
|
|
Deed
|
|
10/12/2004
|
|
OR 315 – 84
|
|
Perry A -29
|
|
007-000186-000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
007-000184-0000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
007-000185-000
|
|
Perry
|
|
OH
|
|
Jude
|
|
Deed
|
|
01/21/2010
|
|
OR 366 – 2230
|
|
Perry A -30
|
|
003-000233-0000
|
|
Perry
|
|
OH
|
|
Jude
|
|
Deed
|
|
01/21/2010
|
|
OR 366 – 2233
|
|
Perry A -31
|
|
003-000303-0200
|
|
Perry
|
|
OH
|
|
Steen
|
|
Deed
|
|
02/02/2010
|
|
OR 367 – 48
|
|
Perry A -32
|
|
003-000235.0000
|
|
Perry
|
|
OH
|
|
Marion
|
|
Deed
|
|
02/25/2010
|
|
OH 367 – 1039
|
|
Perry A -33
|
|
030-000303-0107
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Perry
|
|
OH
|
|
McCauley
|
|
Deed
|
|
02/01/2010
|
|
OR 367 - 38
|
|
Perry A -34
|
|
003-000284.0200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
003-000284-0300
|
|
Perry
|
|
OH
|
|
Peabody
|
|
Deed
|
|
06/28/2007
|
|
OR 345 - 297
|
|
Perry A -35
|
|
(see document)
|
|
|
|
|
|
(#5 & #6 coal)
|
|
|
|
|
|
|
|
|
|
|
|
Perry
|
|
OH
|
|
Peabody Development
|
|
Deed
|
|
09/30/1993
|
|
OR 110 - 88
|
|
Perry A -36
|
|
(see document)
|
|
Perry
|
|
OH
|
|
Fister
|
|
Lease
|
|
06/11/2007
|
|
OR 344 – 2046
|
|
Perry B-1
|
|
003-000296-0000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
003-000296-0000
|
|
Perry
|
|
OH
|
|
Arnold
|
|
Lease
|
|
02/16/2008
|
|
OR 352 – 2637
|
|
Perry B-2
|
|
003-000284-0101
|
|
Perry
|
|
OH
|
|
Johnson/Rambo
|
|
Lease
|
|
02/19/2007
|
|
OR 341 – 2102
|
|
Perry B-3
|
|
007-000573-0000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
007-000573-0100
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
007-000575-0000
|
|
Perry
|
|
OH
|
|
McCauley
|
|
Lease
|
|
03/17/2000
|
|
OR 257 – 2634
|
|
Perry B-4
|
|
(see document)
|
|
Perry
|
|
OH
|
|
Z-Mak Enterprises
|
|
Lease
|
|
07/05/1994
|
|
OR 123 – 393
|
|
Perry B-5
|
|
(see document)
|
|
Perry
|
|
OH
|
|
Cowgill
|
|
Lease
|
|
09/11/2009
|
|
OR 363 – 2489
|
|
Perry B-6
|
|
(pt) 003-000284-0102
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(pt) 003-000303-0103
|
|
Perry
|
|
OH
|
|
McCauley
|
|
Agreement
|
|
05/15/2010
|
|
OR 369 – 170
|
|
Perry B-7
|
|
(see document)
|
|
Stark
|
|
OH
|
|
Holmes Limestone
|
|
Lease
|
|
08-24-2004
|
|
200503180016636
|
|
Stark B-1
|
|
Multiple
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Holmes Limestone
|
|
Deed
|
|
04/01/2005
|
|
OR 1184 – 1331
|
|
Tuscarawas A-1
|
|
16-00756.000
|
|
Tuscarawas
|
|
OH
|
|
Creighton
|
|
Deed
|
|
02/25/2008
|
|
OR 1278 – 1695
|
|
Tuscarawas A-2
|
|
71-00162.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
71-00160.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
71-00161.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Tuscarawas
|
|
OH
|
|
Berlin Mineral
|
|
Deed
|
|
07/17/2006
|
|
OR 1238 – 2127
|
|
Tuscarawas A-3
|
|
07-00502.000
|
|
Tuscarawas
|
|
OH
|
|
Robt Linard
|
|
Deed
|
|
07/02/2009
|
|
OR 1310 – 580
|
|
Tuscarawas A-4
|
|
16-00514.000
|
|
|
|
|
|
(water rights)
|
|
|
|
|
|
|
|
|
|
|
|
Tuscarawas
|
|
OH
|
|
Mizer
|
|
Lease
|
|
03/03/2004
|
|
OR 1144 – 590
|
|
Tuscarawas B-1
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Beach
|
|
Lease
|
|
06/03/2004
|
|
OR 1157 – 1652
|
|
Tuscarawas B-2
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Keffer
|
|
Lease
|
|
06/03/2004
|
|
OR 1157 – 1651
|
|
Tuscarawas B-3
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Holmes Limestone
|
|
Lease
|
|
06/22/2005
|
|
OR 1194 – 2066
|
|
Tuscarawas B-4
|
|
(see document)
|
|
|
|
|
|
|
|
Sublease
|
|
08/12/2008
|
|
OR 1293 – 607
|
|
Tuscarawas B-5
|
|
|
|
|
|
|
|
|
|
(1194-2072)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease Amend
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sublease Amend
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1293-636)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sublease Amend
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1306-238)
|
|
|
|
|
|
|
|
|
|
Tuscarawas
|
|
OH
|
|
Tusco Land
|
|
Lease
|
|
10-23-2007
|
|
OR 1269 – 2011
|
|
Tuscarawas B-6
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Ankrom
|
|
Lease
|
|
01-17-2006
|
|
OR 1269 – 2014
|
|
Tuscarawas B-7
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Ault
|
|
Lease
|
|
10-23-2007
|
|
OR 1269 – 2010
|
|
Tuscarawas B-8
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Glauser
|
|
Lease
|
|
10/23/2007
|
|
OR 1269 – 2009
|
|
Tuscarawas B-9
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Horn
|
|
Lease
|
|
10/22/2006
|
|
OR 1269 – 2012
|
|
Tuscarawas B-10
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Mizer
|
|
Lease
|
|
06/24/2005
|
|
OR 1269 – 2015
|
|
Tuscarawas B-11
|
|
(see document)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Tuscarawas
|
|
OH
|
|
Cantrell
|
|
Lease
|
|
10/30/2007
|
|
OR 1270 – 1582
|
|
Tuscarawas B-12
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Bau
|
|
Lease
|
|
11/01/2007
|
|
OR 1270 – 1584
|
|
Tuscarawas B-13
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Welch Brothers
|
|
Lease
|
|
05/05/2008
|
|
OR 1283 – 847
|
|
Tuscarawas B-14
|
|
51-00359.000
|
|
Tuscarawas
|
|
OH
|
|
Crossman
|
|
Lease
|
|
01/11/2008
|
|
OR 1275 – 202
|
|
Tuscarawas B-15
|
|
51-00568.000
|
|
Tuscarawas
|
|
OH
|
|
Kyle Limited Partnership
|
|
Lease
|
|
12/23/2008
|
|
OR 1298 – 415
|
|
Tuscarawas B-16
|
|
07-00529.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
07-00530.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
07-00531.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
07-00528.000
|
|
Tuscarawas
|
|
OH
|
|
Van Fossen
|
|
Lease
|
|
12/30/2008
|
|
OR 1298 – 414
|
|
Tuscarawas B-17
|
|
48-00531.000
|
|
|
|
|
|
|
|
Re-recorded
|
|
|
|
OR 1301 – 1668
|
|
|
|
48-00532.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
48-00533.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
48-00534.000
|
|
Tuscarawas
|
|
OH
|
|
Tusco Land
|
|
Lease
|
|
02/24/2004
|
|
OR 1144 – 589
|
|
Tuscarawas B-18
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Kopka
|
|
Lease
|
|
05/21/2010
|
|
OR 1331 - 1246
|
|
Tuscarawas B-19
|
|
71-00366.000
|
|
Tuscarawas
|
|
OH
|
|
Frink
|
|
Lease
|
|
05/21/2010
|
|
OR 1331 - 1241
|
|
Tuscarawas B-20
|
|
71-00958.000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
71-00960.001
|
|
Tuscarawas
|
|
OH
|
|
Holmes Limestone
|
|
Lease
|
|
03/19/2010
|
|
OR 1327 – 593
|
|
Tuscarawas B-21
|
|
(see document)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage
|
|
Tax Parcel Number(s)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
(not certified – see
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Document Date
|
|
Recording Data
|
|
Attachment
|
|
document & tax records)
|
|
Tuscarawas
|
|
OH
|
|
Penn-Ohio
|
|
Lease
|
|
02/15/2006
|
|
OR 1270 – 1022
|
|
Tuscarawas B-22
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Penn-Ohio
|
|
Sublease
|
|
04/23/2010
|
|
OR 1329 – 605
|
|
Tuscarawas B-23
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Mutti
|
|
Lease
|
|
10/23/2007
|
|
OR 1269 – 2013
|
|
Tuscarawas B-24
|
|
(see document)
|
|
Tuscarawas
|
|
OH
|
|
Shinaberry
|
|
Lease
|
|
10/22/2007
|
|
OR 1269 – 2008
|
|
Tuscarawas B-25
|
|
(see document)
|
|
Brooke
|
|
WV
|
|
Goodman
|
|
Lease
|
|
03/26/2004
|
|
Bk 307 – 255
|
|
Brooke B-1
|
|
(see document)
|
|
Brooke
|
|
WV
|
|
Starvaggi
|
|
Lease
|
|
02/19/2003
|
|
Bk 306 – 129
|
|
Brooke B-2
|
|
(see document)
|
|
Washington
|
|
PA
|
|
Phoenix
|
|
Lease
|
|
08/07/2007
|
|
200727420
|
|
Washington B-1
|
|
380-008-00-00-0016-00
|
|
|
|
|
|
Greenlawn
|
|
|
|
|
|
|
|
|
|
|
|
Washington
|
|
PA
|
|
Starvaggi
|
|
Lease
|
|
11/05/2007
|
|
200731037
|
|
Washington B-2
|
|
380-008-00-00-0016-00
|
|
|
|
|
|
(Phoenix Greenlawn)
|
|
|
|
|
|
|
|
|
|
|
|
Washington
|
|
PA
|
|
Starvaggi
|
|
Lease and
|
|
02/27/2003
|
|
200810189
|
|
Washington B-3
|
|
380-014-00-00-0004-00
|
|
|
|
|
|
(PA & WV)
|
|
Addendum
|
|
|
|
|
|
|
|
380-014-00-00-005-00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
380-014-00-00-006-00
|
Notes:
|
|
1.
|
|
Mortgagor is the fee owner of all real estate except real estate noted as “Lease,”
“Lease and Addendum,” “Assignment of Leases,” “Sublease” or “Assignment of Sublease” in
the column captioned “Type of Acquisition.”
|
|
|
|
|
2.
|
|
Identified Exhibits for legal descriptions of properties located in County and State of
recording are attached to the counterpart of this Supplement being recorded in such County
and State of recording.
|
|
|
|
|
3.
|
|
Identified Exhibits for legal descriptions of properties located in County or State
other than County and State of recording are intentionally omitted from the counterpart of
this Supplement being recorded in such County and State of recording
|
EXCEPTING from the above identified properties the following premises:
Athens County, Ohio
None
Belmont County, Ohio
|
|
1.
|
|
0.780 acre (in one or more parcels) conveyed by Oxford Mining Company to Jean A. Powers
and Harding C. Powers by deed dated January 20, 2000 and recorded in
Belmont County
Deed Volume 754, Page 775
. Prior Instrument Reference: D.V. 744, Page 258 (Belmont
Exhibit A-15 herein).
|
|
|
|
|
2.
|
|
17 +/- acres (in one or more parcels) conveyed by Oxford Mining Company to Capstone
Holding Company by deed dated December 16, 1999 and recorded in
Belmont County Deed
Volume 759, Page 460
. Prior Instrument Reference: D.V. 744, Page 258 (Belmont Exhibit
A-15 herein).
|
|
|
|
|
3.
|
|
22 +/- acres (in one or more parcels) conveyed by Oxford Mining Company to Richard M.
Taylor and Jennifer D. Taylor by deed dated September 27, 2000 and recorded in
Belmont
County Deed Volume 761, Page 464
. Prior Instrument Reference: D.V. 744, Page 258
(Belmont Exhibit A-15 herein).
|
|
|
|
|
4.
|
|
10+/- acres (in one or more parcels) conveyed by Oxford Mining Company to Jeffco
Resources, Inc. by deed dated December 5, 2000 and recorded in
Belmont County Deed
Volume 763, Page 562
. Prior Instrument Reference: D.V. 744, Page 258 (Belmont Exhibit
A-15 herein).
|
|
|
5.
|
|
3+/- acres (in one or more parcels) conveyed by Oxford Mining Company to Jeffco
Resources, Inc. by deed dated December 5, 2000 and recorded in
Belmont County Deed
Volume 763, Page 564
. Prior Instrument Reference: D.V. 744, Page 258 (Belmont Exhibit
A-15 herein).
|
|
|
|
|
6.
|
|
7+/- acres (in one or more parcels) conveyed by Oxford Mining Company to Jeffco
Resources, Inc. by deed dated December 5, 2000 and recorded in
Belmont County Deed
Volume 763, Page 566
. Prior Instrument Reference: D.V. 744, Page 258 (Belmont Exhibit
A-15 herein).
|
|
|
|
|
7.
|
|
26+/- acres (in one or more parcels) conveyed by Oxford Mining Company to Jeffco
Resources, Inc. by deed dated December 5, 2000 and recorded in
Belmont County Deed
Volume 763, Page 569
. Prior Instrument Reference: D.V. 744, Page 258 (Belmont Exhibit
A-15 herein).
|
|
|
|
|
8.
|
|
87+/- acres (in one or more parcels) conveyed by Oxford Mining Company to Capstone
Holding Company by deed dated December 11, 2001 and recorded in
Belmont County Deed
Volume 773, Page 359
. Prior Instrument Reference: D.V. 744, Page 258 (Belmont Exhibit
A-15 herein).
|
|
|
|
|
9.
|
|
36+/- acres (in one or more parcels) conveyed by Oxford Mining Company to Lewis G.
Stratton and Wanda F. Stratton by deed dated May 29, 2004 and recorded in
Belmont
County Deed Volume 799, Page 195
. Prior Instrument Reference: D.V.779, Page 868
(Belmont Exhibit A-10 herein).
|
|
|
|
|
10.
|
|
24+/- acres (in one or more parcels) conveyed by Oxford Mining Company to Richard A.
Nowak by deed dated April 5, 2004 and recorded in
Belmont County Deed Volume 800, Page
690
. Prior Instrument Reference: D.V. 788, Page 792 (Belmont Exhibit A-5 herein).
|
|
|
|
|
11.
|
|
24.753 acres (in one or more parcels) conveyed by Oxford Mining Company LLC to Wharton
Sportsmen’s Club by deed dated April 2, 2008 and recorded in
Belmont County Official
Record Volume 151, Page 688
. Prior Instrument Reference: D.V. 744, Page 258 (Belmont
Exhibit A-15 herein).
|
|
|
|
|
12.
|
|
34.33 acres (in one or more parcels) conveyed by Oxford Mining Company LLC to Robert A.
Shugert by deed dated December 4, 2009 and recorded in
Belmont County Official Record
Volume 211, Page 886
. Prior Instrument Reference: D.V. 788, Page 792 (Belmont Exhibit
A-5 herein).
|
|
|
|
|
13.
|
|
200 acres (in one or more parcels) conveyed by Oxford Mining Company LLC to Belmont
County Port Authority by deed dated September 11, 2009 and recorded in
Belmont County
Official Record Volume 201, Page 45
. Prior Instrument Reference: D.V. 744, Page 258
(Belmont Exhibit A-15 herein).
|
Carroll County, Ohio
None
Columbiana County, Oho
None
Coshocton County, Ohio
None
Guernsey County, Ohio
None
Harrison County, Ohio
|
|
14.
|
|
13.772 acres (in one or more parcels) conveyed by Oxford Mining Company to
Consolidation Coal Company by deed dated December 20, 2002 and recorded in
Harrison
County Official Record Volume 134, Page 157
. Prior Instrument Reference: O.R.V. 75,
Page 813 (Harrison Exhibit A-2 herein).
|
Jefferson County, Ohio
None
Muskingum County, Ohio
None
Morgan County, Ohio
None
Noble County, Ohio
None
Perry County, Ohio
|
|
15.
|
|
Several surface parcels conveyed by Oxford Mining Company, Inc. to Tunnell Hill
Reclamation, LLC by Limited Warranty Deed dated April 11, 2005 and recorded in
Perry
County Official Record Volume 324, Page 298
. Prior Instrument Reference: O.R.V. 110,
Page 88 (Perry Exhibit A-36 herein).
|
|
|
|
|
16.
|
|
Several surface parcels conveyed by Oxford Mining Company, Inc. to Tunnell Hill
Reclamation, LLC by Limited Warranty Deed dated December 10, 2006 and recorded in
Perry
County Official Record Volume 340, Page 2021
. Prior Instrument Reference: O.R.V. 323,
Page 858 (Perry Exhibit A-12 herein)
and
O.R.V. 320, Page 2062 (Perry Exhibit A-10
herein)
and
O.R.V. 110, Page 88 (Perry Exhibit A-36 herein).
|
|
|
|
|
17.
|
|
Several mineral parcels (except #5 and #6 coal and mining rights) conveyed by Oxford
Mining Company, Inc. to Tunnell Hill Reclamation, LLC by Limited Warranty Deed dated August
2, 2007 and recorded in
Perry County Official Record Volume 346, Page 2336
. Prior
Instrument Reference: O.R.V. 110, Page 88 (Perry Exhibit A-36 herein)
and
O.R.V.
197, Page 441 (Perry Exhibit A-27 herein)
and
O.R.V. 216, Page 244 (Perry Exhibit
A-14 herein)
and
O.R.V. 265, Page 1596 (Perry Exhibit A-13 herein).
|
|
|
|
|
18.
|
|
1.23 acres (in one or more parcels) conveyed by Oxford Mining Company, Inc., to Charles
E. Rose by Quit Claim Deed dated May 6, 2003 and recorded in
Perry County Official
Record Volume 295, Page 1281
. Prior Instrument References: O.R.V. 110, Page 88 (Perry
Exhibit A-36 herein)
and
O.R.V. 204, Page 575 (Perry Exhibit A-11 herein).
|
|
|
|
|
19.
|
|
51.52 acres and 180.73 acres (in one or more parcels) conveyed by Oxford Mining
Company, Inc. to Charles W. Owen Jr. and Kathy E. Owen by Quit Claim Deed dated January 21,
2005 and recorded in
Perry County Official Record Volume 318, Page 2411
. Prior
Instrument Reference: O.R.V. 110, Page 88 (Perry Exhibit A-36 herein).
|
|
|
|
|
20.
|
|
34.88 acres (in one or more parcels) conveyed by Oxford Mining Company, Inc. to Thomas
H. Johnson, Jr. by Warranty Deed dated March 28, 2005 and recorded in
Perry County
Official Record Volume 320, Page 1446
. Prior Instrument Reference: O.R.V. 110, Page
88 (Perry Exhibit A-36 herein).
|
|
|
|
|
21.
|
|
2.00 acres (in one or more parcels) conveyed by Oxford Mining. Corp. to Barbara L. Hill
by Warranty Deed dated September 18, 2003 and recorded in
Perry County Official Record
Volume 301, Page 2348
. Prior Instrument Reference: O.R.V. 110, Page 88 (Perry Exhibit
A-36 herein).
|
|
|
|
|
22.
|
|
0.36 acre conveyed by Oxford Mining Company to Albert Ervin Butcher and Debra K.
Butcher by Warranty Deed dated July 31, 1997 and recorded in
Perry County Official
Record Volume 188, Page 220
. Prior Instrument Reference: O.R.V. 110, Page 88 (Perry
Exhibit A-36 herein).
|
|
|
23.
|
|
0.36 acre (in one or more parcels) conveyed by Oxford Mining Co. to Richard A. Goodin
by Warranty Deed dated August 13, 1997 and recorded in
Perry County Official Record
Volume 189, Page 788
. Prior Instrument Reference: O.R.V. 110, Page 88 (Perry Exhibit
A-36 herein).
|
|
|
|
|
24.
|
|
5.46 acres (in one or more parcels) conveyed by Oxford Mining Co. to Philip D. Munyan
and Lillian M. Munyan by Warranty Deed dated November 22, 1999 and recorded in
Perry
County Official Record Volume 252, Page 75
. Prior Instrument Reference: O.R.V. 110,
Page 88 (Perry Exhibit A-36 herein).
|
Stark County, Ohio
None
Tuscarawas County, Ohio
None
Pennsylvania
None
West Virginia
None
II. Oxford Mining Company — Kentucky, LLC Owned (Fee Simple and Fee Mineral) and Leased Real Property
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
Type of
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Anna Loraine
Cundiff, an
individual (amended
by Memorandum of
Lease to add George
Rudy Cundiff as a
Lessor)
|
|
Lease
|
|
2/28/2008
|
|
Memorandum of Lease
recorded in Deed
Book 543, page 396
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-1
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Anna Loraine
Cundiff, an
individual
|
|
Lease
|
|
6/7/2006
|
|
Lease recorded in
Deed Book 521, page
74, re-recorded in
Deed Book 521, page
237
[Assignment
and Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-2
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Anna Loraine
Cundiff, an
individual
|
|
Lease
|
|
6/7/2006
|
|
Lease recorded in
Deed Book 521, page
68, re-recorded in
Deed Book 521, page
227
[Assignment
and Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-3
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Kirkpatrick-Beech
Creek Mining
|
|
Lease
|
|
9/10/2001
|
|
Not Recorded
[Assignment
and Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-4
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
Type of
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
C&R Coal Company,
Inc.
|
|
Sublease
|
|
10/20/2006
|
|
Not Recorded
[Assignment
and Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-5
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Tom McDonald Heirs
etal.
|
|
Lease
|
|
See notes
|
|
Not Recorded
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-6
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Bobby Dukes & Jonnie
Dukes, h&w (see
notes for original
Lessor information)
|
|
Sublease
|
|
10/23/2003
|
|
Not Recorded
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-7
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
John Wesley Horn,
single
|
|
Lease
|
|
5/24/2006
|
|
Not Recorded
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-8
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Marjorie Dukes,
unmarried
|
|
Lease
|
|
10/23/2003
|
|
Not Recorded
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-9
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Glendell Horn and
Martha Horn, h&w
|
|
Lease
|
|
12/8/2003
|
|
Not Recorded
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-10
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
Type of
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Kenneth R. Dukes,
unmarried
|
|
Lease
|
|
1/13/2004
|
|
Not Recorded
[Assignment
and Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-11
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Bobby Dukes and
Jonnie Dukes, his
wife
|
|
Lease
|
|
10/23/2003
|
|
Not Recorded
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-12
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
William Thomas
Dockins,
individually, and as
Sole Trustee f/b/o
Karen Estelle
Dockins; and Brenda
Dockins, his wife
|
|
Lease
|
|
6/29/2009
|
|
Not Recorded
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
807]
|
|
Exhibit Q-13
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Florence Jane
McPherson, and
Virgil McPherson,
her husband
|
|
Lease
|
|
6/29/2009
|
|
Not Recorded
[Assignment
and Assumption of
Leases Recorded at
Deed Book 544, page
807]
|
|
Exhibit Q-14
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Edwin & Exie Bandy
|
|
Lease
|
|
12/22/2003
|
|
Not Recorded
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-15
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Billy & Patsy Kirtley
|
|
Lease
|
|
7/31/2004
|
|
Not Recorded
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-16
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
Type of
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Rudy Cundiff
|
|
Coal Lease Option
Agreement
|
|
9/27/2006
|
|
Not Recorded
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
831]
|
|
Exhibit Q-17
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
R&G Leasing, LLC and
Jonathan L. Rogers
|
|
Assignment and
Assumption
Agreement
|
|
7/31/2008
|
|
Not Recorded
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
821]
|
|
Exhibit Q-18
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Tom Eubanks 2378
S.R. 189 South
Greenville, KY 42345
|
|
Lease
|
|
5/31/2007 *(see notes)
|
|
Not Recorded
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
831]
|
|
Exhibit Q-19
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Jeffrey L. Eubanks
196
Luzerne-Depoy
Rd.
Greenville, KY 42345
|
|
Lease
|
|
5/31/2007 *(see notes)
|
|
Not Recorded
[Assignment
and Assumption of
Leases Recorded at
Deed Book 544, page
831]
|
|
Exhibit Q-20
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Donald R. Lear &
Judy Lear, his wife
et al
|
|
Lease
|
|
9/12/2005
|
|
Surface Coal Mining
and Option Lease
recorded in Deed
Book 522, page 181
[Assignment and
Assumption of
Leases Recorded at
Deed Book 544, page
831]
|
|
Exhibit Q-21
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified - see
|
|
|
|
|
|
|
|
Type of
|
|
Document
|
|
|
|
Exhibit
|
|
document & tax
|
|
County
|
|
State
|
|
Name
|
|
Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Claude W. Lee &
|
|
Lease
|
|
8/7/2009
|
|
Memorandum of Coal
|
|
Exhibit Q-22
|
|
N/A
|
|
|
|
|
|
Alicetine Lee, his
|
|
|
|
|
|
Mining Lease
|
|
|
|
|
|
|
|
|
|
wife
|
|
|
|
|
|
recorded in Deed
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Book 543, page 956
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
and Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 547, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
325]
|
|
|
|
|
|
Muhlenberg
|
|
KY
|
|
Ella J. Winn &
|
|
Lease
|
|
9/12/2005
|
|
Surface Coal Mining
|
|
Exhibit Q-23
|
|
N/A
|
|
|
|
|
|
Donald Winn, her
|
|
|
|
|
|
and Option Lease
|
|
|
|
|
|
|
|
|
|
husband
|
|
|
|
|
|
recorded in Deed
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Book 522, page 181
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
831]
|
|
|
|
|
|
Muhlenberg
|
|
KY
|
|
Martha L. Blass
|
|
Lease
|
|
9/12/2005
|
|
Surface Coal Mining
|
|
Exhibit Q-24
|
|
N/A
|
|
|
|
|
|
(11650 State Route
|
|
|
|
|
|
and Option Lease
|
|
|
|
|
|
|
|
|
|
175 South;
|
|
|
|
|
|
recorded in Deed
|
|
|
|
|
|
|
|
|
|
Greenville, KY
|
|
|
|
|
|
Book 522, page 181
|
|
|
|
|
|
|
|
|
|
42345)
|
|
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
831]
|
|
|
|
|
|
Muhlenberg
|
|
KY
|
|
Flowel (William R.
|
|
Lease
|
|
9/12/2005
|
|
Surface Coal Mining
|
|
Exhibit Q-25
|
|
N/A
|
|
|
|
|
|
King)
|
|
|
|
|
|
and Option Lease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
recorded in Deed
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Book 522, page 181
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
831]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified - see
|
|
|
|
|
|
|
|
Type of
|
|
Document
|
|
|
|
Exhibit
|
|
document & tax
|
|
County
|
|
State
|
|
Name
|
|
Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Ruby Smith
|
|
Lease
|
|
9/12/2005
|
|
Surface Coal Mining
|
|
Exhibit Q-26
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
and Option Lease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
recorded in Deed
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Book 522, page 181
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
831]
|
|
|
|
|
|
Muhlenberg
|
|
KY
|
|
William L. Lear &
|
|
Lease
|
|
9/12/2005
|
|
Surface Coal Mining
|
|
Exhibit Q-27
|
|
N/A
|
|
|
|
|
|
Sadie L. Lear
|
|
|
|
|
|
and Option Lease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
recorded in Deed
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Book 522, page 181
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
831]
|
|
|
|
|
|
Muhlenberg
|
|
KY
|
|
Herbert W. Lear &
|
|
Lease
|
|
8/20/2005
|
|
Memorandum of Lease
|
|
Exhibit Q-28
|
|
N/A
|
|
|
|
|
|
Ilene L. Lear, his
|
|
|
|
|
|
recorded in Deed
|
|
|
|
|
|
|
|
|
|
wife
|
|
|
|
|
|
Book 522, page 165
|
|
|
|
|
|
|
|
|
|
11903 State Route
|
|
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
175 South
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
Greenville, KY
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
42345 (1/8th
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
interest)
|
|
|
|
|
|
831]
|
|
|
|
|
|
Muhlenberg
|
|
KY
|
|
Jon Simms & Crystal
|
|
Lease
|
|
10/9/2006
|
|
Not Recorded
|
|
Exhibit Q-29
|
|
N/A
|
|
|
|
|
|
Simms 565 Kennedy
|
|
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
Rd. Greenville, KY
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
42345
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
831]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified - see
|
|
|
|
|
|
|
|
Type of
|
|
Document
|
|
|
|
Exhibit
|
|
document & tax
|
|
County
|
|
State
|
|
Name
|
|
Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Loren R. Lee & Kay
|
|
Lease
|
|
3/6/2006
|
|
Memorandum of Lease
|
|
Exhibit Q-30
|
|
N/A
|
|
|
|
|
|
Lee, his wife
|
|
|
|
|
|
recorded in Deed
|
|
|
|
|
|
|
|
|
|
193 Stoneybrook Dr.
|
|
|
|
|
|
Book 522, page 170
|
|
|
|
|
|
|
|
|
|
Greenwood, IN
|
|
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
46142
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
831]
|
|
|
|
|
|
Muhlenberg
|
|
KY
|
|
Donald Lee & Ellen
|
|
Lease
|
|
8/30/2005
|
|
Memorandum of Lease
|
|
Exhibit Q-31
|
|
N/A
|
|
|
|
|
|
Lee,his wife
|
|
|
|
|
|
recorded in Deed
|
|
|
|
|
|
|
|
|
|
929 S. 250 W.
|
|
|
|
|
|
Book 522, page 175
|
|
|
|
|
|
|
|
|
|
Hebron,
|
|
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
IN 46341
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
831]
|
|
|
|
|
|
Muhlenberg
|
|
KY
|
|
Talmage G. Rogers
|
|
Lease
|
|
12/4/1947
|
|
Deed Book 164, page
|
|
Exhibit Q-32
|
|
N/A
|
|
County
|
|
|
|
et al. (aka Rogers
|
|
|
|
|
|
525
|
|
|
|
|
|
|
|
|
|
Bros)
|
|
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
807]
|
|
|
|
|
|
Muhlenberg
|
|
KY
|
|
J.L. Rogers Jr.
|
|
Supplemental
|
|
1/8/1957
|
|
Not Recorded
|
|
Exhibit Q-33
|
|
N/A
|
|
County
|
|
|
|
etal. (aka Rogers
|
|
Lease
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
Bros)
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
807]
|
|
|
|
|
|
Muhlenberg
|
|
KY
|
|
Talmage G. Rogers
|
|
Extension of
|
|
12/6/1962
|
|
N/A
|
|
Exhibit Q-34
|
|
N/A
|
|
County
|
|
|
|
Jr. et al. (aka
|
|
Lease
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
Rogers Bros)
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
807]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified - see
|
|
|
|
|
|
|
|
Type of
|
|
Document
|
|
|
|
Exhibit
|
|
document & tax
|
|
County
|
|
State
|
|
Name
|
|
Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Martha F. Rogers,
|
|
Third
|
|
1/1/1966
|
|
Deed Book 304, page
|
|
Exhibit Q-35
|
|
N/A
|
|
County
|
|
|
|
etal (aka Rogers
|
|
Supplemental
|
|
|
|
439 (Not certain
|
|
|
|
|
|
|
|
|
|
Bros)
|
|
Lease
|
|
|
|
this is a Deed
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Book) [Assignment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
and Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
807]
|
|
|
|
|
|
Muhlenberg
|
|
KY
|
|
Sentry Royalty
|
|
Lease
|
|
10/20/1967
|
|
Deed Book 261, Page
|
|
Exhibit Q-36
|
|
N/A
|
|
County
|
|
|
|
Company
|
|
|
|
|
|
228 (Recording info
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
for Short Form
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
807]
|
|
|
|
|
|
Muhlenberg
|
|
KY
|
|
Peabody Coal Company
|
|
Lease
|
|
10/6/1969
|
|
Lease Book 59, page
|
|
Exhibit Q-37
|
|
N/A
|
|
County
|
|
|
|
|
|
|
|
|
|
434
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
807]
|
|
|
|
|
|
Muhlenberg
|
|
KY
|
|
Rogers Bros.
|
|
Partial Release
|
|
9/23/1986
|
|
Deed Book 376, page
|
|
Exhibit Q-38
|
|
N/A
|
|
County
|
|
|
|
|
|
of Coal Mining
|
|
|
|
610 (Not certain
|
|
|
|
|
|
|
|
|
|
|
|
Lease
|
|
|
|
this is a Deed
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Book)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Assignment and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assumption of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leases Recorded at
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deed Book 544, page
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
807]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg County
|
|
KY
|
|
AMAX, Inc. (Assignor)
|
|
Assignment & Assumption Agreement
|
|
8/27/1987
|
|
Deed Book 403, page 584
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-39
|
|
N/A
|
|
Muhlenberg County
|
|
KY
|
|
Meadowlark, Inc.
|
|
Lease
|
|
11/16/1999
|
|
Book 481, page 32
(may be Deed Book for a Memo of Surface & Mineral Lease Agreement)
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-40
|
|
N/A
|
|
Muhlenberg County
|
|
KY
|
|
Lynx, Inc. (Assignor)
|
|
Assignment & Sublease Agreement
|
|
1/22/2001
|
|
Evidenced by Memorandum of Assignment & Sublease recorded in Book D481, page 039
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-41
|
|
N/A
|
|
Muhlenberg County
|
|
KY
|
|
Meadowlark, Inc.
|
|
Corrected Lease
|
|
4/5/2001
|
|
Evidenced by Corrected Memorandum of Surface & Mineral Lease in Book D482, page 213
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-42
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg County
|
|
KY
|
|
Lynx, Inc.
|
|
Corrected Assignment & Sublease
Agreement
|
|
4/11/2001
|
|
Eveidence by Corrected Memorandum of Assignment & Sublease recorded in Book D482, page 220
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-43
|
|
N/A
|
|
Muhlenberg County
|
|
KY
|
|
Lynx, Inc.
|
|
Corrected Memorandum of Assignment &
Sublease Agreement
|
|
4/12/2001
|
|
Book D482, page 220
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-44
|
|
N/A
|
|
Muhlenberg County
|
|
KY
|
|
Lynx, Inc.
|
|
Amendment to Assignment and Sublease
Agreement
|
|
10/10/2001
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-45
|
|
N/A
|
|
Muhlenberg County
|
|
KY
|
|
Rogers Bros.
|
|
Settlement & Access Agreement
|
|
9/1/2001
|
|
N/A
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-46
|
|
|
|
Muhlenberg County
|
|
KY
|
|
Meadowlark, Inc.
|
|
Amendment No. 1 to Surface and
Mineral Lease Agreement
|
|
1/1/2003
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-47
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg County and Henderson County
|
|
KY
|
|
Crescent Coal Company; Justin Potter & Valera Blair Potter, his wife
|
|
Royalty Agreement
|
|
7/30/1955
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-48
|
|
N/A
|
|
Muhlenberg County and Henderson County
|
|
KY
|
|
Potter Grandchildren, L.L.C. (successor to Cresent and Potter)
|
|
Modification of Agreement
|
|
4/4/2001
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-49
|
|
N/A
|
|
Muhlenberg County
|
|
KY
|
|
Lexington Coal Company
|
|
Surface and MIneral Lease and Sublease
|
|
6/30/2009
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-50
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Peabody Development
|
|
Assignment & Assumption of Leasehold
|
|
9/30/2005
|
|
Deed Book 525, page 21 , and Deed Book 514, page 531
[Assignment and Assumption of Leases Recorded at Deed
Book 544, page 807]
|
|
Exhibit Q-51
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Peabody Development
|
|
Assignment & Assumption of Leasehold
|
|
9/30/2005
|
|
Deed Book 514, page 506
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-52
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Peabody Development
|
|
Grant of Surface Mining Rights
|
|
11/21/2005
|
|
Deed Book 525, page 39, and Deed Book 516, page 14
[Assignment and Assumption of Leases Recorded at Deed
Book 544, page 807]
|
|
Exhibit Q-53
|
|
N/A
|
|
McLean
|
|
KY
|
|
Douglas Wood and Sandra B. Wood
|
|
Lease
|
|
7/1/1996
|
|
Deed Book 137, page 662 and Deed Book 172, page 334
[Assignment and Assumption of Leases Recorded at Deed
Book 181, page 285]
|
|
Exhibit Q-54
|
|
N/A
|
|
McLean
|
|
KY
|
|
Richard Reno and Jeanette Reno
|
|
Lease
|
|
2/2/1996
|
|
Deed Book 135, page 4
|
|
Exhibit Q-55
|
|
N/A
|
|
McLean
|
|
KY
|
|
Howard H. Revlett, et al
|
|
Lease
|
|
7/1/1996
|
|
Deed Book 137, page 638 and Deed Book 172, page 334
[Assignment and Assumption of Leases Recorded at Deed
Book 181, page 285]
|
|
Exhibit Q-56
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Peabody Development, LLC
|
|
Lease
|
|
11/21/2005
|
|
Deed Book 525, page 39 and Deed Book 516, page 14
[Assignment and Assumption of Leases Recorded at Deed
Book 544, page 807]
|
|
Exhibit Q-57
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Peabody Development, LLC
|
|
Partial Assignment of Mining Rights
|
|
9/30/2005
|
|
Deed Book 514, page 501
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-58
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Peabody Development, LLC/Tertelling
|
|
Partial Assignment and Assumption of
Leasehold Estate
|
|
9/30/2005
|
|
Deed Book 525, page 21 , and Deed Book 514, page 531
[Assignment and Assumption of Leases Recorded at Deed
Book 544, page 807]
|
|
Exhibit Q-59
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Peabody Development Company, LLC/Tertelling
|
|
Partial Assignment and Assumption of
Leasehold Estate
|
|
9/30/2005
|
|
Deed Book 514, page 506
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-60
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Peabody Development Company, LLC and Peabody Coal Company, LLC
|
|
Lease
|
|
11/21/2005
|
|
Deed Book 525, page 39, and Deed Book 516, page 14
[Assignment and Assumption of Leases Recorded at Deed
Book 544, page 807]
|
|
Exhibit Q-61
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Peabody Development Company, LLC & Peabody Coal Company, LLC
|
|
Grant of Surface Mining Rights
|
|
11/21/2005
|
|
Deed Book 525, page 39 and Deed Book 516, page 14
[Assignment and Assumption of Leases Recorded at Deed
Book 544, page 807]
|
|
Exhibit Q-62
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Peabody Development Company, LLC & Peabody Coal Company, LLC
|
|
Easement Agreement
|
|
11/21/2005
|
|
Deed Book 516, page 25
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-63
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Peabody Development Company, LLC
|
|
Partial Assignment & Assumption of
Leasehold Estate
|
|
11/21/2005
|
|
Deed Book 516, page 45
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-64
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
John K. Vaught, a/k/a Kenny Vaught & Lisa Michelle Vaught, his wife
1704 S.R. 1379
Central City, KY 42330
|
|
Lease
|
|
11/4/2008
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 821]
|
|
Exhibit Q-65
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Martha Rogers Haas, et al
|
|
Lease
|
|
7/17/2006
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 821]
|
|
Exhibit Q-66
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Geibel Lumber Co., Lydia Geibel by Jon Geibel, POA and Jon Geibel,
Agent for the Geibel Family P.O. Box
200 Greenville, KY 42345
|
|
Lease
|
|
8/24/2005
|
|
Lease /Sublease recorded in Deed Book 517, page 35
[Assignment and Assumption of Leases Recorded at Deed
Book 544, page 837]
|
|
Exhibit Q-67
|
|
N/A
|
|
Muhlenberg
|
|
Ky
|
|
Geibel Lumber Co.,James Tardio, Executor of the Estate of Lydia
Geibel, and John Geibel, Agent for the Geibel Family
|
|
Amendment to Lease/Sublease Agreement
|
|
11/11/2008
|
|
See Lease / Sublease recorded in Deed Book 517, page 35
[Assignment and Assumption of
Leases Recorded at Deed Book 544, page 837]
|
|
Exhibit Q-68
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Gerald A. Liles & Judith Ann Liles, his wife
69 Shady Acres Ln.
Greenville, KY 42345
|
|
Lease
|
|
9/13/2006
|
|
Lease recorded in Deed Book 529, page 413
[Assignment and Assumption of Leases Recorded at Deed
Book 544, page 837]
|
|
Exhibit Q-69
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
James H. Edwards 1266 S.R. 831
Greenville, KY 42345
|
|
Lease
|
|
9/7/2006
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 837]
|
|
Exhibit Q-70
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Gerald A. Liles & Judith Ann Liles, his wife
69 Shady Acres Ln.
Greenville, KY 42345
|
|
Lease
|
|
8/3/2006
|
|
Lease /Sublease recorded in Deed Book 529, page 421
[Assignment and Assumption of Leases
Recorded at Deed Book 544, page 837]
|
|
Exhibit Q-71
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Elroy Lester Shelor, et al
|
|
Lease
|
|
6/23/2009
|
|
Memorandum of Lease recorded in Deed Book 543, page 668
[Assignment and Assumption of
Leases Recorded at Deed Book 547, page 325]
|
|
Exhibit Q-72
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Terry Adkins 737 Blaine Street, Sand Coulee, MT
|
|
Lease
|
|
12/2/2005
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 837]
|
|
Exhibit Q-73
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Hilltop Haven, Inc. P.O. Box 726 Burkesville, KY
|
|
Lease
|
|
5/30/2001
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 837]
|
|
Exhibit Q-74
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Shirley A. Adler
|
|
Surface Lease Option
|
|
3/26/2008
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 821]
|
|
Exhibit Q-75
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Roger A France & Ellen L. France; Ellen France Signed but not
listed as Lessor at front of Lease
|
|
Surface Lease Option
|
|
1/11/2008
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 821]
|
|
Exhibit Q-76
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Howard Covington, Mary Covington, Morris Bandy, and Carolyn Bandy
|
|
Lease
|
|
6/23/2009
|
|
Memorandum of Coal Mining Lease recorded in Deed Book 544, page 584
[Assignment and Assumption
of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-77
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Richard T. Williams & Tonya L. Williams, his wife
631 Pallet Mill Rd. Greenville, KY
42345
|
|
Lease
|
|
6/25/2007
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 837]
|
|
Exhibit Q-78
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Joseph P. Liles 3111 4th St.,
Apt. 320 Santa Monica, CA
90405
|
|
Lease
|
|
8/3/2006
|
|
Lease /Sublease recorded in Deed Book 529, page 421
[Assignment and Assumption of Leases Recorded at Deed
Book 544, page 837]
|
|
Exhibit Q-79
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Joseph P. Liles 3111 4th St.,
Apt. 320 Santa Monica, CA
90405
|
|
Lease
|
|
9/13/2006
|
|
Lease recorded in Deed Book 529, page 413
[Assignment and Assumption of Leases Recorded at Deed
Book 544, page 837]
|
|
Exhibit Q-80
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Louis G. (Gayle) Baggett & Brenda J. Baggett (2877 Hwy. 62 W.,
Greenville, KY 42345)
|
|
Lease
|
|
4/30/2009
|
|
Memorandum of Coal Mining Lease recorded in Deed Book 544, page 527
[Assignment and Assumption
of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-81
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Lisa Fairchild & John
Fairchild III (297 Baggett Ln, Greenville, KY
42345)
|
|
Lease
|
|
3/5/2009
|
|
Memorandum of Coal Mining Lease recorded in Deed Book 544, page 245
[Assignment and Assumption
of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-82
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
H.C. Epley & Betty Epley, h&w, James K. Putman & Ilene A. Putman,
Trustees of the Putman Family Trust, Linnie Putman (Widow)
|
|
Lease
|
|
11/7/2005
|
|
N/A
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-83
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
James K. Putman & Ilene A. Putman, Trustees of the Putman Family
Trust, Linnie Putman, Sondra Epley; Kevin Epley & Melissa Epley,
his wife
|
|
Amendment/Term Extension & Renewal
Agreement (#1)
|
|
1/18/2008
|
|
N/A
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-84
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
James K. Putman & Ilene A. Putman, Trustees of the Putman Family
Trust, Linnie Putman, Sondra Epley;
|
|
Amendment to Lease (#2)
|
|
7/1/2009
|
|
N/A
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-85
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Midsouth Energy, Inc.
|
|
Assignment of Coal Lease
|
|
7/20/2009
|
|
Deed Book 544, page 663
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-86
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Captain & Dana, Inc. (515 Gishton Rd, Central City, KY 42330)
|
|
Sublease Agreement to Surface Mine
Coal
|
|
8/21/2007
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 837]
|
|
Exhibit Q-87
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Captain & Dana, Inc. (515 Gishton Rd, Central City, KY 42330)
|
|
Lease
|
|
8/21/2007
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 837]
|
|
Exhibit Q-88
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Rogers Brothers
|
|
Coal Mining Lease Amendment
|
|
10/26/2002
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-89
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Peabody Development Company, LLC
|
|
Partial Assignment & Assumption of
Leasehold Estate
|
|
11/21/2005
|
|
Deed Book 516, page 34
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-90
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Martha Rogers, et al
|
|
Coal Mining Lease Amendment
|
|
11/30/1965
|
|
Deed Book 252, page 343
[Assignment and Assumption of Leases Recorded at Deed Book 544, page 807]
|
|
Exhibit Q-91
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
McLean
|
|
KY
|
|
Catherine Fowler, et al
|
|
Shop Lease
|
|
7/1/2007
|
|
Not Recorded
[Assignment and Assumption of Leases Recorded at Deed Book 181, page 330]
|
|
Exhibit Q-92
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Phoenix Coal Corp.
|
|
Deed
|
|
9/30/2009
|
|
Deed Book 544, page 804
|
|
Exhibit Q-93
|
|
N/A
|
|
McLean
|
|
KY
|
|
Phoenix Coal Corp.
|
|
Deed
|
|
9/30/2009
|
|
Deed Book 181, page 313
|
|
Exhibit Q-94
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
R&L Winn, inc.
|
|
Deed
|
|
3/22/2010
|
|
Deed Book 547, page 275
|
|
Exhibit Q-95
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Rogers, et al
|
|
Lease
|
|
11/12/2009
|
|
Deed Book 545, page 1
|
|
Exhibit Q-96
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Rogers, et al
|
|
Lease
|
|
11/30/2009
|
|
Not Recorded
|
|
Exhibit Q-97
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Cyprus Creek Land Resources, LLC
|
|
Partial Assignment of Lease
|
|
12/31/2009
|
|
Deed Book 546, page 97
|
|
Exhibit Q-98
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Evergreen Mineral Co.
|
|
Assignment of Leases
|
|
4/12/2010
|
|
Deed Book 547, page 325
|
|
Exhibit Q-99
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Department of Miliary Affairs
|
|
Assignment of Leases
|
|
4/12/2010
|
|
Deed Book 547, page 325
|
|
Exhibit Q-100
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
John K. Vaught
|
|
Lease
|
|
6/16/2010
|
|
To Be Recorded
|
|
Exhibit Q-101
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Cyprus Creek Land Resources, LLC
|
|
Deed
|
|
12/31/2009
|
|
Deed Book 546, page 79
|
|
Exhibit Q-102
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Parcel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number(s) (not
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
certified- see
|
|
|
|
|
|
|
|
|
|
Document
|
|
|
|
Exhibit
|
|
documents & tax
|
|
County
|
|
State
|
|
Name
|
|
Type of Acquisition
|
|
Date
|
|
Recording Data
|
|
Attachment
|
|
records)
|
|
Muhlenberg
|
|
KY
|
|
Development Design & Construction, LLC
|
|
Lease
|
|
4/2/2010
|
|
To Be Recorded
|
|
Exhibit Q-103
|
|
N/A
|
|
McLean
|
|
KY
|
|
Phoenix Coal Processing
|
|
Assignment of Fleeting Rights
|
|
9/30/2009
|
|
Deed Book 181, page 331
|
|
Exhibit Q-104
|
|
N/A
|
|
McLean
|
|
KY
|
|
Phoenix Coal Processing
|
|
Assignment of Powerline Easement
|
|
9/30/2009
|
|
Deed Book 181, page 335
|
|
Exhibit Q-105
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Cyprus Creek Land Resources, LLC
|
|
Option Agreement
|
|
12/31/2009
|
|
Deed Book 546, page 121
|
|
Exhibit Q-106
|
|
N/A
|
|
Muhlenberg
|
|
KY
|
|
Cyprus Creek Land Resources, LLC
|
|
Haulroad Easement
|
|
12/31/2009
|
|
Deed Book 546, page 160
|
|
Exhibit Q-107
|
|
N/A
|
Schedule 4.01(t)
Loan Party Investments
I. Securities Accounts
|
|
|
|
|
|
|
|
|
Financial
|
|
Name of Credit
|
|
Account
|
|
|
|
Institution
|
|
Party on Account
|
|
Number(s)
|
|
Account Type
|
|
Fifth Third Securities
|
|
Oxford Mining
|
|
069-134228
|
|
Money Market
|
|
|
|
Company, LLC
|
|
|
|
|
|
|
|
II. Permitted Lien Security Accounts
|
|
|
|
Financial
|
|
Name of Credit
|
|
Account
|
|
|
|
Institution
|
|
Party on Account
|
|
Number(s)
|
|
Account Type
|
|
MorganStanley SmithBarney
|
|
Oxford Mining
|
|
619-44679
|
|
Reserved Money Market
|
|
Hartford, CT
|
|
Company, LLC
|
|
|
|
|
Note: In addition to the above accounts, there is a lease collateral account with Republic Bank
for Marquette Leasing.
Schedule 5.02(a)
Liens in Existence on Date of
Agreement
|
|
|
|
|
|
|
|
|
|
|
UCC/Financing
|
|
Filing
|
|
|
|
|
|
|
|
Statement Number
|
|
Jurisdiction
|
|
Debtor
|
|
Secured Party
|
|
S/N(s)
|
|
OH00130961881
|
|
Ohio Secretary of State
|
|
Oxford Resource Partners, LP
|
|
Marquette Equipment Finance,
|
|
GAE2170, GAE2173,
|
|
|
|
|
|
|
|
LLC Republic Bank, Inc.
|
|
GAE2175, 20008, 20010
|
|
OH00117239134
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
HCR Holdings, LLC
|
|
N/A
|
|
OH00118564611
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
N/A
|
|
OH00122534412
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
Sovereign Bank
|
|
110, 111, 112, 113
|
|
OH00121993369
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
OMCO Leasing Corporation
|
|
7HR00203
|
|
OH00123648939
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
Sovereign Bank
|
|
VELS 4000R7, S5R001189
|
|
OH00127559651
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
General Electric
|
|
T$BH, 8624,
|
|
|
|
|
|
|
|
Capital Corporation
|
|
1CYDCV5807T048139,
|
|
|
|
|
|
|
|
|
|
GEB00242, GEB00243,
|
|
|
|
|
|
|
|
|
|
30014
|
|
OH00128547293
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
General Electric Capital Corporation
|
|
30076
|
|
OH00129452340
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
General Electric Capital Corporation
|
|
7PZ0752, 8RP00543,
|
|
|
|
|
|
|
|
|
|
7CP00785
|
|
OH00129645181
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
OMCO Leasing Corporation
|
|
93U00809
|
|
OH00129645292
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
OMCO Leasing Corporation
|
|
93U01483
|
|
OH00129647327
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
OMCO Leasing Corporation
|
|
9TZ00449
|
|
OH00129647761
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
OMCO Leasing Corporation
|
|
7HR00059
|
|
OH00130961881
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
Marquette Equipment Finance, LLC
|
|
GAE2170, GAE2173,
|
|
|
|
|
|
|
|
Republic Bank, Inc.
|
|
GAE2175, 20008, 20010
|
|
OH00131782802
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
OMCO Leasing Corporation
|
|
AGS02099
|
|
OH00131675360
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
Consolidated Coal Company
|
|
N/A
|
|
OH00134520508
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
Bill Miller Equipment Sales, Inc.
|
|
2YR430, 2YR438, 2YR149
|
|
OH00138202407
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
Columbus Equipment Company
|
|
10718
|
|
OH00137240305
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
Bill Miller Equipment Sales, Inc.
|
|
9XOLD280847
|
|
OH00136172006
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
Caterpillar Financial Services
|
|
GEB00480
|
|
|
|
|
|
|
|
Corporation
|
|
|
|
OH00139861979
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
Komatsu Financial Limited
|
|
30121, 30129
|
|
|
|
|
|
|
|
Partnership
|
|
|
|
OH00139633380
|
|
Ohio Secretary of State
|
|
Oxford Mining Company, LLC
|
|
Komatsu Financial Limited
|
|
20176
|
|
|
|
|
|
|
|
Partnership
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
UCC/Financing
|
|
Filing
|
|
|
|
|
|
|
|
Statement Number
|
|
Jurisdiction
|
|
Debtor
|
|
Secured Party
|
|
S/N(s)
|
|
OH00140059981
|
|
Ohio Secretary of
State
|
|
Oxford Mining Company, LLC
|
|
Komatsu Financial Limited
Partnership
|
|
|
30121
|
|
|
OH00140060015
|
|
Ohio Secretary of
State
|
|
Oxford Mining Company, LLC
|
|
Komatsu Financial Limited
Partnership
|
|
|
30129
|
|
|
OH00140060015
|
|
Ohio Secretary of
State
|
|
Oxford Mining Company, LLC
|
|
Komatsu Financial Limited
Partnership
|
|
|
20176
|
|
|
OH00141896542
|
|
Ohio Secretary of
State
|
|
Oxford Mining Company, LLC
|
|
Dell Financial Services L.L.C.
|
|
|
N/A
|
|
|
OH00118564611
|
|
Ohio Secretary of
State
|
|
Daron Coal Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
2009-2413731-12.01
|
|
Kentucky Secretary
of State
|
|
Oxford Mining Company —
Kentucky, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
2010-2432604-04.01
|
|
Kentucky Secretary
of State
|
|
Oxford Mining Company —
Kentucky, LLC
|
|
Cyprus Creek Land Resources,
LLC
|
|
|
N/A
|
|
|
2010-2432927-02
|
|
Kentucky Secretary
of State
|
|
Oxford Mining Company —
Kentucky, LLC
|
|
Caterpillar Financial
Services Corporation
|
|
ABJ00602, 7PZ01450,
7PZ75010, JRP01612,
JRP01613, JRP01866,
H4C00345, JRP01234,
7PZ75009, JRP01305,
7PZ01449, JRP01367,
JRP01506, JRP01504
|
|
FF8-01
|
|
Henderson County,
KY Recorder
|
|
Oxford Mining Company —
Kentucky, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
FF8-87
|
|
Henderson County,
KY Recorder
|
|
Oxford Mining Company —
Kentucky, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
FF1-653
|
|
McLean County, KY
Recorder
|
|
Oxford Mining Company —
Kentucky, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
FF1-739
|
|
McLean County, KY
Recorder
|
|
Oxford Mining Company —
Kentucky, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200900001954
|
|
Carroll County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200913561
|
|
Washington County,
PA Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200900002650
|
|
Athens County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
UCC/Financing
|
|
Filing
|
|
|
|
|
|
|
|
Statement Number
|
|
Jurisdiction
|
|
Debtor
|
|
Secured Party
|
|
S/N(s)
|
|
2007-3236378
|
|
Delaware Secretary
of State
|
|
Oxford Resource Partners, LP
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
2008-3822077
|
|
Delaware Secretary
of State
|
|
Oxford Resource Partners,
LP and Oxford Mining
Company, LLC
|
|
Marquette Equipment Finance,
LLC
Republic Bank, Inc.
(by assignment)
|
|
GAE2170, GAE2173,
GAE2175, 20008,
20010
|
|
2007-3236352
|
|
Delaware Secretary
of State
|
|
Oxford Resources GP, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200700000119
|
|
Tuscarawas County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200900000080
|
|
Tuscarawas County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200900000133
|
|
Tuscarawas County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
224390/VOL815PG813
|
|
Jefferson County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
240099/VOL880PG368
|
|
Jefferson County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
242193/VOL888PG696
|
|
Jefferson County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
247704/VOL912PG808
|
|
Jefferson County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200700004167
|
|
Coshocton County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200700004168
|
|
Coshocton County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
2007-00000159
|
|
Muskingum County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200900003794
|
|
Morgan County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200900045083
|
|
Morgan County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200900008952
|
|
Guernsey County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
201000009009
|
|
Guernsey County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
UCC/Financing
|
|
Filing
|
|
|
|
|
|
|
|
Statement Number
|
|
Jurisdiction
|
|
Debtor
|
|
Secured Party
|
|
S/N(s)
|
|
2007-00048947
|
|
Columbiana County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
2007-00048983
|
|
Columbiana County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
2009-00049311
|
|
Columbiana County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
2009-00049369
|
|
Columbiana County,
OH Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200700005132
|
|
Noble County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200900005180
|
|
Noble County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200700000023 /
200800000026
|
|
Perry County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Peabody Development Company,
LLC
HCR Holdings, LLC
|
|
|
N/A
|
|
|
200700000031
|
|
Perry County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200900000010
|
|
Perry County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200900000020
|
|
Perry County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
201000001645
|
|
Perry County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200700003769
|
|
Belmont County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200900003935
|
|
Belmont County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
200900003955
|
|
Belmont County, OH
Recorder
|
|
Oxford Mining Company, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
FF6-237
|
|
Muhlenberg County,
KY Recorder
|
|
Oxford Mining Company -
Kentucky, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
FF6-323
|
|
Muhlenberg County,
KY Recorder
|
|
Oxford Mining Company -
Kentucky, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
UCC/Financing
|
|
Filing
|
|
|
|
|
|
|
|
Statement Number
|
|
Jurisdiction
|
|
Debtor
|
|
Secured Party
|
|
S/N(s)
|
|
FF6-563
|
|
Muhlenberg County,
KY Recorder
|
|
Oxford Mining Company -
Kentucky, LLC
|
|
Cyprus Creek Land Resources,
LLC.
|
|
|
N/A
|
|
|
Book8, Page1
|
|
Henderson County,
KY Recorder
|
|
Phoenix Newco, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
Book8, Page 87
|
|
Henderson County,
KY Recorder
|
|
Phoenix Newco, LLC
|
|
Firstlight Funding I, Ltd.
|
|
|
N/A
|
|
|
2008-1418902*
|
|
Delaware Secretary
of State
|
|
Capp Equipment, LLC
|
|
FC Crestone 08 Corporation
|
|
SHM-40R/900
|
|
|
|
|
|
*
|
|
By way of that certain Equipment Purchase Agreement, dated June 4, 2010, by and between Oxford
Mining Company, LLC (“Oxford”), Capp Equipment, LLC (“Capp”), and FC Crestone 08 Corporation,
Oxford has purchased the equipment subject to this financing statement. Under the agreement,
Oxford has also granted a security interest in the equipment to Capp, which Capp is entitled to
perfect. This is one of the equipment
purchases contemplated in the IPO, and Oxford will make final payment with the closing of the IPO
with the security interest and financing statement then being terminated.
|
Schedule 5.02(c)
Existing Debt
|
•
|
|
Debt of the Loan Parties under the Existing Facility Agreement.
|
|
|
|
•
|
|
Debt of the Loan Parties to Peabody Energy Corporation for the deferred
purchase price for coal reserves having an outstanding principal balance of $2,000,000.
|
|
|
|
•
|
|
Debt of Harrison Resources to CONSOL Energy for the deferred purchase price
for coal reserves having an outstanding balance of $1,773,000.
|
|
|
|
•
|
|
Debt of the Loan Parties to CONSOL Energy for the deferred purchase price for
coal reserves having an outstanding principal balance of not more than $1,500,000.
|
|
|
|
•
|
|
Debt of Harrison Resources to CONSOL Energy for the deferred purchase price
for coal reserves having an outstanding balance of $13,458,333 (there additionally will be
royalties estimated at $2,691,667, increasing the deferred purchase price by the amount of
the royalties).
|
Schedule 5.16
Post Closing Covenants
|
|
|
|
|
|
|
|
|
Covenant
|
|
Date of Completion
|
|
1.
|
|
Borrower shall deliver to the
applicable insurance company an assignment
in form and substance reasonably acceptable
to the Administrative Agent, executed by
the Borrower and pursuant to which the
Borrower collaterally assigns to the
Administrative Agent, for the benefit of
the Lenders, its interest in any Key-Man
Life Insurance Policies.
|
|
Within three (3) Business Days
of the Effective Date
|
|
|
|
|
|
|
|
2.
|
|
Borrower shall either (i) deliver
Deposit Account Control Agreements or
Securities Account Control Agreements, as
applicable, executed by the applicable
depository bank or securities intermediary
in a form reasonably satisfactory to
Administrative Agent for all deposit
accounts and securities accounts listed on
Schedule 3 and 4 to the Security Agreement,
to the extent such accounts remain open as
of July 30, 2010 or (ii) move such accounts
to Citibank, N.A. or Citibank Global
Markets, Inc., as applicable.
|
|
July 30, 2010
|
|
|
|
|
|
|
|
3.
|
|
Borrower shall use commercially
reasonable efforts to make the notices and
to obtain and have executed all the
consents listed on Annex A attached hereto,
in a form reasonably satisfactory to the
Administrative Agent.
|
|
August 31, 2010
|
