UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

(Mark One)

 

[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the quarterly period ended September 30, 2016

 

OR

 

[  ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from ________ to ________

 

Commission file number 001-34892

 

RHINO RESOURCE PARTNERS LP

(Exact name of registrant as specified in its charter)

 

Delaware   27-2377517
(State or other jurisdiction of
incorporation or organization)
  (IRS Employer
Identification No.)

 

424 Lewis Hargett Circle, Suite 250
Lexington, KY
  40503
(Address of principal executive offices)   (Zip Code)

 

(859) 389-6500

(Registrant’s telephone number, including area code)

 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.[X] Yes [  ] No

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). [X] Yes [  ] No

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer [  ]   Accelerated filer [  ]
Non-accelerated filer [  ] (Do not check if a smaller reporting company) Smaller reporting company [X]

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). [  ] Yes [X] No

 

As of November 7, 2016, 7,905,799 common units and 1,235,534 subordinated units were outstanding.

 

 

 

 
 

 

TABLE OF CONTENTS

 

    Page
     
Cautionary Note Regarding Forward-Looking Statements  1
Part I.—Financial Information (Unaudited)  2
ITEM 1. FINANCIAL STATEMENTS  2
  Condensed Consolidated Statements of Financial Position as of September 30, 2016 and December 31, 2015  2
  Condensed Consolidated Statements of Operations and Comprehensive Income for the Three and Nine Months Ended September 30, 2016 and 2015  3
  Condensed Consolidated Statements of Cash Flows for the Nine Months Ended September 30, 2016 and 2015 4
  Notes to Condensed Consolidated Financial Statements
Item 2 Management’s Discussion and Analysis of Financial Condition and Results of Operations  31
Item 4 Controls and Procedures  71
PART II—Other Information 71
Item 1 Legal Proceedings   71
Item 1A Risk Factors   71
Item 2 Unregistered Sales of Equity Securities and Use of Proceeds   71
Item 3 Defaults upon Senior Securities  72
Item 4 Mine Safety Disclosure   72
Item 5 Other Information   72
Item 6 Exhibits  73
SIGNATURES  75

 

 
 

 

Cautionary Note Regarding Forward-Looking Statements

 

This Quarterly Report on Form 10-Q contains certain “forward-looking statements.” Statements included in this report that are not historical facts, that address activities, events or developments that we expect or anticipate will or may occur in the future, including things such as statements regarding our future financial position, expectations with respect to our liquidity, capital resources and ability to continue as a going concern, plans for growth of the business, future capital expenditures, references to future goals or intentions or other such references are forward-looking statements. These statements can be identified by the use of forward-looking terminology, including “may,” “believe,” “expect,” “anticipate,” “estimate,” “continue,” or similar words. These statements are made by us based on our experience and our perception of historical trends, current conditions and expected future developments as well as other considerations we believe are reasonable as and when made. Whether actual results and developments in the future will conform to our expectations is subject to numerous risks and uncertainties, many of which are beyond our control. Therefore, actual outcomes and results could materially differ from what is expressed, implied or forecast in these statements.

 

Any differences could be caused by a number of factors, including, but not limited to: our ability to maintain adequate cash flow and to obtain financing necessary to fund our capital expenditures, meet working capital needs and maintain and grow our operations; our future levels of indebtedness and compliance with debt covenants; sustained depressed levels of or decline in coal prices, which depend upon several factors such as the supply of domestic and foreign coal, the demand for domestic and foreign coal, governmental regulations, price and availability of alternative fuels for electricity generation and prevailing economic conditions; our ability to comply with the qualifying income requirement necessary to maintain our status as a partnership for U.S. federal income tax purposes; declines in demand for electricity and coal; the consummation of the acquisition of Armstrong energy, Inc. from, and the transfer of 50% of our general partner to, Yorktown Partners LLC; our ability to realize the expected benefits of an acquisition of Armstrong Energy, Inc.; current and future environmental laws and regulations, which could materially increase operating costs or limit our ability to produce and sell coal; extensive government regulation of mine operations, especially with respect to mine safety and health, which imposes significant actual and potential costs; difficulties in obtaining and/or renewing permits necessary for operations; a variety of operating risks, such as unfavorable geologic conditions, adverse weather conditions and natural disasters, mining and processing equipment unavailability, failures and unexpected maintenance problems and accidents, including fire and explosions from methane; poor mining conditions resulting from the effects of prior mining; the availability and costs of key supplies and commodities such as steel, diesel fuel and explosives; fluctuations in transportation costs or disruptions in transportation services, which could increase competition or impair our ability to supply coal; a shortage of skilled labor, increased labor costs or work stoppages; our ability to secure or acquire new or replacement high-quality coal reserves that are economically recoverable; material inaccuracies in our estimates of coal reserves and non-reserve coal deposits; existing and future laws and regulations regulating the emission of sulfur dioxide and other compounds, which could affect coal consumers and reduce demand for coal; federal and state laws restricting the emissions of greenhouse gases; our ability to acquire or failure to maintain, obtain or renew surety bonds used to secure obligations to reclaim mined property; our dependence on a few customers and our ability to find and retain customers under favorable supply contracts; changes in consumption patterns by utilities away from the use of coal, such as changes resulting from low natural gas prices; changes in governmental regulation of the electric utility industry; our ability to successfully diversify our operations into other non-coal natural resources; defects in title in properties that we own or losses of any of our leasehold interests; our ability to retain and attract senior management and other key personnel; material inaccuracy of assumptions underlying reclamation and mine closure obligations; and weakness in global economic conditions. Other factors that could cause our actual results to differ from our projected results are described in (1) Part II, “Item 1A. Risk Factors” and elsewhere in this Form 10-Q, (2) our Annual Report on Form 10-K for the year ended December 31, 2015, (3) our reports and registration statements filed from time to time with the Securities and Exchange Commission and (4) other announcements we make from time to time. In addition, we may be subject to unforeseen risks that may have a materially adverse effect on us. Accordingly, no assurances can be given that the actual events and results will not be materially different from the anticipated results described in the forward-looking statements.

 

The forward-looking statements speak only as of the date made, and, other than as required by law, we undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.

 

  1  
 

 

PART I.—FINANCIAL INFORMATION

 

Item 1. Financial Statements (Unaudited)

 

RHINO RESOURCE PARTNERS LP

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF FINANCIAL POSITION

(in thousands)

 

    September 30, 2016     December 31, 2015  
ASSETS                
CURRENT ASSETS:                
Cash and cash equivalents   $ 36     $ 59  
Accounts receivable, net of allowance for doubtful accounts ($0 as of September 30, 2016 and $0 as of December 31, 2015)        13,272           12,597   
Inventories     8,807       8,570  
Advance royalties, current portion     1,091       753  
Prepaid expenses and other     6,854       5,467  
Current assets held for sale     -       1,998  
Total current assets     30,060       29,444  
PROPERTY, PLANT AND EQUIPMENT:                
At cost, including coal properties, mine development and construction costs     449,204       484,309  
Less accumulated depreciation, depletion and amortization     (261,473 )     (258,739 )
Net property, plant and equipment     187,731       225,570  
Advance royalties, net of current portion     7,697       7,172  
Investment in unconsolidated affiliates     7,446       7,578  
Other non-current assets     26,006       26,306  
Non-current assets held for sale     -       108,596  
TOTAL   $ 258,940     $ 404,666  
LIABILITIES AND EQUITY                
CURRENT LIABILITIES:                
Accounts payable   $ 8,789     $ 9,199  
Accrued expenses and other     9,101       11,049  
Current portion of long-term debt     -       41,479  
Current portion of asset retirement obligations     1,430       767  
Current portion of postretirement benefits     -       45  
Current liabilities held for sale     -       930  
Total current liabilities     19,320       63,469  
NON-CURRENT LIABILITIES:                
Long-term debt, net of current portion     30,350       2,595  
Asset retirement obligations, net of current portion     22,600       22,310  
Other non-current liabilities     42,964       44,765  
Non-current liabilities held for sale     -       3,599  
Total non-current liabilities     95,914       73,269  
Total liabilities     115,234       136,738  
COMMITMENTS AND CONTINGENCIES (NOTE 13)                
PARTNERS’ CAPITAL:                
Limited partners     136,722       253,312  
Subscription receivable from limited partners     (2,000 )     -  
General partner     8,984       9,821  
Accumulated other comprehensive income     -       4,795  
Total partners’ capital     143,706       267,928  
TOTAL   $ 258,940     $ 404,666  

 

See notes to unaudited condensed consolidated financial statements.

 

  2  
 

 

RHINO RESOURCE PARTNERS LP

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS AND

COMPREHENSIVE INCOME

(in thousands, except per unit data)

 

    Three Months     Nine Months  
    Ended September 30,     Ended September 30,  
    2016     2015     2016     2015  
REVENUES:                                
Coal sales   $ 40,992     $ 45,468     $ 116,777     $ 139,493  
Freight and handling revenues     424       735       1,634       1,942  
Other revenues     1,999       5,693       5,947       16,899  
Total revenues     43,415       51,896       124,358       158,334  
COSTS AND EXPENSES:                                
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)     35,249       47,678       98,105       139,733  
Freight and handling costs     385       709       1,451       1,915  
Depreciation, depletion and amortization     6,489       7,838       18,341       24,456  
Selling, general and administrative (exclusive of depreciation, depletion and amortization shown separately above)     4,305       2,866       12,248       11,805  
Loss on asset impairments     -       2,332       -       4,512  
(Gain) on sale/disposal of assets—net     (125 )     (453 )     (420 )     (435 )
Total costs and expenses     46,303       60,970       129,725       181,986  
INCOME/(LOSS) FROM OPERATIONS     (2,888 )     (9,074 )     (5,367 )     (23,652 )
INTEREST AND OTHER (EXPENSE)/INCOME:                                
Interest expense     (1,904 )     (1,385 )     (5,195 )     (3,652 )
Interest income and other     (54 )     -       11       38  
Gain on extinguishment of debt     1,663       -       1,663       -  
Equity in net (loss)/income of unconsolidated affiliates     (27 )     77       (132 )     342  
Total interest and other (expense)     (322 )     (1,308 )     (3,653 )     (3,272 )
NET (LOSS) BEFORE INCOME TAXES FROM CONTINUING OPERATIONS     (3,210 )     (10,382 )     (9,020 )     (26,924 )
INCOME TAXES     -       -       -       -  
NET (LOSS) FROM CONTINUING OPERATIONS     (3,210 )     (10,382 )     (9,020 )     (26,924 )
DISCONTINUED OPERATIONS (NOTE 3)                                
(Loss)/income from discontinued operations     (575 )     1,076       (117,940 )     5,666  
NET (LOSS)     (3,785 )     (9,306 )     (126,960 )     (21,258 )
Other comprehensive income:                                
Amortization of actuarial gain under ASC Topic 715     -       (44 )     -       (133 )
COMPREHENSIVE (LOSS)   $ (3,785 )   $ (9,350 )   $ (126,960 )   $ (21,391 )
                                 
General partner’s interest in net (loss)/income:                                
Net (loss) from continuing operations   $ (21 )   $ (208 )   $ (87 )   $ (538 )
Net income from discontinued operations     (4 )     22       (750 )     113  
General partner’s interest in net (loss)/income   $ (25 )   $ (186 )   $ (837 )   $ (425 )
Common unitholders’ interest in net (loss)/income:                                
Net (loss) from continuing operations   $ (2,758 )   $ (5,840 )   $ (7,144 )   $ (15,143 )
Net income from discontinued operations     (494 )     605       (93,734 )     3,187  
Common unitholders’ interest in net (loss)/income   $ (3,252 )   $ (5,235 )   $ (100,878 )   $ (11,956 )
Subordinated unitholders’ interest in net (loss)/income:                                
Net (loss) from continuing operations   $ (431 )   $ (4,334 )   $ (1,788 )   $ (11,243 )
Net income from discontinued operations     (77 )     449       (23,456 )     2,366  
Subordinated unitholders’ interest in net (loss)/income   $ (508 )   $ (3,885 )   $ (25,244 )   $ (8,877 )
Net (loss)/income per limited partner unit, basic:                                
Common units:                                
Net (loss) per unit from continuing operations   $ (0.35 )   $ (3.49 )   $ (1.45 )   $ (8.99 )
Net income per unit from discontinued operations     (0.06 )     0.36       (18.98 )     1.91  
Net (loss)/income per common unit, basic   $ (0.41 )   $ (3.13 )   $ (20.43 )   $ (7.08 )
Subordinated units                                
Net (loss) per unit from continuing operations   $ (0.35 )   $ (3.49 )   $ (1.45 )   $ (9.19 )
Net income per unit from discontinued operations     (0.06 )     0.36       (18.98 )     1.91  
Net (loss)/income per subordinated unit, basic   $ (0.41 )   $ (3.13 )   $ (20.43 )   $ (7.28 )
Net (loss)/income per limited partner unit, diluted:                                
Common units                                
Net (loss) per unit from continuing operations   $ (0.35 )   $ (3.49 )   $ (1.45 )   $ (8.99 )
Net income per unit from discontinued operations     (0.06 )     0.36       (18.98 )     1.91  
Net (loss)/income per common unit, diluted   $ (0.41 )   $ (3.13 )   $ (20.43 )   $ (7.08 )
Subordinated units                                
Net (loss) per unit from continuing operations   $ (0.35 )   $ (3.49 )   $ (1.45 )   $ (9.19 )
Net income per unit from discontinued operations     (0.06 )     0.36       (18.98 )     1.91  
Net (loss)/income per subordinated unit, diluted   $ (0.41 )   $ (3.13 )   $ (20.43 )   $ (7.28 )
                                 
Distributions paid per limited partner unit (1)   $ -     $ -     $ -     $ 0.07  
Weighted average number of limited partner units outstanding, basic:                                
Common units     7,906       1,671       4,937       1,670  
Subordinated units     1,236       1,240       1,236       1,240  
Weighted average number of limited partner units outstanding, diluted:                                
Common units     7,906       1,671       4,937       1,670  
Subordinated units     1,236       1,240       1,236       1,240  

 

(1) No distributions were paid on the subordinated units for the three and nine months ended September 30, 2016 and 2015

 

See notes to unaudited condensed consolidated financial statements

 

  3  
 

 

RHINO RESOURCE PARTNERS LP

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(in thousands)

 

    Nine Months Ended September 30,  
    2016     2015  
CASH FLOWS FROM CONTINUING AND DISCONTINUED OPERATING ACTIVITIES:                
Net (loss)   $ (126,961 )   $ (21,259 )
Adjustments to reconcile net income to net cash provided by operating activities:                
Depreciation, depletion and amortization     18,753       25,695  
Accretion on asset retirement obligations     1,141       1,651  
Accretion on interest-free debt     -       -  
Amortization of deferred revenue     (1,337 )     (2,058 )
Amortization of advance royalties     773       602  
Amortization of debt issuance costs     1,976       1,079  
Amortization of actuarial gain     (4,796 )     (133 )
Provision for doubtful accounts     2,000       496  
Equity in net loss/(income) of unconsolidated affiliates     132       (342 )
Distributions from unconsolidated affiliate     -       232  
Loss on retirement of advance royalties     144       40  
Loss on asset impairments     -       4,512  
Loss on business disposal     119,160       -  
(Gain) on sale/disposal of assets—net     (420 )     (1,172 )
Equity-based compensation     528       25  
Changes in assets and liabilities:                
Accounts receivable     (54 )     3,308  
Inventories     (237 )     3,373  
Advance royalties     (1,782 )     (1,456 )
Prepaid expenses and other assets     21       561  
Accounts payable     (78 )     (1,390 )
Accrued expenses and other liabilities     (3,648 )     421  
Asset retirement obligations     (161 )     (467 )
Postretirement benefits     (45 )     210  
Net cash provided by operating activities     5,109       13,928  
CASH FLOWS FROM CONTINUING AND DISCONTINUED INVESTING ACTIVITIES:                
Additions to property, plant, and equipment     (5,892 )     (12,060 )
Proceeds from sales of property, plant, and equipment     348       7,519  
Proceeds from sale of Elk Horn     10,650          
Return of capital from unconsolidated affiliates     -       35  
Net cash used in investing activities     5,106       (4,506 )
CASH FLOWS FROM CONTINUING AND DISCONTINUED FINANCING ACTIVITIES:                
Borrowings on line of credit     80,450       75,650  
Repayments on line of credit     (91,300 )     (82,100 )
Restricted cash from Royal contribution     (2,000 )        
Repayments on long-term debt     (1,210 )     (156 )
Gain on debt extinguishment     (1,663 )        
Distributions to unitholders     (24 )     (1,267 )
General partner’s contributions     -       1  
Payments on debt issuance costs     (1,510 )     (2,062 )
Limited partner contributions     7,000       -  
Net cash used in financing activities     (10,257 )     (9,934 )
NET DECREASE IN CASH AND CASH EQUIVALENTS     (42 )     (512 )
CASH AND CASH EQUIVALENTS—Beg of period     78       626  
CASH AND CASH EQUIVALENTS—End of period   $ 36     $ 114  

 

See notes to unaudited condensed consolidated financial statements.

 

  4  
 

 

RHINO RESOURCE PARTNERS LP

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

AS OF SEPTEMBER 30, 2016 AND DECEMBER 31, 2015 AND FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 2016 AND 2015

 

1. BASIS OF PRESENTATION AND ORGANIZATION

 

Basis of Presentation and Principles of Consolidation — The accompanying unaudited interim financial statements include the accounts of Rhino Resource Partners LP and its subsidiaries (the “Partnership”). Intercompany transactions and balances have been eliminated in consolidation.

 

Unaudited Interim Financial Information —The accompanying unaudited interim financial statements have been prepared in accordance with generally accepted accounting principles for interim financial information. The condensed consolidated statement of financial position as of September 30, 2016, condensed consolidated statements of operations and comprehensive income for the three and nine months ended September 30, 2016 and 2015 and the condensed consolidated statements of cash flows for the nine months ended September 30, 2016 and 2015 include all adjustments that the Partnership considers necessary for a fair presentation of the financial position, operating results and cash flows for the periods presented. The condensed consolidated statement of financial position as of December 31, 2015 was derived from audited financial statements, but does not include all disclosures required by accounting principles generally accepted in the United States of America (“U.S.”). The Partnership filed its Annual Report on Form 10-K for the year ended December 31, 2015 with the Securities and Exchange Commission (“SEC”), which included all information and notes necessary for such presentation. The results of operations for the interim periods are not necessarily indicative of the results to be expected for the year or any future period. These unaudited interim financial statements should be read in conjunction with the audited financial statements included in the Partnership’s Annual Report on Form 10-K for the year ended December 31, 2015 filed with the SEC.

 

Organization —Rhino Resource Partners LP is a Delaware limited partnership formed on April 19, 2010 to acquire Rhino Energy LLC (the “Predecessor” or the “Operating Company”). The Operating Company and its wholly owned subsidiaries produce and market coal from surface and underground mines in Kentucky, Ohio, West Virginia, and Utah. The majority of sales are made to domestic utilities and other coal-related organizations in the United States.

 

On January 21, 2016, a definitive agreement (“Definitive Agreement”) was completed between Royal Energy Resources, Inc. (“Royal”) and Wexford Capital LP (“Wexford Capital”) whereby Royal acquired 6,769,112 issued and outstanding common units of the Partnership from Wexford Capital for $3.5 million. The Definitive Agreement also included the committed acquisition by Royal within sixty days from the date of the Definitive Agreement of all of the issued and outstanding membership interests of Rhino GP LLC, the general partner of the Partnership (the “General Partner”), as well as 9,455,252 issued and outstanding subordinated units of the Partnership from Wexford Capital for $1.0 million.

 

  5  
 

 

On March 17, 2016, Royal completed the acquisition of all of the issued and outstanding membership interests of Rhino GP LLC as well as the 9,455,252 issued and outstanding subordinated units from Wexford Capital. Royal obtained control of, and a majority limited partner interest, in the Partnership with the completion of this transaction.

 

On March 21, 2016, the Partnership and Royal entered into a securities purchase agreement (the “Securities Purchase Agreement”) pursuant to which the Partnership issued 60,000,000 common units in the Partnership to Royal in a private placement at $0.15 per common unit for an aggregate purchase price of $9.0 million. Royal paid the Partnership $2.0 million in cash and delivered a promissory note payable to the Partnership in the amount of $7.0 million. The promissory note is payable in three installments: (i) $3.0 million on July 31, 2016; (ii) $2.0 million on or before September 30, 2016 and (iii) $2.0 million on or before December 31, 2016. In the event the disinterested members of the board of directors of the General Partner determine that the Partnership does not need the capital that would be provided by either or both installments set forth in (ii) and (iii) above, in each case, the Partnership has the option to rescind Royal’s purchase of 13,333,333 common units and the applicable installment will not be payable (each, a “Rescission Right”). If the Partnership fails to exercise a Rescission Right, in each case, the Partnership has the option to repurchase 13,333,333 common units at $0.30 per common unit from Royal (each, a “Repurchase Option”). The Repurchase Options terminate on December 31, 2017. Royal’s obligation to pay any installment of the promissory note is subject to certain conditions, including that the Operating Company has entered into an agreement to extend the amended and restated credit agreement, as amended, to a date no sooner than December 31, 2017. In the event such conditions are not satisfied as of the date each installment is due, Royal has the right to cancel the remaining unpaid balance of the promissory note in exchange for the surrender of such number of common units equal to the principal balance of the promissory note divided by $0.15. On May 13, 2016 and September 30, 2016, Royal paid the Partnership $3.0 million and $2.0 million, respectively, for the promissory note installments that were due July 31, 2016 and September 30, 2016, respectively. The payments were made in relation to the fifth amendment of the amended and restated credit agreement completed on May 13, 2016. See Note 8 for more information on the fifth amendment to the amended and restated credit agreement.

 

On September 30, 2016, the Partnership entered into an equity exchange agreement (the “Agreement”) with Royal, Rhino Resource Partners Holdings, LLC (“Rhino Holdings”), an entity wholly owned by certain investment partnerships managed by Yorktown Partners LLC (“Yorktown”) and the General Partner. Investment partnerships managed by Yorktown own substantially all of the outstanding common stock of Armstrong Energy, Inc. (“Armstrong Energy”), a coal producing company with mines located in the Illinois Basin in western Kentucky. The Agreement contemplates that prior to closing, Yorktown will contribute its shares of common stock of Armstrong Energy to Rhino Holdings. At the closing, Rhino Holdings will contribute those shares to the Partnership in exchange for 10 million newly issued common units of the Partnership. The Agreement also contemplates that the General Partner, currently owned and controlled by Royal, will issue a 50% ownership of the General Partner to Rhino Holdings in connection with the issuance of the common units of the Partnership for the common stock of Armstrong Energy. Closing of the Agreement is conditioned upon (i) the current bondholders of Armstrong Energy agreeing to restructure their bonds and (ii) the Partnership refinancing its amended and restated credit agreement with funds from an equity investment into the Partnership to be arranged by Rhino Holdings. The Agreement is also subject to other standard closing conditions and required approvals. The Agreement contains customary covenants, representations and warranties and indemnification obligations for breaches of, or the inaccuracy of representations or warranties or breaches of covenants contained in, the Agreement and associated agreements. The Partnership has also agreed to enter into a registration rights agreement with Rhino Holdings that provides Rhino Holdings with the right to demand two shelf registration statements and registration statements on Form S-1, as well as piggyback registration rights. The Agreement may be terminated by the mutual written consent of the Partnership and Rhino Holdings or by either the Partnership or Rhino Holdings if: (i) the closing has not occurred on or before December 31, 2016 (unless the closing is as a result of such terminating party’s inability or failure to satisfy the conditions to the closing or if the non-terminating party has filed an action seeking specific performance); (ii) a law or order issued by a governmental authority prevents the closing from occurring (unless such law or order resulted from such party’s failure to perform its obligations under the Agreement); (iii) the board of directors of the General Partner fails to approve the transactions or transaction documents contemplated by the Agreement; or (iv) the lenders of the Partnership’s credit facility fail to approve the transactions and transaction documents contemplated by the Agreement. The parties anticipate the Agreement will be consummated on or before December 31, 2016.

 

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On April 18, 2016, the Partnership completed a 1-for-10 reverse split on its common units and subordinated units. Pursuant to the reverse split, common unitholders received one common unit for every 10 common units owned on April 18, 2016 and subordinated unitholders received one subordinated unit for every 10 subordinated units owned on April 18, 2016. Any fractional units resulting from the reverse unit split were rounded to the nearest whole unit. The reverse unit split was intended to increase the market price per unit of Rhino’s common units in order to comply with the New York Stock Exchange’s (“NYSE”) continued listing standards.

 

As previously reported, on December 17, 2015, the Partnership was notified by the NYSE that the NYSE had determined to commence proceedings to delist its common units from the NYSE as a result of the Partnership’s failure to comply with the continued listing standard set forth in Section 802.01B of the NYSE Listed Company Manual to maintain an average global market capitalization over a consecutive 30 trading-day period of at least $15 million. The NYSE also suspended the trading of the Partnership’s common units at the close of trading on December 17, 2015. On January 4, 2016, the Partnership filed an appeal with the NYSE to review the suspension and delisting determination of its common units. The NYSE held a hearing regarding the Partnership’s appeal on April 20, 2016 and affirmed its prior decision to delist the Partnership’s common units. On April 27, 2016, the NYSE filed with the SEC a notification of removal from listing and registration on Form 25 to delist the Partnership’s common units and terminate the registration of the Partnership’s common units under Section 12(b) of the Securities Exchange Act of 1934. The delisting became effective on May 9, 2016. The Partnership’s common units trade on the OTCQB Marketplace under the ticker symbol “RHNO.”

 

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2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND GENERAL

 

Investments in Unconsolidated Affiliates. Investments in other entities are accounted for using the consolidation, equity method or cost basis depending upon the level of ownership, the Partnership’s ability to exercise significant influence over the operating and financial policies of the investee and whether the Partnership is determined to be the primary beneficiary of a variable interest entity. Equity investments are recorded at original cost and adjusted periodically to recognize the Partnership’s proportionate share of the investees’ net income or losses after the date of investment. Any losses from the Partnership’s equity method investments are absorbed by the Partnership based upon its proportionate ownership percentage. If losses are incurred that exceed the Partnership’s investment in the equity method entity, then the Partnership must continue to record its proportionate share of losses in excess of its investment. Investments are written down only when there is clear evidence that a decline in value that is other than temporary has occurred.

 

In May 2008, the Operating Company entered into a joint venture, Rhino Eastern LLC (“Rhino Eastern”), with an affiliate of Patriot Coal Corporation (“Patriot”) to acquire the Eagle mining complex located in Central Appalachia. The Partnership accounted for the investment in the joint venture and its results of operations under the equity method. In January 2015, the Partnership completed a Membership Transfer Agreement (the “Transfer Agreement”) with an affiliate of Patriot that terminated the Rhino Eastern joint venture. Pursuant to the Transfer Agreement, Patriot sold and assigned its 49% membership interest in the Rhino Eastern joint venture to the Partnership and, in consideration of this transfer, Patriot received certain fixed assets, leased equipment and coal reserves associated with the mining area previously operated by the Rhino Eastern joint venture. Patriot also assumed substantially all of the active workforce related to the Eagle mining area that was previously employed by the Rhino Eastern joint venture. The Partnership retained approximately 34 million tons of coal reserves that are not related to the Eagle mining area as well as a prepaid advanced royalty balance. As part of the closing of the Transfer Agreement, the Partnership and Patriot agreed to a dissolution payment based upon a final working capital adjustment calculation as defined in the Transfer Agreement. Refer to Note 16 for information on the financial statement impact of the Rhino Eastern dissolution completed in January 2015.

 

In December 2012, the Partnership made an initial investment of approximately $2.0 million in a new joint venture, Muskie Proppant LLC (“Muskie”), with affiliates of Wexford Capital. Muskie was formed to provide sand for fracking operations to drillers in the Utica Shale region and other oil and natural gas basins in the United States. The Partnership accounted for the investment in the joint venture and results of operations under the equity method. In November 2014, the Partnership contributed its interest in Muskie to Mammoth Energy Partners LP (“Mammoth”), which is discussed below.

 

In November 2014, the Partnership contributed its investment interest in Muskie to Mammoth in return for a limited partner interest in Mammoth. Mammoth was formed to own various companies that provide services to companies, which engage in the exploration and development of North American onshore unconventional oil and natural gas reserves. Mammoth’s companies provide services that include completion and production services, contract land and directional drilling services and remote accommodation services. The non-cash transaction was a contribution of the Partnership’s investment interest in the Muskie entity for an investment interest in Mammoth. Thus, the Partnership determined that the non-cash exchange of the Partnership’s ownership interest in Muskie did not result in any gain or loss. As of September 30, 2016 and 2015, the Partnership has recorded its investment in Mammoth of $1.9 million as a long-term asset, which the Partnership records as a cost method investment based upon its ownership percentage. In October 2016, the Partnership contributed its limited partner interests in Mammoth to Mammoth Energy Services, Inc. in exchange for 234,300 shares of common stock of Mammoth Energy Services, Inc. See Subsequent Events Note 18 for further details. The Partnership has included its investment in Mammoth and its prior investment in Muskie in its Other category for segment reporting purposes.

 

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In September 2014, the Partnership made an initial investment of $5.0 million in a new joint venture, Sturgeon Acquisitions LLC (“Sturgeon”), with affiliates of Wexford Capital and Gulfport Energy (“Gulfport”), a publicly traded company. Sturgeon subsequently acquired 100% of the outstanding equity interests of certain limited liability companies located in Wisconsin that provide frac sand for oil and natural gas drillers in the United States. The Partnership accounts for the investment in the joint venture and results of operations under the equity method. The Partnership recorded its proportionate share of the operating (loss) for Sturgeon for the three and nine months ended September 30, 2016 of approximately ($27,000) and ($0.1) million, respectively. The Partnership recorded its proportionate share of the operating income for Sturgeon for the three and nine months ended September 30, 2015 of approximately $0.1 million and $0.3 million, respectively. The Partnership has included the operating activities of Sturgeon in its Other category for segment reporting purposes.

 

Recently Issued Accounting Standards. In May 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2014-09, “Revenue from Contracts with Customers” (“ASU 2014-09”). ASU 2014-09 clarifies the principles for recognizing revenue and establishes a common revenue standard for U.S. financial reporting purposes. The guidance in ASU 2014-09 affects any entity that either enters into contracts with customers to transfer goods or services or enters into contracts for the transfer of nonfinancial assets unless those contracts are within the scope of other standards (for example, insurance contracts or lease contracts). ASU 2014-09 supersedes the revenue recognition requirements in Accounting Standards Codification (“ASC”) 605, Revenue Recognition , and most industry-specific accounting guidance. Additionally, ASU 2014-09 supersedes some guidance included in ASC 605-35, Revenue Recognition—Construction-Type and Production-Type Contracts . In addition, the existing requirements for the recognition of a gain or loss on the transfer of nonfinancial assets that are not in a contract with a customer (for example, assets within the scope of ASC 360, Property, Plant, and Equipment , and intangible assets within the scope of ASC 350, Intangibles—Goodwill and Other ) are amended to be consistent with the guidance on recognition and measurement (including the constraint on revenue) in ASU 2014-09. In July 2015, the FASB approved to defer the effective date of ASU 2014-09 by one year. Accordingly, ASU 2014-09 will be effective for public entities for annual reporting periods beginning after December 15, 2017 and interim periods therein. The Partnership is evaluating the requirements of this new accounting guidance.

 

In January 2015, the FASB issued ASU 2015-01, “Income Statement-Extraordinary and Unusual Items”. ASC 225-20, Income Statement—Extraordinary and Unusual Items, required that an entity separately classify, present, and disclose extraordinary events and transactions. ASU 2015-01 eliminates the concept of extraordinary items. The amendments in ASU 2015-01 are effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2015. A reporting entity may apply the amendments prospectively. A reporting entity also may apply the amendments retrospectively to all prior periods presented in the financial statements. Early adoption is permitted provided that the guidance is applied from the beginning of the fiscal year of adoption. The effective date is the same for both public business entities and all other entities. The adoption of ASU 2015-01 on January 1, 2016 did not have a material impact on the Partnership’s financial statements.

 

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In February 2015, the FASB issued ASU 2015-02, “Consolidation”. ASU 2015-02 affects reporting entities that are required to evaluate whether they should consolidate certain legal entities. All legal entities are subject to reevaluation under the revised consolidation model. Specifically, the amendments of ASU 2015-02: a) modify the evaluation of whether limited partnerships and similar legal entities are variable interest entities (VIEs) or voting interest entities, b) eliminate the presumption that a general partner should consolidate a limited partnership, c) affect the consolidation analysis of reporting entities that are involved with VIEs, particularly those that have fee arrangements and related party relationships and d) provide a scope exception from consolidation guidance for reporting entities with interests in legal entities that are required to comply with or operate in accordance with requirements that are similar to those in Rule 2a-7 of the Investment Company Act of 1940 for registered money market funds. ASU 2015-02 is effective for public business entities for fiscal years, and for interim periods within those fiscal years, beginning after December 15, 2015. Early adoption is permitted, including adoption in an interim period. If an entity early adopts the amendments in an interim period, any adjustments should be reflected as of the beginning of the fiscal year that includes that interim period. A reporting entity may apply the amendments in this Update using a modified retrospective approach by recording a cumulative-effect adjustment to equity as of the beginning of the fiscal year of adoption. A reporting entity also may apply the amendments retrospectively. The adoption of ASU 2015-02 on January 1, 2016 did not have a material impact on the Partnership’s financial statements.

 

In April 2015, the FASB issued ASU 2015-03, “Interest—Imputation of Interest (Subtopic 835-30)-Simplifying the Presentation of Debt Issuance Costs”. ASU 2015-03 requires that debt issuance costs related to a recognized debt liability be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability, consistent with debt discounts. Prior to ASU 2015-03, debt issuance costs have been presented in the balance sheet as a deferred charge, or asset. The recognition and measurement guidance for debt issuance costs are not affected by the amendments in this ASU. For public business entities, ASU 2015-03 is effective for financial statements issued for fiscal years beginning after December 15, 2015, and interim periods within those fiscal years. Early adoption of ASU 2015-03 is permitted for financial statements that have not been previously issued. In addition, ASU 2015-03 requires entities to apply the new guidance on a retrospective basis, wherein the balance sheet of each individual period presented should be adjusted to reflect the period-specific effects of applying the new guidance. The adoption of ASU 2015-03 on January 1, 2016 did not have a material impact on the Partnership’s financial statements.

 

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3. DISCONTINUED OPERATIONS

 

Elk Horn Coal Leasing

 

In August 2016, the Partnership entered into an agreement to sell its Elk Horn coal leasing company (“Elk Horn”) to a third party for total cash consideration of $12.0 million. The Partnership received $10.5 million in cash consideration upon the closing of the Elk Horn transaction and the remaining $1.5 million of consideration will be paid in ten equal monthly installments of $150,000 on the 20 th of each calendar month beginning on September 20, 2016. Elk Horn is a coal leasing company located in eastern Kentucky that has provided the Partnership with coal royalty revenues from coal properties owned by Elk Horn and leased to third-party operators. As of December 31, 2015, Elk Horn controlled approximately 100 million tons of proven and probable steam coal reserves. During the second quarter of 2016, the Partnership evaluated the Elk Horn assets for potential impairment based upon the initial purchase price offered by the buyer and the continued deterioration of the Central Appalachia steam coal markets that had adversely affected Elk Horn’s financial results. The Partnership’s impairment analysis determined that a potential impairment existed since the carrying amount of the Elk Horn long-lived asset group exceeded the cash flows that would be generated from the purchase price offered from the buyer. Based on a market approach used to estimate the fair value of the Elk Horn long-lived asset group, the Partnership recorded total asset impairment charges of approximately $118.7 million related to Coal properties as of June 30, 2016. The disposal of the Elk Horn assets and liabilities in August 2016 resulted in an additional loss of $0.5 million. The total loss of $119.2 million from the Elk Horn disposal is recorded on the Loss on business disposal line in the Partnership’s unaudited condensed consolidated statements of cash flows for the nine months ended September 30, 2016. The total loss on the Elk Horn disposal as well as the previous operating results of Elk Horn have been reclassified and reported on the (Loss)/gain from discontinued operations line on the Partnership’s unaudited condensed consolidated statements of operations and comprehensive income for the three and nine months ended September 30, 2016 and 2015. The current and non-current assets and liabilities previously related to Elk Horn have been reclassified to the appropriate held for sale categories on the Partnership’s unaudited condensed consolidated statements of financial position for the year ended December 31, 2015.

 

Utica Shale Oil and Natural Gas Assets

 

Beginning in 2011, the Partnership and an affiliate of Wexford Capital participated with Gulfport to acquire interests in a portfolio of oil and natural gas leases in the Utica Shale, which consisted of a 5% interest in a total of approximately 152,300 gross acres, or approximately 7,615 net acres. In March 2014, the Partnership completed a purchase and sale agreement with Gulfport to sell the Partnership’s oil and natural gas properties in the Utica Shale region. In addition, in January 2014, the Partnership received approximately $8.4 million of net proceeds from the sale by Blackhawk Midstream LLC (“Blackhawk”) of its equity interest in two entities, Ohio Gathering Company, LLC and Ohio Condensate Company, LLC, to Summit Midstream Partners, LLC. As part of the joint operating agreement for the Utica Shale investment discussed above, the Partnership had the right to approximately 5% of the proceeds of the sale by Blackhawk. In February 2015, the Partnership received approximately $0.7 million in additional proceeds from the sale by Blackhawk that had been held in escrow. For the nine months ended September 30, 2015, the Partnership recorded the $0.7 million in Income from discontinued operations in the unaudited condensed consolidated statements of operations and comprehensive income. The gain from the Blackhawk transaction is included in the (Gain) on sale/disposal of assets—net line in the operating activities section of the Partnership’s unaudited condensed consolidated statements of cash flows. The proceeds from the Blackhawk transaction are included in the Proceeds from sales of property, plant, and equipment line in the investing activities section of the Partnership’s unaudited condensed consolidated statements of cash flows.

 

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4. PREPAID EXPENSES AND OTHER CURRENT ASSETS

 

Prepaid expenses and other current assets as of September 30, 2016 and December 31, 2015 consisted of the following:

 

    September 30, 2016     December 31, 2015  
    (in thousands)  
Other prepaid expenses   $ 402     $ 675  
Debt issuance costs—net     -       2,155  
Prepaid insurance     1,969       1,492  
Prepaid leases     97       80  
Supply inventory     872       901  
Deposits     164       164  
Restricted cash from Royal contribution     2,000       -  
Note receivable     1,350       -  
Total Prepaid expenses and other   $ 6,854     $ 5,467  

 

Debt issuance costs were included in Prepaid expenses and other current assets as of December 31, 2015 since the Partnership classified its credit facility balance as a current liability prior to the fifth amendment to the credit facility completed in May 2016. See Note 6 for further information on debt issuance costs and accumulated amortization of debt issuance costs as of September 30, 2016 and December 31, 2015. See Note 8 for further information on the amendments to the amended and restated senior secured credit facility.

 

The $2.0 million of restricted cash relates to the Royal contribution made to the Partnership on September 30, 2016 and described in Note 1. The contribution was completed after the close of business on September 30, 2016 and was restricted to reduce the Partnership’s outstanding balance on its credit facility balance per the fifth amendment to the Partnership’s amended and restated credit agreement described further in Note 8.

 

The $1.4 million note receivable relates to the $1.5 million of consideration to be paid in ten equal monthly installments of $150,000 for the Elk Horn sale discussed earlier. The first installment was paid in September 2016.

 

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5. PROPERTY, PLANT AND EQUIPMENT

 

Property, plant and equipment, including coal properties and mine development and construction costs, as of September 30, 2016 and December 31, 2015 are summarized by major classification as follows:

 

    Useful Lives   September 30, 2016     December 31, 2015  
        (in thousands)  
Land and land improvements       $ 17,671     $ 18,285  
Mining and other equipment and related facilities   2 - 20 Years     305,186       304,692  
Mine development costs   1 - 15 Years     57,365       64,262  
Coal properties   1 - 15 Years     68,383       94,390  
Construction work in process         599       2,680  
Total         449,204       484,309  
Less accumulated depreciation, depletion and amortization         (261,473 )     (258,739 )
Net       $ 187,731     $ 225,570  

 

Depreciation expense for mining and other equipment and related facilities, depletion expense for coal properties and oil and natural gas properties, amortization expense for mine development costs, amortization expense for intangible assets and amortization expense for asset retirement costs for the three and nine months ended September 30, 2016 and 2015 were as follows:

 

    Three Months Ended September 30,     Nine Months Ended September 30,  
    2016     2015     2016     2015  
    (in thousands)  
Depreciation expense-mining and other equipment and related facilities   $ 5,597     $ 7,194     $ 15,908     $ 22,138  
Depletion expense for coal properties and oil and natural gas properties     404       307       1,224       1,053  
Amortization expense for mine development costs     511       465       1,294       1,545  
Amortization expense for intangible assets     -       12       -       35  
Amortization expense for asset retirement costs     (23 )     (140 )     (85 )     (315 )
Total depreciation, depletion and amortization   $ 6,489     $ 7,838     $ 18,341     $ 24,456  

 

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6. OTHER NON-CURRENT ASSETS

 

Other non-current assets as of September 30, 2016 and December 31, 2015 consisted of the following:

 

    September 30, 2016     December 31, 2015  
    (in thousands)  
Deposits and other   $ 185     $ 138  
Debt issuance costs—net     1,690       -  
Non-current receivable     23,908       23,908  
Note Receivable     -       2,000  
Deferred expenses     223       260  
Total   $ 26,006     $ 26,306  

 

Debt issuance costs were included in Prepaid expenses and other current assets as of December 31, 2015 since the Partnership classified its credit facility balance as a current liability prior to the fifth amendment to the credit facility completed in May 2016 and discussed further below (see Note 4 for Prepaid expenses and other current assets). Debt issuance costs were $13.1 million and $11.6 million as of September 30, 2016 and December 31, 2015, respectively. Accumulated amortization of debt issuance costs were $11.4 million and $9.4 million as of September 30, 2016 and December 31, 2015, respectively.

 

In April 2015, the Partnership entered into a third amendment of its amended and restated senior secured credit facility that reduced the borrowing commitment to $100 million. As part of executing the third amendment to the amended and restated senior secured credit facility, the Operating Company paid a fee of approximately $2.1 million to the lenders in April 2015, which was recorded as an addition to Debt issuance costs. The Partnership wrote-off approximately $0.2 million of its remaining unamortized debt issuance costs since the third amendment reduced the borrowing commitment under the amended and restated senior secured credit facility.

 

In March 2016, the Partnership entered into a fourth amendment of its amended and restated senior secured credit facility that reduced the borrowing commitment to $80 million. As part of executing the fourth amendment to the amended and restated senior secured credit facility, the Operating Company paid a fee of approximately $0.4 million to the lenders in March 2016, which was recorded as an addition to Debt issuance costs. The Partnership wrote-off approximately $0.2 million of its remaining unamortized debt issuance costs since the fourth amendment reduced the borrowing commitment under the amended and restated senior secured credit facility.

 

In May 2016, the Partnership entered into a fifth amendment of its amended and restated senior secured credit facility that reduced the borrowing commitment to $75 million. As part of executing the fifth amendment to the amended and restated senior secured credit facility, the Operating Company paid a fee of approximately $1.2 million to the lenders in May 2016, which was recorded as an addition to Debt issuance costs. The Partnership wrote-off approximately $0.1 million of its remaining unamortized debt issuance costs since the fifth amendment reduced the borrowing commitment under the amended and restated senior secured credit facility. See Note 8 for further information on the amendments to the amended and restated senior secured credit facility.

 

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The non-current receivable balance of $23.9 million as of September 30, 2016 and December 31, 2015 consisted of the amount due from the Partnership’s workers’ compensation insurance providers for potential claims against the Partnership that are the primary responsibility of the Partnership, which are covered under the Partnership’s insurance policies. The $23.9 million is also included in the Partnership’s accrued workers’ compensation benefits liability balance, which is included in the non-current liabilities section of the Partnership’s unaudited condensed consolidated statements of financial position. The Partnership presents this amount on a gross asset and liability basis since a right of setoff does not exist per the accounting guidance in ASC Topic 210, Balance Sheet . This presentation has no impact on the Partnership’s results of operations or cash flows.

 

The Partnership recorded a $2.0 million note receivable from a third party at December 31, 2015 related to the sale of the Partnership’s Deane mining complex in eastern Kentucky. The note accrued interest with initial interest payments due beginning June 2016 and the final principal due December 31, 2017. The Partnership has not received any of the scheduled interest payments from the third party as of September 30, 2016 and ongoing discussions with the third party indicated it was more likely than not that the Partnership would not receive the balance of the note receivable. While the Partnership continues discussions with the third party for collection of the note receivable, the Partnership recorded a $2.0 million reserve against the note receivable as of September 30, 2016.

 

7. ACCRUED EXPENSES AND OTHER CURRENT LIABILITIES

 

Accrued expenses and other current liabilities as of September 30, 2016 and December 31, 2015 consisted of the following:

 

    September 30, 2016     December 31, 2015  
    (in thousands)  
Payroll, bonus and vacation expense   $ 1,106     $ 1,439  
Non income taxes     2,595       2,993  
Royalty expenses     1,656       1,566  
Accrued interest     1,039       571  
Health claims     688       817  
Workers’ compensation & pneumoconiosis     1,150       1,150  
Accrued insured litigation claims     302       266  
Other     565       2,247  
Total   $ 9,101     $ 11,049  

 

The $0.3 million accrued for insured litigation claims as of September 30, 2016 and December 31, 2015 consists of probable and estimable litigation claims that are the primary obligation of the Partnership. The amount accrued for litigation claims is also due from the Partnership’s insurance providers and is included in Accounts receivable, net of allowance for doubtful accounts on the Partnership’s unaudited condensed consolidated statements of financial position. The Partnership presents this amount on a gross asset and liability basis, as a right of setoff does not exist per the accounting guidance in ASC Topic 210, Balance Sheet . This presentation has no impact on the Partnership’s results of operations or cash flows.

 

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8. DEBT

 

Debt as of September 30, 2016 and December 31, 2015 consisted of the following:

 

    September 30, 2016     December 31, 2015  
    (in thousands)  
Senior secured credit facility with PNC Bank, N.A.   $ 30,350     $ 41,200  
Other notes payable     -       2,874  
Total     30,350       44,074  
Less current portion     -       (41,479 )
Long-term debt   $ 30,350     $ 2,595  

 

Senior Secured Credit Facility with PNC Bank, N.A. —On July 29, 2011, the Operating Company and the Partnership, as a guarantor, executed an amended and restated senior secured credit facility with PNC Bank, N.A., as administrative agent, and a group of lenders, which are parties thereto. The maximum availability under the amended and restated credit facility was $300.0 million, with a one-time option to increase the availability by an amount not to exceed $50.0 million. Of the $300.0 million, $75.0 million was available for letters of credit. As described below, in April 2015, March 2016 and May 2016, the amended and restated credit facility was amended and the borrowing commitment under the facility was reduced to $75 million, with the amount available for letters of credit reduced to $30 million. Borrowings under the facility bear interest, which per the March 2016 amendment described further below, is based upon the current PRIME rate plus an applicable margin of 3.50%. As part of the agreement, the Operating Company is required to pay a commitment fee on the unused portion of the borrowing availability. Borrowings on the amended and restated senior secured credit facility are collateralized by all of the unsecured assets of the Partnership. The amended and restated senior secured credit facility requires the Partnership to maintain certain minimum financial ratios and contains certain restrictive provisions, including among others, restrictions on making loans, investments and advances, incurring additional indebtedness, guaranteeing indebtedness, creating liens and selling or assigning stock. The Partnership was in compliance with all covenants contained in the amended and restated senior secured credit facility as of and for the twelve-month period ended September 30, 2016. Per the May 2016 amendment described further below, the amended and restated senior secured credit facility is set to expire on July 31, 2017, with the possibility to extend the facility to December 31, 2017 if certain conditions are met as described below.

 

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In April 2015, the Partnership entered into a third amendment of its amended and restated senior secured credit facility. The third amendment reduced the borrowing commitment under the credit facility to a maximum of $100 million and reduced the amount available for letters of credit to $50 million. The third amendment also provides that the disposition of any assets by the Partnership consisting of net cash proceeds up to an aggregate $35 million shall reduce the total commitment under the facility on a dollar-for-dollar basis by up to a total of $10 million, and any dispositions of assets in excess of $35 million in the aggregate shall reduce the commitment under the facility on a dollar-for-dollar basis. The third amendment limits the Partnership’s quarterly distributions to a maximum of $0.035 per unit unless (i) the pro forma leverage ratio of the Partnership, immediately prior to and after giving effect to such distribution, is less than or equal to 3.0 to 1.0 and (ii) the amount of borrowings available under the credit facility, immediately prior to and after giving effect to such distribution, is at least $20 million. In addition, the third amendment removed the interest coverage ratio covenant and replaced it with a minimum fixed charge coverage ratio, which consists of the ratio of consolidated EBITDA minus maintenance capital expenditures to fixed charges. Fixed charges are defined in the third amendment to include the sum of cash interest expense, scheduled principal installments on indebtedness (as adjusted for prepayments), dividends and distributions. Commencing with the quarter ended September 30, 2015, the fixed charge coverage ratio for the trailing four quarters must be a minimum of 1.1 to 1.0. The third amendment also limits any investments made by the Partnership, including investments in hydrocarbons, to $10 million provided that the leverage ratio is less than or equal to 3.0 to 1.0 and the borrowers’ available liquidity is at least $20 million. The third amendment does not permit the Partnership to issue any new equity of the Partnership unless the proceeds of such equity issuance are used to reduce the outstanding borrowings under the facility. Issuances of equity under the Partnership’s long-term incentive plan are excluded from this requirement. The third amendment limits the amount of the Partnership’s capital expenditures to $20.0 million for fiscal year 2015 and limits capital expenditures to $27.5 million for each fiscal year after 2015. However, to the extent that capital expenditures for any fiscal year are less than indicated above, the Partnership may increase the following year’s capital expenditures by the lesser of such unused amount or $5.0 million. As part of executing the third amendment to the amended and restated senior secured credit facility, the Operating Company paid a fee of approximately $2.1 million to the lenders in April 2015, which was recorded in Debt issuance costs in Other non-current assets on the Partnership’s unaudited condensed consolidated statements of financial position. In addition, the Partnership recorded a non-cash charge of approximately $0.2 million to write-off a portion of its unamortized debt issuance costs since the third amendment reduced the borrowing commitment under the amended and restated senior secured credit facility, which was recorded in Interest expense on the Partnership’s unaudited condensed consolidated statements of operations and comprehensive income.

 

In March 2016, the Partnership entered into a fourth amendment (the “Fourth Amendment”) of its amended and restated senior secured credit facility. The Fourth Amendment amended the definition of change of control in the amended and restated credit agreement to permit Royal to purchase the membership interests of the General Partner and set the expiration of the facility to July 29, 2016. The Fourth Amendment reduced the borrowing capacity under the credit facility to a maximum of $80 million and reduced the amount available for letters of credit to $30 million. The Fourth Amendment eliminated the option to borrow funds utilizing the LIBOR rate plus an applicable margin and established the borrowing rate for all borrowings under the facility to be based upon the current PRIME rate plus an applicable margin of 3.50%. The Fourth Amendment eliminated the capability to make Swing Loans under the facility and eliminated the ability of the Partnership to pay distributions to its common or subordinated unitholders. The Fourth Amendment altered the maximum leverage ratio, calculated as of the end of the most recent month, on a trailing twelve-month basis, to 6.75 to 1.00. The leverage ratio shall be reduced by 0.50 to 1.00 for every $10 million of net cash proceeds, in the aggregate, received by the Partnership after the date of the Fourth Amendment from a liquidity event; provided, however, that in no event shall the maximum permitted leverage ratio be reduced below 3.00 to 1.00. A liquidity event is defined in the Fourth Amendment as the issuance of any equity by the Partnership on or after the Fourth Amendment effective date (other than the Royal equity contribution discussed above), or the disposition of any assets by the Partnership. The Fourth Amendment requires the Partnership to maintain minimum liquidity of $5 million and minimum EBITDA (as defined in the credit agreement), calculated as of the end of the most recent month, on a trailing twelve month basis, of $8 million. The Fourth Amendment limits the amount of the Partnership’s capital expenditures to $15 million, calculated as of end of the most recent month, on a trailing twelve-month basis. The Fourth Amendment requires the Partnership to provide monthly financial statements and a weekly rolling thirteen-week cash flow forecast to the administrative agent.

 

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On May 13, 2016, the Partnership entered into a fifth amendment (the “Fifth Amendment”) of its amended and restated senior secured credit facility that extends the term of the senior secured credit facility to July 31, 2017. Per the Fifth Amendment, the credit facility will be automatically extended to December 31, 2017 if revolving credit commitments are reduced to $55 million or less on or before July 31, 2017. The Fifth Amendment immediately reduces the revolving credit commitments under the credit facility to a maximum of $75 million and maintains the amount available for letters of credit at $30 million. The Fifth Amendment further reduces the revolving credit commitments over time on a dollar-for-dollar basis in amounts equal to each of the following: (i) the face amount of any letter of credit that expires or whose face amount is reduced by any such dollar amount, (ii) the net proceeds received from any asset sales, (iii) the Royal scheduled capital contributions (as outlined below), (iv) the net proceeds from the issuance of any equity by the Partnership up to $20.0 million (other than equity issued in exchange for any Royal contribution as outlined in the Securities Purchase Agreement or the Royal scheduled capital contributions to the Partnership as outlined below) and (v) the proceeds from the incurrence of any subordinated debt. The first $11 million of proceeds received from any equity issued by the Partnership described in clause (iv) above shall also satisfy the Royal scheduled capital contributions as outlined below. The Fifth Amendment requires Royal to contribute $2 million each quarter beginning September 30, 2016 through September 30, 2017 and $1 million on December 1, 2017, for a total of $11 million. The Fifth Amendment further reduces the revolving credit commitments as follows:

 

Date of Reduction   Reduction Amount
     
September 30, 2016   The lesser of (i) $2 million or (ii) the positive difference (if any) of $2 million minus the proceeds from the issuance of any Partnership equity (excluding any Royal equity contributions)
     
December 31, 2016   The lesser of (i) $2 million or (ii) the positive difference (if any) of $4 million minus the proceeds from the issuance of any Partnership equity (excluding any Royal equity contributions)
     
March 31, 2017   The lesser of (i) $2 million or (ii) the positive difference (if any) of $6 million minus the proceeds from the issuance of any Partnership equity (excluding any Royal equity contributions)
     
June 30, 2017   The lesser of (i) $2 million or (ii) the positive difference (if any) of $8 million minus the proceeds from the issuance of any Partnership equity (excluding any Royal equity contributions)
     
September 30, 2017   The lesser of (i) $2 million or (ii) the positive difference (if any) of $10 million minus the proceeds from the issuance of any Partnership equity (excluding any Royal equity contributions)
     
December 1, 2017   The lesser of (i) $1 million or (ii) the positive difference (if any) of $11 million minus the proceeds from the issuance of any Partnership equity (excluding any Royal equity contributions)

 

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The Fifth Amendment requires that on or before March 31, 2017, the Partnership shall have solicited bids for the potential sale of certain non-core assets, satisfactory to the administrative agent, and provided the administrative agent, and any other lender upon its request, with a description of the solicitation process, interested parties and any potential bids. The Fifth Amendment limits any payments by the Partnership to the General Partner to: (i) the usual and customary payroll and benefits of the Partnership’s management team so long as the Partnership’s management team remains employees of the General Partner, (2) the usual and customary board fees of the General Partner and (3) the usual and customary general and administrative costs and expenses of the General Partner incurred in connection with the operation of its business in an amount not to exceed $0.3 million per fiscal year. The Fifth Amendment limits asset sales to a maximum of $5 million unless the Partnership receives consent from the lenders. The Fifth Amendment alters the maximum leverage ratio, calculated as of the end of the most recent month, on a trailing twelve-month basis, as follows:

 

Period   Ratio
     
For the month ending April 30, 2016, through the month ending May 31, 2016   7.50 to 1.00
     
For the month ending June 30, 2016, through the month ending August 31, 2016   7.25 to 1.00
     
For the month ending September 30, 2016, through the month ending November 30, 2016   7.00 to 1.00
     
For the month ending December 31, 2016, through the month ending March 31, 2017   6.75 to 1.00
     
For the month ending April 30, 2017, through the month ending June 30, 2017   6.25 to 1.00
     
For the month ending July 31, 2017, through the month ending November 30, 2017   6.0 to 1.00
     
For the month ending December 31, 2017   5.50 to 1.00

 

The leverage ratios above shall be reduced by 0.50 to 1.00 for every $10 million of aggregate proceeds received by the Partnership from: (i) the issuance of equity by the Partnership (excluding any Royal capital contributions) and/or (ii) the proceeds received from the sale of assets, provided that the leverage ratio shall not be reduced below 3.50 to 1.00. The Fifth Amendment removes the $5.0 million minimum liquidity requirement and requires the Partnership to have any deposit, securities or investment accounts with a member of the lending group.

 

In July 2016, the Partnership entered into a sixth amendment (the “Sixth Amendment”) of its amended and restated senior secured credit facility that permitted the sale of Elk Horn that was discussed earlier. The Sixth Amendment reduced the maximum commitment amount allowed under the credit facility based on the initial cash proceeds of $10.5 million that were received for the Elk Horn sale. The Sixth Amendment further reduces the maximum commitment amount allowed under the credit facility for the additional $1.5 million to be received from the Elk Horn sale by $375,000 each quarterly period beginning September 30, 2016 through June 30, 2017.

 

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At September 30, 2016, the Operating Company had borrowings outstanding (excluding letters of credit) of $30.4 million at a variable interest rate of PRIME plus 3.50% (7.00% at September 30, 2016). In addition, the Operating Company had outstanding letters of credit of approximately $27.8 million at a fixed interest rate of 5.00% at September 30, 2016. Based upon a maximum borrowing capacity of 6.50 times a trailing twelve-month EBITDA calculation (as defined in the credit agreement), the Operating Company had available borrowing capacity of approximately $4.0 million at September 30, 2016.

 

Other Notes Payable —On July 7, 2016, the Partnership executed an agreement with the third party that held the approximately $2.8 million of other notes payable to settle the debt for $1.1 million of cash consideration. The Partnership paid the $1.1 million in July 2016 and recognized an approximate $1.7 million gain from the extinguishment of this debt.

 

9. ASSET RETIREMENT OBLIGATIONS

 

The changes in asset retirement obligations for the nine months ended September 30, 2016 and the year ended December 31, 2015 are as follows:

 

    September 30, 2016     December 31, 2015  
    (in thousands)  
Balance at beginning of period (including current portion)   $ 23,077     $ 29,883  
Accretion expense     1,114       2,082  
Adjustment resulting from addition of property     -       1,235  
Adjustment resulting from disposal of property (1)     -       (7,531 )
Adjustments to the liability from annual recosting and other     -       (2,078 )
Liabilities settled     (161 )     (514 )
Balance at end of period     24,030       23,077  
Less current portion of asset retirement obligation     (1,430 )     (767 )
Long-term portion of asset retirement obligation   $ 22,600     $ 22,310  

 

(1) The ($7.5) million adjustment for the year ended December 31, 2015 relates to the sale of the Partnership’s Deane mining complex.

 

10. EMPLOYEE BENEFITS

 

In conjunction with the acquisition of the coal operations of American Electric Power on April 16, 2004, the Operating Company acquired a postretirement benefit plan that provided healthcare to eligible employees at its Hopedale operations. The Partnership has no other postretirement plans.

 

On December 10, 2015, the Partnership notified the employees at its Hopedale operations that healthcare benefits from the postretirement benefit plan would cease on January 31, 2016. The negative plan amendment that arose on December 10, 2015 resulted in an approximate $6.5 million prior service cost benefit. The Partnership amortized the prior service cost benefit over the remaining term of the benefits provided through January 31, 2016. For the nine months ended September 30, 2016, the Partnership recognized a benefit of approximately $3.9 million from the plan amendment in the Cost of operations line of the unaudited condensed consolidated statements of operations and comprehensive income.

 

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Net periodic benefit cost for the three and nine months ended September 30, 2016 and 2015 are as follows:

 

    Three months ended September 30,     Nine months ended September 30,  
    2016     2015     2016     2015  
    (in thousands)  
Service costs   $ -     $ 67     $ -     $ 202  
Interest cost     -       51       -       152  
Amortization of (gain)     -       (44 )     (4,796 )     (133 )
Total   $ -     $ 74     $ (4,796 )   $ 221  

 

For the three and nine months ended September 30, 2016 and 2015, net periodic benefit costs, including the amortization of actuarial gain included in the table above, are included in Cost of operations in the Partnership’s unaudited condensed consolidated statements of operations and comprehensive income.

 

401(k) Plans —The Operating Company and certain subsidiaries sponsor defined contribution savings plans for all employees. Under one defined contribution savings plan, the Operating Company matches voluntary contributions of participants up to a maximum contribution based upon a percentage of a participant’s salary with an additional matching contribution possible at the Operating Company’s discretion. The expense under these plans for the three and nine months ended September 30, 2016 and 2015 is included in Cost of operations and Selling, general and administrative expense in the Partnership’s unaudited condensed consolidated statements of operations and comprehensive income and was as follows:

 

    Three months ended September 30,     Nine months ended September 30,  
    2016     2015     2016     2015  
    (in thousands)  
401(k) plan expense   $ 406     $ 501     $ 1,113     $ 1,640  

 

11. EQUITY-BASED COMPENSATION

 

In October 2010, the General Partner established the Rhino Long-Term Incentive Plan (the “Plan” or “LTIP”). The Plan is intended to promote the interests of the Partnership by providing to employees, consultants and directors of the General Partner, the Partnership or affiliates of either incentive compensation awards to encourage superior performance. The LTIP provides for grants of restricted units, unit options, unit appreciation rights, phantom units, unit awards, and other unit-based awards.

 

As of September 30, 2016, the General Partner had granted phantom units to certain employees and restricted units and unit awards to its directors. These grants consisted of annual restricted unit awards to directors and phantom unit awards with tandem distribution equivalent rights (“DERs”) granted in the first quarters from 2012 through 2015 to certain employees in connection with the prior year’s performance. The DERs consist of rights to accrue quarterly cash distributions in an amount equal to the cash distribution the Partnership makes to unitholders during the vesting period. These awards are subject to service based vesting conditions and any accrued distributions will be forfeited if the related awards fail to vest according to the relevant service based vesting conditions.

 

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The Partnership accounts for its unit-based awards as liabilities with applicable mark-to-market adjustments at each reporting period because the Compensation Committee of the board of directors of the General Partner has historically elected to pay some of the awards in cash in lieu of issuing common units.

 

As discussed in Note 1, on March 17, 2016, Royal completed the acquisition of all of the issued and outstanding membership interests of Rhino GP LLC as well as 9,455,252 issued and outstanding subordinated units from Wexford Capital. Royal obtained control of, and a majority limited partner interest, in the Partnership with the completion of this transaction, which constituted a change in control of the Partnership. The language in the Partnership’s phantom unit and restricted unit grant agreements states that all outstanding, unvested units will become immediately vested upon a change in control. The Partnership recognized approximately $10,000 of expense from the vesting of these units as a result of the change in control.

 

During the nine months ended September 30, 2016, the General Partner granted fully vested common units to its board of directors as well as certain members of management. The Partnership recognized approximately $0.6 million of expense for the nine months ended September 30, 2016 in relation to the common units granted.

 

12. COMMITMENTS AND CONTINGENCIES

 

Coal Sales Contracts and Contingencies —As of September 30, 2016, the Partnership had commitments under sales contracts to deliver annually scheduled base quantities of coal as follows:

 

Year   Tons (in thousands)     Number of customers  
2016 Q4     797       14  
2017     2,910       10  
2018     701       3  

 

Some of the contracts have sales price adjustment provisions, subject to certain limitations and adjustments, based on a variety of factors and indices.

 

Leases —The Partnership leases various mining, transportation and other equipment under operating leases. The Partnership also leases coal reserves under agreements that call for royalties to be paid as the coal is mined. Lease and royalty expense for the three and nine months ended September 30, 2016 and 2015 are included in Cost of operations in the Partnership’s unaudited condensed consolidated statements of operations and comprehensive income and was as follows:

 

    Three months ended September 30,     Nine months ended September 30,  
    2016     2015     2016     2015  
    (in thousands)  
Lease expense   $ 1,438     $ 2,582     $ 3,517     $ 5,001  
Royalty expense   $ 2,409     $ 2,301     $ 7,350     $ 8,659  

 

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Joint Ventures —The Partnership may contribute additional capital to the Timber Wolf joint venture that was formed in the first quarter of 2012. The Partnership did not make any capital contributions to the Timber Wolf joint venture during the nine months ended September 30, 2016 or 2015.

 

The Partnership may contribute additional capital to the Sturgeon joint venture that was formed in the third quarter of 2014. The Partnership made an initial capital contribution of $5.0 million during the third quarter ended September 30, 2014 based upon its proportionate ownership interest. The Partnership did not make any capital contributions to the Sturgeon joint venture during the nine months ended September 30, 2016 or 2015.

 

13. EARNINGS PER UNIT (“EPU”)

 

On April 18, 2016, the Partnership completed a 1-for-10 reverse split on its common units and subordinated units. The following tables present a reconciliation of the numerators and denominators of the basic and diluted EPU calculations for the periods ended September 30, 2016 and 2015, which include the retrospective application of the 1-for-10 reverse unit split:

 

Three months ended September 30, 2016   General
Partner
    Common
Unitholders
    Subordinated
Unitholders
 
    (in thousands, except per unit data)  
Numerator:                        
Interest in net (loss):                        
Net (loss) from continuing operations   $ (21 )   $ (2,758 )   $ (431 )
Net income from discontinued operations     (4 )     (494 )     (77 )
Total interest in net (loss)   $ (25 )   $ (3,252 )   $ (508 )
Impact of subordinated distribution suspension:                        
Net income/(loss) from continuing operations   $ -     $ -     $ -  
Net income from discontinued operations     -       -       -  
Interest in net income   $ -     $ -     $ -  
Interest in net (loss) for EPU purposes:                        
Net (loss) from continuing operations   $ (21 )   $ (2,758 )   $ (431 )
Net income from discontinued operations     (4 )     (494 )     (77 )
Interest in net (loss)   $ (25 )   $ (3,252 )   $ (508 )
Denominator:                        
Weighted average units used to compute basic EPU     n/a       7,906       1,236  
Effect of dilutive securities — LTIP awards:                        
Dilutive securities for net (loss) from continuing operations     n/a       -       -  
Dilutive securities for net income from discontinued operations     n/a       -       -  
Total dilutive securities     n/a       -       -  
Weighted average units used to compute diluted EPU     n/a       7,906       1,236  
                         
Net (loss)/income per limited partner unit, basic                        
Net (loss) per unit from continuing operations     n/a     $ (0.35 )   $ (0.35 )
Net income per unit from discontinued operations     n/a       (0.06 )     (0.06 )
Net (loss) per common unit, basic     n/a     $ (0.41 )   $ (0.41 )
Net (loss)/income per limited partner unit, diluted                        
Net (loss) per unit from continuing operations     n/a     $ (0.35 )   $ (0.35 )
Net income per unit from discontinued operations     n/a       (0.06 )     (0.06 )
Net (loss) per common unit, diluted     n/a     $ (0.41 )   $ (0.41 )

 

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Nine months ended September 30, 2016   General
Partner
    Common
Unitholders
    Subordinated
Unitholders
 
    (in thousands, except per unit data)  
Numerator:                        
Interest in net (loss)/income:                        
Net (loss) from continuing operations   $ (87 )   $ (7,144 )   $ (1,788 )
Net income from discontinued operations     (750 )     (93,734 )     (23,456 )
Total interest in net (loss)   $ (837 )   $ (100,878 )   $ (25,244 )
Impact of subordinated distribution suspension:                        
Net income/(loss) from continuing operations   $ -     $ -     $ -  
Net income from discontinued operations     -       -       -  
Interest in net income/(loss)   $ -     $ -     $ -  
Interest in net (loss)/income for EPU purposes:                        
Net (loss) from continuing operations   $ (87 )   $ (7,144 )   $ (1,788 )
Net income from discontinued operations     (750 )     (93,734 )     (23,456 )
Interest in net (loss)   $ (837 )   $ (100,878 )   $ (25,244 )
Denominator:                        
Weighted average units used to compute basic EPU     n/a       4,937       1,236  
Effect of dilutive securities — LTIP awards:                        
Dilutive securities for net (loss) from continuing operations     n/a       -       -  
Dilutive securities for net income from discontinued operations     n/a       -       -  
Total dilutive securities     n/a       -       -  
Weighted average units used to compute diluted EPU     n/a       4,937       1,236  
                         
Net (loss)/income per limited partner unit, basic                        
Net (loss) per unit from continuing operations     n/a     $ (1.45 )   $ (1.45 )
Net income per unit from discontinued operations     n/a       (18.98 )     (18.98 )
Net income per common unit, basic     n/a     $ (20.43 )   $ (20.43 )
Net (loss)/income per limited partner unit, diluted                        
Net (loss) per unit from continuing operations     n/a     $ (1.45 )   $ (1.45 )
Net income per unit from discontinued operations     n/a       (18.98 )     (18.98 )
Net income per common unit, diluted     n/a     $ (20.43 )   $ (20.43 )

 

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Three months ended September 30, 2015   General
Partner
    Common
Unitholders
    Subordinated
Unitholders
 
    (in thousands, except per unit data)  
Numerator:                        
Interest in net (loss):                        
Net (loss) from continuing operations   $ (208 )   $ (5,840 )   $ (4,334 )
Net income from discontinued operations     22       605       449  
Total interest in net (loss)   $ (186 )   $ (5,235 )   $ (3,885 )
Impact of subordinated distribution suspension:                        
Net income/(loss) from continuing operations   $ -     $ -     $ -  
Net income from discontinued operations     -       -       -  
Interest in net income/(loss)   $ -     $ -     $ -  
Interest in net (loss) for EPU purposes:                        
Net (loss) from continuing operations   $ (208 )   $ (5,840 )   $ (4,334 )
Net income from discontinued operations     22       605       449  
Interest in net (loss)   $ (186 )   $ (5,235 )   $ (3,885 )
Denominator:                        
Weighted average units used to compute basic EPU     n/a       1,671       1,240  
Effect of dilutive securities — LTIP awards:                        
Dilutive securities for net (loss) from continuing operations     n/a       -       -  
Dilutive securities for net income from discontinued operations     n/a       -       -  
Total dilutive securities     n/a       -       -  
Weighted average units used to compute diluted EPU     n/a       1,671       1,240  
                         
Net (loss)/income per limited partner unit, basic                        
Net (loss) per unit from continuing operations     n/a     $ (3.49 )   $ (3.49 )
Net income per unit from discontinued operations     n/a       0.36       0.36  
Net (loss) per common unit, basic     n/a     $ (3.13 )   $ (3.13 )
Net (loss)/income per limited partner unit, diluted                        
Net (loss) per unit from continuing operations     n/a     $ (3.49 )   $ (3.49 )
Net income per unit from discontinued operations     n/a       0.36       0.36  
Net (loss) per common unit, diluted     n/a     $ (3.13 )   $ (3.13 )

 

  25  
 

 

Nine months ended September 30, 2015   General
Partner
    Common
Unitholders
    Subordinated
Unitholders
 
    (in thousands, except per unit data)  
Numerator:                        
Interest in net (loss)/income:                        
Net (loss) from continuing operations   $ (538 )   $ (15,143 )   $ (11,243 )
Net income from discontinued operations     113       3,187       2,366  
Total interest in net income   $ (425 )   $ (11,956 )   $ (8,877 )
Impact of subordinated distribution suspension:                        
Net income/(loss) from continuing operations   $ 5     $ 139     $ (144 )
Net income from discontinued operations     -       -       -  
Interest in net income/(loss)   $ 5     $ 139     $ (144 )
Interest in net (loss)/income for EPU purposes:                        
Net (loss) from continuing operations   $ (534 )   $ (15,003 )   $ (11,387 )
Net income from discontinued operations     113       3,187       2,366  
Interest in net income   $ (421 )   $ (11,816 )   $ (9,021 )
Denominator:                        
Weighted average units used to compute basic EPU     n/a       1,669       1,240  
Effect of dilutive securities — LTIP awards:                        
Dilutive securities for net income from continuing operations and discontinued operations     n/a       -       -  
Weighted average units used to compute diluted EPU     n/a       1,669       1,240  
                         
Net income per limited partner unit, basic                        
Net income per unit from continuing operations     n/a     $ (8.99 )   $ (9.19 )
Net income per unit from discontinued operations     n/a       1.91       1.91  
Net income per common unit, basic     n/a     $ (7.08 )   $ (7.28 )
Net income per limited partner unit, diluted                        
Net income per unit from continuing operations     n/a     $ (8.99 )   $ (9.19 )
Net income per unit from discontinued operations     n/a       1.91       1.91  
Net income per common unit, diluted     n/a     $ (7.08 )   $ (7.28 )

 

Diluted EPU gives effect to all dilutive potential common units outstanding during the period using the treasury stock method. Diluted EPU excludes all dilutive potential units calculated under the treasury stock method if their effect is anti-dilutive. Since the Partnership incurred total net losses for the three and nine months ended September 30, 2016 and 2015, all potential dilutive units were excluded from the diluted EPU calculation for these periods.

 

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14. MAJOR CUSTOMERS

 

The Partnership had revenues or receivables from the following major customers that in each period equaled or exceeded 10% of revenues (Note: customers with “n/a” had revenue below the 10% threshold in any period where this is indicated):

 

                Nine months     Nine months  
    September 30 2016     December 31 2015     ended     ended  
    Receivable     Receivable     September 30, 2016     September 30, 2015  
    Balance     Balance     Sales     Sales  
    (in thousands)  
PPL Corporation   $ 1,646     $ 1,881     $ 31,333       24,457  
PacifiCorp Energy     668       1,969       14,418       16,831  
Big Rivers Electric Corporation     1,314       n/a       14,044       n/a  
NRG Energy, Inc. (fka GenOn Energy, Inc.)     n/a       n/a       n/a       20,356  

 

15. FAIR VALUE OF FINANCIAL INSTRUMENTS

 

The book values of cash and cash equivalents, accounts receivable and accounts payable are considered to be representative of their respective fair values because of the immediate short-term maturity of these financial instruments. The fair value of the Partnership’s amended and restated senior secured credit facility was based upon a Level 2 measurement utilizing a market approach, which incorporated market-based interest rate information with credit risks similar to the Partnership. The fair value of the Partnership’s amended and restated senior secured credit facility approximates the carrying value at September 30, 2016.

 

For the year ended December 31, 2015, the Partnership had nonrecurring fair value measurements related to its asset impairment actions. The nonrecurring fair value measurements for the asset impairments for the year ended December 31, 2015 were Level 3 measurements.

 

16. SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION

 

The unaudited condensed consolidated statements of cash flows for the nine months ended September 30, 2016 and 2015 excludes approximately $0.2 million and $0.1 million, respectively, of property additions, which are recorded in accounts payable.

 

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In January 2015, the Partnership dissolved the Rhino Eastern joint venture with Patriot. As part of the dissolution, the Partnership retained coal reserves, a prepaid advanced royalty balance and other assets and liabilities. In addition, the Partnership and Patriot agreed to a dissolution payment as part of the dissolution based upon a final working capital adjustment calculation, which is a liability of the Partnership. The Partnership recorded the dissolution of the joint venture by removing the investment in the Rhino Eastern unconsolidated subsidiary and recording the specific assets and liabilities retained in the dissolution. The dissolution of the Rhino Eastern joint venture completed in January 2015 had no impact on the Partnership’s unconsolidated statements of operations and comprehensive income for the three and six months ended September 30, 2015. The unaudited condensed consolidated statement of cash flows for the six months ended September 30, 2015 excludes the removal of the investment in the unconsolidated subsidiary and the recognition of the retained assets and liabilities, which are detailed in the table below.

 

    (in thousands)  
Coal properties (incl asset retirement costs)   $ 12,104  
Advance royalties, net of current portion     4,706  
Other non-current assets - acquired     229  
Other non-current assets - written off     (642 )
Accrued expenses and other     (2,012 )
Asset retirement obligations     (1,235 )
Net assets acquired     13,150  
Investment in unconsolidated affiliates-Rhino Eastern - written off   $ (13,150 )

 

17. SEGMENT INFORMATION

 

The Partnership produces and markets coal from surface and underground mines in Kentucky, West Virginia, Ohio and Utah. The Partnership sells primarily to electric utilities in the United States. For the three and nine months ended September 30, 2016, the Partnership had four reportable segments: Central Appalachia (comprised of both surface and underground mines located in Eastern Kentucky and Southern West Virginia), Northern Appalachia (comprised of both surface and underground mines located in Ohio), Rhino Western (comprised of an underground mine in Utah) and Illinois Basin (comprised of an underground mine in western Kentucky).

 

The Partnership’s Other category is comprised of the Partnership’s ancillary businesses and its remaining oil and natural gas activities. The Partnership has not provided disclosure of total expenditures by segment for long-lived assets, as the Partnership does not maintain discrete financial information concerning segment expenditures for long lived-assets, and accordingly such information is not provided to the Partnership’s chief operating decision maker. The information provided in the following tables represents the primary measures used to assess segment performance by the Partnership’s chief operating decision maker.

 

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Reportable segment results of operations for the three months ended September 30, 2016 are as follows (Note: “DD&A” refers to depreciation, depletion and amortization):

 

    Central     Northern     Rhino     Illinois           Total  
    Appalachia     Appalachia     Western     Basin     Other     Consolidated  
    (in thousands)  
Total revenues   $ 10,432     $ 10,974     $ 7,219     $ 14,576     $ 214     $ 43,415  
DD&A     1,642       777       1,292       2,638       140       6,489  
Interest expense     536       57       116       301       895       1,905  
Net income (loss) from continuing operations   $ (1,544 )   $ 3,166     $ (21 )   $ (2,800 )   $ (2,011 )   $ (3,210 )

 

Reportable segment results of operations for the nine months ended September 30, 2016 are as follows:

 

    Central     Northern     Rhino     Illinois           Total  
    Appalachia     Appalachia     Western     Basin     Other     Consolidated  
    (in thousands)  
Total revenues   $ 21,673     $ 31,707     $ 25,140     $ 45,456     $ 382     $ 124,358  
DD&A     4,951       2,541       4,107       6,319       423       18,341  
Interest expense     1,795       287       304       762       2,047       5,195  
Net income (loss) from continuing operations   $ (10,126 )   $ 9,006     $ (649 )   $ (4,237 )   $ (3,014 )   $ (9,020 )

 

Reportable segment results of operations for the three months ended September 30, 2015 are as follows:

 

    Central     Northern     Rhino     Illinois           Total  
    Appalachia     Appalachia     Western     Basin     Other     Consolidated  
    (in thousands)  
Total revenues   $ 14,975     $ 18,382     $ 8,698     $ 9,649     $ 192     $ 51,896  
DD&A     2,565       1,894       1,593       1,624       162       7,838  
Interest expense     602       145       97       175       366       1,385  
Net income (loss) from continuing operations   $ (8,436 )   $ 1,959     $ (526 )   $ (3,067 )   $ (312 )   $ (10,382 )

 

Reportable segment results of operations for the nine months ended September 30, 2015 are as follows:

 

    Central     Northern     Rhino     Illinois           Total  
    Appalachia     Appalachia     Western     Basin     Other     Consolidated  
    (in thousands)  
Total revenues   $ 49,727     $ 52,469     $ 27,251     $ 27,411     $ 1,476     $ 158,334  
DD&A     9,075       5,699       4,822       4,274       586       24,456  
Interest expense     1,446       381       228       429       1,169       3,653  
Net income (loss) from continuing operations   $ (16,359 )   $ 4,643     $ (3,055 )   $ (10,255 )   $ (1,898 )   $ (26,924 )

 

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18. SUBSEQUENT EVENTS

 

For the quarter ended September 30, 2016, the Partnership continued the suspension of the cash distribution for its common units, which was initially suspended for the quarter ended June 30, 2015. No distribution will be paid for common or subordinated units for the quarter ended September 30, 2016. The Partnership’s common units accrue arrearages every quarter when the distribution level is below the minimum level of $0.445 per unit, as outlined in the Partnership’s limited partnership agreement. The Partnership initially lowered its quarterly common unit distribution below the minimum level of $0.445 per unit with the quarter ended September 30, 2014. Thus, the Partnership’s distributions for each of the quarters ended September 30, 2014 through the quarter ended September 30, 2016 were below the minimum level and the current amount of accumulated arrearages as of September 30, 2016 related to the common unit distribution was approximately $149.7 million.

 

In October 2016, the Partnership contributed its limited partner interests in Mammoth to Mammoth Energy Services, Inc. (“Mammoth Inc.”) in exchange for 234,300 shares of common stock of Mammoth Inc. The common stock of Mammoth Inc. began trading on the NASDAQ Global Select Market in October 2016 under the ticker symbol TUSK and the Partnership sold 1,953 shares during the initial public offering of Mammoth Inc. and received proceeds of approximately $27,000. The Partnership’s remaining shares of Mammoth Inc. are subject to a 180 day lock-up period from the date of Mammoth Inc.’s initial public offering.

 

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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

Unless the context clearly indicates otherwise, references in this report to “we,” “our,” “us” or similar terms refer to Rhino Resource Partners LP and its subsidiaries. References to our “general partner” refer to Rhino GP LLC, the general partner of Rhino Resource Partners LP. The following discussion of the historical financial condition and results of operations should be read in conjunction with the historical audited consolidated financial statements and accompanying notes included in our Annual Report on Form 10-K for the year ended December 31, 2015 and the section “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included in such Annual Report on Form 10-K.

 

In addition, this discussion includes forward looking statements that are subject to risks and uncertainties that may result in actual results differing from statements we make. Please read the section “Cautionary Note Regarding Forward Looking Statements”. In addition, factors that could cause actual results to differ include those risks and uncertainties discussed in Part I, Item 1A. “Risk Factors” also included in our Annual Report on Form 10-K for the year ended December 31, 2015 and in Part II, Item 1A, “Risk Factors” in this Quarterly Report on Form 10-Q.

 

Overview

 

We are a diversified energy limited partnership formed in Delaware that is focused on coal and energy related assets and activities, including energy infrastructure investments. We produce, process and sell high quality coal of various steam and metallurgical grades. We market our steam coal primarily to electric utility companies as fuel for their steam powered generators. Customers for our metallurgical coal are primarily steel and coke producers who use our coal to produce coke, which is used as a raw material in the steel manufacturing process. In addition, we have expanded our business to include infrastructure support services, as well as other joint venture investments to provide for the transportation of hydrocarbons and drilling support services in the Utica Shale region. We have also invested in joint ventures that provide sand for fracking operations to drillers in the Utica Shale region and other oil and natural gas basins in the United States.

 

We have a geographically diverse asset base with coal reserves located in Central Appalachia, Northern Appalachia, the Illinois Basin and the Western Bituminous region. As of December 31, 2015, we controlled an estimated 363.6 million tons of proven and probable coal reserves, consisting of an estimated 310.1 million tons of steam coal and an estimated 53.5 million tons of metallurgical coal. In addition, as of December 31, 2015, we controlled an estimated 436.8 million tons of non-reserve coal deposits. In August 2016, we sold our Elk Horn coal leasing business, as described further below, which controlled, as of December 31, 2015, an estimated 100.1 million tons of proven and probable coal reserves and an estimated 197.5 million tons of non-reserve coal deposits.

 

We operate underground and surface mines located in Kentucky, Ohio, West Virginia and Utah. The number of mines that we operate may vary from time to time depending on a number of factors, including the demand for and price of coal, depletion of economically recoverable reserves and availability of experienced labor.

 

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Our principal business strategy is to safely, efficiently and profitably produce and sell both steam and metallurgical coal from our diverse asset base in order to resume, and, over time, increase our quarterly cash distributions. In addition, we intend to continue to expand and potentially diversify our operations through strategic acquisitions, including the acquisition of long-term, cash generating natural resource assets. We believe that such assets will allow us to grow our cash available for distribution and enhance stability of our cash flow.

 

For the three and nine months ended September 30, 2016, we generated revenues of approximately $43.4 million and $124.4 million, respectively, and we generated net losses of approximately $3.2 million and $9.0 million, respectively. For the three months ended September 30, 2016, we produced and sold approximately 0.8 million tons of coal, of which approximately 93% were sold pursuant to supply contracts. For the nine months ended September 30, 2016, we produced and sold approximately 2.4 million tons of coal, of which approximately 88% were sold pursuant to supply contracts.

 

Current Liquidity and Outlook

 

As of September 30, 2016, our available liquidity was $4.0 million, which consisted of the amount available under our amended and restated credit agreement dated July 29, 2011 (as amended and restated, the “Amended and Restated Credit Agreement”). On May 13, 2016, we entered into a fifth amendment of the Amended and Restated Credit Agreement (the “Fifth Amendment”), which extends the term of the Amended and Restated Credit Agreement to July 31, 2017 (see “—Liquidity and Capital Resources—Amended and Restated Credit Agreement” for further details of the Fifth Amendment).

 

Prior to our entry into the Fifth Amendment, we were unable to demonstrate that we had sufficient liquidity to operate our business over the subsequent twelve months and thus, substantial doubt was raised about our ability to continue as a going concern. Accordingly, our independent registered public accounting firm included an emphasis paragraph with respect to our ability to continue as a going concern in its report on our consolidated financial statements for the year ended December 31, 2015. The presence of the going concern emphasis paragraph in our auditors’ report may have an adverse impact on our relationship with third parties with whom we do business, including our customers, vendors, lenders and employees, making it difficult to raise additional debt or equity financing to the extent needed and conduct normal operations. As a result, our business, results of operations, financial condition and prospects could be materially adversely affected.

 

Given the continued weak demand and low prices for met and steam coal, we may not be able to continue to give the required representations or meet all of the covenants and restrictions included in our credit agreement. If we violate any of the covenants or restrictions in our Amended and Restated Credit Agreement, including the maximum leverage ratio and minimum EBITDA requirements, some or all of our indebtedness may become immediately due and payable, and our lenders’ commitment to make further loans to us may terminate. If we are unable to give a required representation or we violate a covenant or restriction, then we will need a waiver from our lenders in order to continue to borrow under our Amended and Restated Credit Agreement. Although we believe our lenders loans are well secured under the terms of our Amended and Restated Credit Agreement, there is no assurance that the lenders would agree to any such waiver. Failure to obtain financing or to generate sufficient cash flow from operations could cause us to further curtail our operations and reduce our spending and to alter our business plan. We may also be required to consider other options, such as selling additional assets or merger opportunities, and depending on the urgency of our liquidity constraints, we may be required to pursue such an option at an inopportune time. If we are not able to fund our liquidity requirements for the next twelve months, we may not be able to continue as a going concern. For more information about our liquidity and our credit facility, please read “—Liquidity and Capital Resources.”

 

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We continue to take measures, including the suspension of cash distributions on our common and subordinated units and cost and productivity improvements to enhance and preserve our liquidity so that we can fund our ongoing operations and necessary capital expenditures and meet our financial commitments and debt service obligations.

 

Recent Developments

 

Yorktown Transaction

 

On September 30, 2016, we entered into an equity exchange agreement (the “Agreement”) with Royal, Rhino Resource Partners Holdings, LLC (“Rhino Holdings”), an entity wholly-owned by certain investment partnerships managed by Yorktown Partners LLC (“Yorktown”) and our general partner. Investment partnerships managed by Yorktown own substantially all of the outstanding common stock of Armstrong Energy, Inc. (“Armstrong Energy”), a coal producing company with mines located in the Illinois Basin in western Kentucky. The Agreement contemplates that prior to closing, Yorktown will contribute its shares of common stock of Armstrong Energy to Rhino Holdings. At the closing, Rhino Holdings will contribute those shares to us in exchange for 10 million newly issued of our common units. The Agreement also contemplates that our general partner, currently owned and controlled by Royal, will issue a 50% ownership inherent in it to Rhino Holdings in connection with the issuance of our common units for the common stock of Armstrong Energy. Closing of the Agreement is conditioned upon (i) the current bondholders of Armstrong Energy agreeing to restructure their bonds and (ii) the refinancing of our Amended and Restated Credit Agreement with funds from an equity investment into us to be arranged by Rhino Holdings. The Agreement is also subject to other standard closing conditions and required approvals. The Agreement contains customary covenants, representations and warranties and indemnification obligations for breaches of, or the inaccuracy of representations or warranties or breaches of covenants contained in, the Agreement and associated agreements. We also agreed to enter into a registration rights agreement with Rhino Holdings that provides Rhino Holdings with the right to demand two shelf registration statements and registration statements on Form S-1, as well as piggyback registration rights. The Agreement may be terminated by the mutual written consent of us and Rhino Holdings or by either us or Rhino Holdings if: (i) the closing has not occurred on or before December 31, 2016 (unless the closing is as a result of such terminating party’s inability or failure to satisfy the conditions to the closing or if the non-terminating party has filed an action seeking specific performance); (ii) a law or order issued by a governmental authority prevents the closing from occurring (unless such law or order resulted from such party’s failure to perform its obligations under the Agreement); (iii) the board of directors of our general partner fails to approve the transactions or transaction documents contemplated by the Agreement; or (iv) the lenders of our credit facility fail to approve the transactions and transaction documents contemplated by the Agreement. The parties anticipate the Agreement will be consummated on or before December 31, 2016.

 

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Elk Horn Coal Leasing Disposition

 

In August 2016, we entered into an agreement to sell our Elk Horn coal leasing company to a third party for total cash consideration of $12.0 million. We received $10.5 million in cash consideration upon the closing of the Elk Horn transaction and the remaining $1.5 million of consideration will be paid in ten equal monthly installments of $150,000 on the 20th of each calendar month beginning on September 20, 2016. Elk Horn is a coal leasing company located in eastern Kentucky that has provided us with coal royalty revenues from coal properties owned by Elk Horn and leased to third-party operators. As of December 31, 2015, Elk Horn controlled approximately 100 million tons of proven and probable steam coal reserves. During the second quarter of 2016, we evaluated the Elk Horn assets for potential impairment based upon the initial purchase price offered by the buyer and the continued deterioration of the Central Appalachia steam coal markets that had adversely affected Elk Horn’s financial results. Our impairment analysis determined that a potential impairment existed since the carrying amount of the Elk Horn long-lived asset group exceeded the cash flows that would be generated from the purchase price offered from the buyer. Based on a market approach used to estimate the fair value of the Elk Horn long-lived asset group, we recorded total asset impairment charges of approximately $118.7 million related to Coal properties as of June 30, 2016. The disposal of the Elk Horn assets and liabilities in August 2016 resulted in an additional loss of $0.5 million. The total loss of $119.2 million from the Elk Horn disposal is recorded as discontinued operations along with the previous operating results of Elk Horn that have been reclassified for the three and nine months ended September 30, 2016 and 2015.

 

Sale of our General Partner by Wexford Capital LP

 

On January 21, 2016, a definitive agreement was completed between Royal Energy Resources, Inc. (“Royal”) and Wexford Capital LP (“Wexford”) where Royal acquired 6,769,112 of our issued and outstanding common units from Wexford. The definitive agreement also included the committed acquisition by Royal within 60 days from the date of the definitive agreement, or March 21, 2016, of all of the issued and outstanding membership interests of Rhino GP LLC, our general partner, as well as 9,455,252 of our issued and outstanding subordinated units from Wexford. Royal is a publicly traded company listed on the OTC market (OTCQB: ROYE) and is focused on the acquisition of coal, natural gas and renewable energy assets that are profitable at current distressed prices.

 

On March 17, 2016, Royal completed the acquisition of all of the issued and outstanding membership interests of our general partner as well as the 9,455,252 issued and outstanding subordinated units from Wexford. Royal obtained control of, and a majority limited partner interest, in us with the completion of this transaction. Immediately subsequent to the consummation of the transaction, the following members of the board of directors of our general partner tendered their resignations effective immediately: Mark Zand, Philip Braunstein, Ken Rubin, Arthur Amron, Douglas Lambert and Mark Plaumann. As the owner of our general partner, Royal has the right to appoint the members of the board of directors of our general partner and so appointed new directors to fill the vacancies resulting from the resignations, which included the following: William Tuorto, Ronald Phillips, Michael Thompson, Douglas Holsted, Brian Hughs and David Hanig.

 

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Private Placement of Common Units to Royal

 

On March 21, 2016, we and Royal entered into a securities purchase agreement (the “Securities Purchase Agreement”) pursuant to which we issued 60,000,000 of our common units to Royal in a private placement at $0.15 per common unit for an aggregate purchase price of $9.0 million. Royal paid us $2.0 million in cash and delivered a promissory note payable to us in the amount of $7.0 million. The promissory note is payable in three installments: (i) $3.0 million on July 31, 2016; (ii) $2.0 million on or before September 30, 2016 and (iii) $2.0 million on or before December 31, 2016. In the event the disinterested members of the board of directors of our general partner determine that we do not need the capital that would be provided by either or both installments set forth in (ii) and (iii) above, in each case, we have the option to rescind Royal’s purchase of 13,333,333 common units and the applicable installment will not be payable (each, a “Rescission Right”). If we fail to exercise a Rescission Right, in each case, we have the option to repurchase 13,333,333 of our common units at $0.30 per common unit from Royal (each, a “Repurchase Option”). The Repurchase Options terminate on December 31, 2017. Royal’s obligation to pay any installment of the promissory note is subject to certain conditions, including that we have entered into an agreement to extend the amended and restated credit agreement to a date no sooner than December 31, 2017. In the event such conditions are not satisfied as of the date each installment is due, Royal has the right to cancel the remaining unpaid balance of the promissory note in exchange for the surrender of such number of common units equal to the principal balance of the promissory note divided by $0.15. On May 13, 2016 and September 30, 2016, Royal paid us $3.0 million and $2.0 million, respectively, of the promissory note installments that were due July 31, 2016 and September 30, 2016, respectively. The payments were made in relation to the fifth amendment of the amended and restated credit agreement completed on May 13, 2016, which is discussed further below.

 

Fourth, Fifth and Sixth Amendments to Amended and Restated Credit Agreement

 

On March 17, 2016, our operating company, as borrower, and we and certain of our subsidiaries, as guarantors, entered into an amendment (the “Fourth Amendment”) of our Amended and Restated Credit Agreement. The Fourth Amendment amended the definition of change of control in our Amended and Restated Credit Agreement to permit Royal to purchase the membership interests of our general partner.

 

On May 13, 2016, we entered into the Fifth Amendment of the Amended and Restated Credit Agreement, which extended the term to July 31, 2017.

 

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In July 2016, we entered into a sixth amendment (the “Sixth Amendment”) of our amended and restated senior secured credit facility that permitted the sale of Elk Horn that was discussed earlier. (see “—Liquidity and Capital Resources—Amended and Restated Credit Agreement” for further details of the Fourth, Fifth and Sixth Amendments).

 

Suspension and Delisting of Common Units from the New York Stock Exchange (“NYSE”)

 

As previously disclosed, on December 17, 2015, the NYSE notified us that that the NYSE had determined to commence proceedings to delist our common units from the NYSE as a result of our failure to comply with the continued listing standard set forth in Section 802.01B of the NYSE Listed Company Manual to maintain an average global market capitalization over a consecutive 30 trading-day period of at least $15 million for our common units. The NYSE also suspended the trading of our common units at the close of trading on December 17, 2015.

 

On January 4, 2016, we filed an appeal with the NYSE to review the suspension and delisting determination of our common units. The NYSE held a hearing regarding our appeal on April 20, 2016 and affirmed its prior decision to delist our common units.

 

On April 27, 2016, the NYSE filed with the SEC a notification of removal from listing and registration on Form 25 to delist our common units and terminate the registration of our common units under Section 12(b) of the Securities Exchange Act of 1934. The delisting became effective on May 9, 2016. The Partnership’s common units trade on the OTCQB Marketplace under the ticker symbol “RHNO.”

 

We are exploring the possibility of listing our common units on the NASDAQ Stock Market (“NASDAQ”), pending our capability to meet the NASDAQ initial listing standards.

 

Reverse Unit Split

 

On April 18, 2016, we completed a 1-for-10 reverse split on our common units and subordinated units. Pursuant to the reverse split, common unitholders received one common unit for every 10 common units owned on April 18, 2016 and subordinated unitholders received one subordinated unit for every 10 subordinated units owned on April 18, 2016. Any fractional units resulting from the reverse unit split were rounded to the nearest whole unit. The reverse unit split was intended to increase the market price per unit of our common units in order to comply with the NYSE’s continued listing standards.

 

Distribution Suspension

 

Beginning with the quarter ended June 30, 2015 and continuing through the current quarter ended September 30, 2016, we have suspended the cash distribution for our common units. For the quarters ended September 30, 2014 and December 31, 2014, we announced cash distributions of $0.05 per common unit, or $0.20 per unit on an annualized basis, and for the quarter ended March 31, 2015, we announced cash distributions of $0.02 per common unit, or $0.08 per unit on an annualized basis. Each of these quarters’ distribution levels were lower than the historical quarters’ distribution amounts of $0.445 per common unit, or $1.78 per unit on an annualized basis. The distribution suspension and prior reductions were the result of prolonged weakness in the coal markets, which has continued to adversely affect our cash flow.

 

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Our common units accrue arrearages every quarter when the distribution level is below the minimum level of $0.445 per unit, as outlined in our limited partnership agreement. Since our distributions for the quarters ended September 30, 2014, December 31, 2014 and March 31, 2015 were below the minimum level and we suspended the distribution for the quarters ended June 30, 2015 through September 30, 2016, we have accumulated arrearages at September 30, 2016 related to the common unit distribution of approximately $149.7 million.

 

Deane Mining Complex

 

On October 30, 2015, we executed a binding letter of intent with a third party for the purchase of our Deane mining complex. The sale of the Deane mining complex was completed on December 30, 2015. Our Deane mining complex is located in eastern Kentucky and includes one underground mine. The infrastructure at the Deane mining complex consists of a preparation plant and a unit train loadout facility. We evaluated the appropriate held for sale accounting criteria to determine if the Deane mining complex should be classified as held for sale as of September 30, 2015. Based on this evaluation, we determined the Deane mining complex met the held for sale criteria at September 30, 2015 and, accordingly, the Deane mining complex asset group was written down to its estimated fair value of $2.0 million. Due to the determination that the Deane mining complex met the held for sale criteria, we recorded an impairment charge of approximately $2.3 million for the three and nine months ended September 30, 2015. The sale of the Deane complex in December 2015 transferred the underground mine, related equipment, the preparation plant and loadout facility in exchange for $2.0 million in the form of a promissory note receivable from the third party. The note accrued interest with initial interest payments due beginning June 2016 and the final principal due December 31, 2017. We had not received any of the scheduled interest payments from the third party as of September 30, 2016 and ongoing discussions with the third party indicated it was more likely than not that we would not receive the balance of the note receivable. While we continue discussions with the third party for collection of the note receivable, we recorded a $2.0 million reserve against the note receivable as of September 30, 2016.

 

Cana Woodford

 

We had an oil and natural gas investment of approximately 1,900 net mineral acres in the Cana Woodford region of western Oklahoma. During the second quarter of 2015, we received unsolicited offers from third parties to purchase this oil and natural gas investment. We evaluated these offers in contemplation of a potential sale of these mineral rights. Due to the receipt of these offers and our potential sale of these mineral rights, we evaluated the appropriate held for sale accounting criteria to determine if the Cana Woodford mineral rights should be classified as held for sale as of June 30, 2015. Based on this evaluation, we determined these mineral rights met the held for sale criteria at June 30, 2015 and, accordingly, these mineral rights were written down to their estimated fair value. Due to the determination that the mineral rights met the held for sale criteria, we recorded an impairment charge of approximately $2.2 million for the Cana Woodford mineral rights during the nine months ended September 30, 2015.

 

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Factors That Impact Our Business

 

Our results of operations in the near term could be impacted by a number of factors, including (1) our ability to fund our ongoing operations and necessary capital expenditures, (2) the availability of transportation for coal shipments, (3) poor mining conditions resulting from geological conditions or the effects of prior mining, (4) equipment problems at mining locations, (5) adverse weather conditions and natural disasters or (6) the availability and costs of key supplies and commodities such as steel, diesel fuel and explosives.

 

On a long-term basis, our results of operations could be impacted by, among other factors, (1) our ability to fund our ongoing operations and necessary capital expenditures, (2) changes in governmental regulation, (3) the availability and prices of competing electricity-generation fuels, (4) the world-wide demand for steel, which utilizes metallurgical coal and can affect the demand and prices of metallurgical coal that we produce, (5) our ability to secure or acquire high-quality coal reserves and (6) our ability to find buyers for coal under favorable supply contracts.

 

We have historically sold a majority of our coal through supply contracts and anticipate that we will continue to do so. As of September 30, 2016, we had commitments under sales contracts to deliver annually scheduled base quantities of coal as follows:

 

Year     Tons (in thousands)     Number of customers  
2016 Q4       797       14  
2017       2,910       10  
2018       701       3  

 

Some of the contracts have sales price adjustment provisions, subject to certain limitations and adjustments, based on a variety of factors and indices.

 

Results of Operations

 

Segment Information

 

As of September 30, 2016, we have four reportable business segments: Central Appalachia, Northern Appalachia, Rhino Western and Illinois Basin. Additionally, we have an Other category that includes our ancillary businesses and our remaining oil and natural gas activities. Our Central Appalachia segment consists of two mining complexes: Tug River and Rob Fork, which, as of September 30, 2016, together included one underground mine, three surface mines and three preparation plants and loadout facilities in eastern Kentucky and southern West Virginia. We idled a majority of operations beginning in the third quarter of 2015 to reduce excess coal inventory. We have resumed mining operations at all of our Central Appalachia operations during the three months ended September 30, 2016. Our Northern Appalachia segment consists of the Hopedale mining complex, the Sands Hill mining complex, and the Leesville field. The Hopedale mining complex, located in northern Ohio, included one underground mine and one preparation plant and loadout facility as of September 30, 2016. Our Sands Hill mining complex, located in southern Ohio, included two surface mines, a preparation plant and a river terminal as of September 30, 2016. Our Rhino Western segment includes our underground mine in the Western Bituminous region at our Castle Valley mining complex in Utah. Our Illinois Basin segment includes one underground mine, preparation plant and river loadout facility at our Pennyrile mining complex located in western Kentucky, as well as our Taylorville field reserves located in central Illinois.

 

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Evaluating Our Results of Operations

 

Our management uses a variety of financial measurements to analyze our performance, including (1) Adjusted EBITDA, (2) coal revenues per ton and (3) cost of operations per ton.

 

Adjusted EBITDA. The discussion of our results of operations below includes references to, and analysis of, our segments’ Adjusted EBITDA results. Adjusted EBITDA represents net income before deducting interest expense, income taxes and depreciation, depletion and amortization, while also excluding certain non-cash and/or non-recurring items. Adjusted EBITDA is used by management primarily as a measure of our segments’ operating performance. Adjusted EBITDA should not be considered an alternative to net income, income from operations, cash flows from operating activities or any other measure of financial performance or liquidity presented in accordance with GAAP. Because not all companies calculate Adjusted EBITDA identically, our calculation may not be comparable to similarly titled measures of other companies. Please read “—Reconciliation of Adjusted EBITDA to Net Income by Segment” for reconciliations of Adjusted EBITDA to net income by segment for each of the periods indicated.

 

Coal Revenues Per Ton . Coal revenues per ton represents coal revenues divided by tons of coal sold. Coal revenues per ton is a key indicator of our effectiveness in obtaining favorable prices for our product.

 

Cost of Operations Per Ton . Cost of operations per ton sold represents the cost of operations (exclusive of depreciation, depletion and amortization) divided by tons of coal sold. Management uses this measurement as a key indicator of the efficiency of operations.

 

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Summary

 

The following table sets forth certain information regarding our revenues, operating expenses, other income and expenses, and operational data for the three and nine months ended September 30, 2016 and 2015:

 

    Three months ended
September 30,
    Nine months ended
September 30,
 
    2016     2015     2016     2015  
    (in millions)  
Statement of Operations Data:                                
Total revenues   $ 43.4     $ 51.9     $ 124.4     $ 158.3  
Costs and expenses:                                
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)     35.3       47.7       98.1       139.7  
Freight and handling costs     0.4       0.7       1.5       1.9  
Depreciation, depletion and amortization     6.5       7.8       18.3       24.5  
Selling, general and administrative (exclusive of depreciation, depletion and amortization shown separately above)     4.3       2.9       12.3       11.8  
Loss on asset impairments     -       2.3       -       4.5  
(Gain) on sale/disposal of assets-net     (0.1 )     (0.4 )     (0.4 )     (0.5 )
(Loss) from operations     (3.0 )     (9.1 )     (5.4 )     (23.6 )
Interest and other (expense)/income:                                
Interest expense     (1.9 )     (1.4 )     (5.2 )     (3.6 )
Gain on extinguishment of debt     1.7       -       1.7       -  
Equity in net (loss)/income of unconsolidated affiliates     -       0.1       (0.1 )     0.3  
Total interest and other (expense)     (0.2 )     (1.3 )     (3.6 )     (3.3 )
Net (loss) from continuing operations     (3.2 )     (10.4 )     (9.0 )     (26.9 )
Net income (loss) from discontinued operations     (0.6 )     1.1       (117.9 )     5.6  
Net (loss)   $ (3.8 )   $ (9.3 )   $ (126.9 )   $ (21.3 )
                                 
Other Financial Data                                
Adjusted EBITDA from continuing operations   $ 5.5     $ 1.2     $ 14.9     $ 5.7  
EBITDA from discontinued operations     0.1       1.6       1.8       7.4  
Total Adjusted EBITDA   $ 5.6     $ 2.8     $ 16.7     $ 13.1  

 

Three Months Ended September 30, 2016 Compared to Three Months Ended September 30, 2015

 

Summary. For the three months ended September 30, 2016, our total revenues decreased to $43.4 million from $51.9 million for the three months ended September 30, 2015, which is a 16.3% decrease. We sold approximately 0.8 million tons of coal for the three months ended September 30, 2016, which is a 12.9% decrease compared to the tons of coal sold for the three months ended September 30, 2015. The decrease in revenue and tons sold was primarily the result of continued weak demand and low prices in the met and steam coal markets, particularly in Central Appalachia, partially offset by increased sales from our Pennyrile operation in the Illinois Basin. We believe the weak demand in the steam coal markets was primarily driven by a continued over-supply of low-priced natural gas, which electric utilities utilize as a source of electricity generation in lieu of steam coal. We believe the weak demand in the met coal markets was primarily driven by a decrease in worldwide steel production due to ongoing global economic weakness, particularly in China. While coal prices have increased recently, particularly met coal prices, we do not anticipate the recent price increase will benefit our financial results until 2017.

 

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Net loss from continuing operations improved for the three months ended September 30, 2016 compared to the three months ended September 30, 2015. We generated a net loss from continuing operations of approximately $3.2 million for the three months ended September 30, 2016 compared to a net loss from continuing operations of approximately $10.4 million for the three months ended September 30, 2015. For the three months ended September 30, 2016, our total net loss from continuing operations was impacted by a charge of $2.0 million related to the reserve taken against the note receivable from our Deane mining complex sale discussed earlier. For the three months ended September 30, 2015, our total net loss from continuing operations was impacted by an asset impairment charge of $2.3 million related to our Deane mining complex discussed earlier.

 

Adjusted EBITDA from continuing operations increased to $5.5 million for the three months ended September 30, 2016 from $1.2 million for the three months ended September 30, 2015. Adjusted EBITDA from continuing operations increased period to period primarily due to the lower net loss generated year-to-year.

 

Including the loss from discontinued operations of approximately $0.6 million, our total net loss and Adjusted EBITDA for the three months ended September 30, 2016 were $3.8 million and $5.6 million, respectively. Including the income from discontinued operations of approximately $1.1 million, our total net loss and Adjusted EBITDA for the three months ended September 30, 2015 were $9.3 million and $2.8 million, respectively.

 

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Tons Sold. The following table presents tons of coal sold by reportable segment for the three months ended September 30, 2016 and 2015:

 

    Three months     Three months     Increase/        
    Ended     ended     (Decrease)        
Segment   September 30, 2016     September 30, 2015     Tons     % *  
    (in thousands, except %)  
Central Appalachia     179.7       231.9       (52.2 )     (22.5 %)
Northern Appalachia     149.1       264.2       (115.1 )     (43.6 %)
Rhino Western     185.1       234.3       (49.2 )     (21.0 %)
Illinois Basin     304.5       209.4       95.1       45.4 %
Total *     818.4       939.8       (121.4 )     (12.9 %)

 

* Calculated percentages and the rounded totals presented are based upon on actual whole ton amounts and not the rounded amounts presented in this table.

 

We sold approximately 0.8 million tons of coal for the three months ended September 30 , 2016, which was a 12.9% decrease compared to the three months ended September 30 , 2015. The decrease in tons sold year-to-year was primarily due to lower sales from our Central Appalachia segment due to weak demand for met and steam coal from this region. Tons of coal sold in our Central Appalachia segment decreased by approximately 22.5% to approximately 0.2 million tons for the three months ended September 30 , 2016 compared to the three months ended September 30 , 2015 , primarily due to a decrease in steam coal tons sold in the three months ended September 30 , 2016 compared to 2015 due to ongoing weak market demand for coal from this region. For our Northern Appalachia segment, tons of coal sold decreased by approximately 43.6% for the three months ended September 30 , 2016 compared to the three months ended September 30 , 2015 as we experienced a decrease in tons sold from our Hopedale complex due to weak demand for coal from this region . Coal sales from our Rhino Western segment decreased by approximately 21.0% for the three months ended September 30 , 2016 compared to the same period in 2015 due to decreased customer demand from our Castle Valley operation. For our Illinois Basin segment, tons of coal sold increased by approximately 45.4% for the three months ended September 30 , 2016 compared to the three months ended September 30 , 2015 as we increased production and sales year-to-year from our Pennyrile mine in western Kentucky to meet our contracted sales commitments.

 

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Revenues. The following table presents revenues and coal revenues per ton by reportable segment for the three months ended September 30 , 2016 and 2015:

 

    Three months     Three months              
    ended     ended     Increase/(Decrease)        
Segment   September 30, 2016     September 30, 2015     $     %*  
    (in millions, except per ton data and %)  
Central Appalachia                                
Coal revenues   $ 10.4     $ 11.5     $ (1.1 )     (9.5 %)
Freight and handling revenues     -       -       -       n/a  
Other revenues     -       3.5       (3.5 )     (99.3 %)
Total revenues   $ 10.4     $ 15.0     $ (4.6 )     (30.3 %)
Coal revenues per ton*   $ 57.91     $ 49.59     $ 8.32       16.8 %
Northern Appalachia                                
Coal revenues   $ 8.8     $ 15.7     $ (6.9 )     (43.9 %)
Freight and handling revenues     0.4       0.7       (0.3 )     (42.4 %)
Other revenues     1.8       2.0       (0.2 )     (11.6 %)
Total revenues   $ 11.0     $ 18.4     $ (7.4 )     (40.3 %)
Coal revenues per ton*   $ 58.75     $ 59.13     $ (0.38 )     (0.7 %)
Rhino Western                                
Coal revenues   $ 7.2     $ 8.7     $ (1.5 )     (17.0 %)
Freight and handling revenues     -       -       -       n/a  
Other revenues     -       -       -       n/a  
Total revenues   $ 7.2     $ 8.7     $ (1.5 )     (17.0 %)
Coal revenues per ton*   $ 39.00     $ 37.13     $ 1.87       5.0 %
Illinois Basin                                
Coal revenues   $ 14.6     $ 9.6     $ 5.0       51.4 %
Freight and handling revenues     -       -       -       n/a  
Other revenues     -       -       -       n/a  
Total revenues   $ 14.6     $ 9.6     $ 5.0       51.1 %
Coal revenues per ton*   $ 47.97     $ 46.07     $ 1.90       4.1 %
Other**                                
Coal revenues     n/a       n/a       n/a       n/a  
Freight and handling revenues     n/a       n/a       n/a       n/a  
Other revenues     0.2       0.2       -       n/a  
Total revenues   $ 0.2     $ 0.2     $ -       n/a  
Coal revenues per ton*     n/a       n/a       n/a       n/a  
Total                                
Coal revenues   $ 41.0     $ 45.5     $ (4.5 )     (9.8 %)
Freight and handling revenues     0.4       0.7       (0.3 )     (42.4 %)
Other revenues     2.0       5.7       (3.7 )     (64.9 %)
Total revenues   $ 43.4     $ 51.9     $ (8.5 )     (16.3 %)
Coal revenues per ton*   $ 50.09     $ 48.38     $ 1.71       3.5 %

 

* Percentages and per ton amounts are calculated based on actual amounts and not the rounded amounts presented in this table.
   
** The Other category includes results for our ancillary businesses. The activities performed by these ancillary businesses also do not directly relate to coal production. As a result, coal revenues and coal revenues per ton are not presented for the Other category.

 

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Our coal revenues for the three months ended September 30 , 2016 decreased by approximately $4.5 million, or 9.8%, to approximately $41.0 million from approximately $45.5 million for the three months ended September 30 , 2015. The decrease in coal revenues was primarily due to fewer steam coal tons sold in Northern Appalachia, partially offset by increased sales from our Pennyrile mine in the Illinois Basin . Coal revenues per ton was $50.09 for the three months ended September 30 , 2016, an increase of $1.71, or 3.50%, from $48.38 per ton for the three months ended September 30 , 2015. This increase in coal revenues per ton was primarily the result of a higher mix of higher priced met coal tons sold in Central Appalachia compared to the prior period.

 

For our Central Appalachia segment, coal revenues decreased by approximately $1.1 million, or 9.5%, to approximately $10.4 million for the three months ended September 30 , 2016 from approximately $11.5 million for the three months ended September 30 , 2015. This decrease was primarily due to fewer steam coal tons sold, which reflects the weak coal market conditions for coal from this region. Coal revenues per ton for our Central Appalachia segment increased by $8.32, or 16.8%, to $57.91 per ton for the three months ended September 30 , 2016 as compared to $49.59 for the three months ended September 30 , 2015, primarily due to a higher mix of higher priced met coal tons sold as steam coal tons decreased year-to-year due to ongoing weak demand for steam coal from this region.

 

For our Northern Appalachia segment, coal revenues were approximately $8.8 million for the three months ended September 30 , 2016, a decrease of approximately $6.9 million, or 43.9%, from approximately $15.7 million for the three months ended September 30 , 2015. This decrease was primarily due to a decrease in tons sold from our Hopedale complex in Northern Appalachia due to weak demand for coal from the Northern Appalachia region during the three months ended September 30 , 2016. Coal revenues per ton for our Northern Appalachia segment was primarily flat at $58.75 per ton for the three months ended September 30 , 2016 as compared to $59.13 per ton for the three months ended September 30 , 2015.

 

For our Rhino Western segment, coal revenues decreased by approximately $1.5 million, or 17.0%, to approximately $7.2 million for the three months ended September 30 , 2016 from approximately $8.7 million for the three months ended September 30 , 2015, primarily due to a decrease in tons sold due to decreased customer demand at our Castle Valley operation. Coal revenues per ton for our Rhino Western segment was $39.00 for the three months ended September 30 , 2016, an increase of $1.87, or 5.0%, from $37.13 for the three months ended September 30 , 2015. The increase in coal revenues per ton was due to an increase in the contracted sales prices for steam coal sales from our Castle Valley mine for the three months ended September 30 , 2016 compared to the same period in 2015.

 

For our Illinois Basin segment, coal revenues of approximately $14.6 million for the three months ended September 30 , 2016 increased by approximately $5.0 million, or 51.4%, compared to $9.6 million for the three months ended September 30 , 2015. The increase was due to increased sales from our Pennyrile mine in western Kentucky to fulfill our customer contracts. Coal revenues per ton for our Illinois Basin segment was $47.97 for the three months ended September 30 , 2016, an increase of $1.90, or 4.1%, from $46.07 for the three months ended September 30 , 2015. The increase in coal revenues per ton was due to higher contracted prices for tons sold.

 

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Other revenues for our Other category was relatively flat at approximately $0.2 million for the three months ended September 30 , 2016.

 

Central Appalachia Overview of Results by Product. Additional information for the Central Appalachia segment detailing the types of coal produced and sold, premium high-vol met coal and steam coal, is presented below. Note that our Northern Appalachia, Rhino Western and Illinois Basin segments currently produce and sell only steam coal.

 

(In thousands, except per ton data and %)   Three months ended
September 30, 2016
    Three months ended
September 30, 2015
    Increase (Decrease) %*  
Met coal tons sold     88.4       32.2       174.7 %
Steam coal tons sold     91.3       199.7       (54.3 %)
Total tons sold     179.7       231.9       (22.5 %)
                         
Met coal revenue   $ 5,654     $ 2,634       114.6 %
Steam coal revenue   $ 4,753     $ 8,865       (46.4 %)
Total coal revenue   $ 10,407     $ 11,499       (9.5 %)
                         
Met coal revenues per ton   $ 63.95     $ 81.85       (21.9 %)
Steam coal revenues per ton   $ 52.07     $ 44.39       17.3 %
Total coal revenues per ton   $ 57.91     $ 49.59       16.8 %
                         
Met coal tons produced     108.0       26.5       307.7 %
Steam coal tons produced     104.0       67.9       52.6 %
Total tons produced     212.0       94.4       124.2 %

 

* Percentage amounts are calculated based on actual amounts and not the rounded amounts presented in this table.

 

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Costs and Expenses. The following table presents costs and expenses (including the cost of purchased coal) and cost of operations per ton by reportable segment for the three months ended September 30 , 2016 and 2015:

 

    Three months     Three months     Increase/        
    ended     ended     (Decrease)        
Segment   September 30, 2016     September 30, 2015     $     %*  
    (in millions, except per ton data and %)  
Central Appalachia                                
                                 
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)   $ 6.9     $ 14.7     $ (7.8 )     (52.8 %)
Freight and handling costs     -       -       -       n/a  
Depreciation, depletion and amortization     1.6       2.6       (1.0 )     (36.0 %)
Selling, general and administrative     2.0       2.6       (0.6 )     (23.7 %)
Cost of operations per ton*   $ 38.51     $ 63.19     $ (24.68 )     (39.1 %)
                                 
Northern Appalachia                                
                                 
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)   $ 7.8     $ 13.1     $ (5.3 )     (40.8 %)
Freight and handling costs     0.4       0.7       (0.3 )     (45.7 %)
Depreciation, depletion and amortization     0.8       1.9       (1.1 )     (59.0 %)
Selling, general and administrative     -       0.1       (0.1 )     (56.8 %)
Cost of operations per ton*   $ 52.13     $ 49.68     $ 2.45       4.9 %
                                 
Rhino Western                                
                                 
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)   $ 5.3     $ 7.2     $ (1.9 )     (26.3 %)
Freight and handling costs     -       -       -       n/a  
Depreciation, depletion and amortization     1.3       1.6       (0.3 )     (18.9 %)
Selling, general and administrative     -       -       -       n/a  
Cost of operations per ton*   $ 28.82     $ 30.91     $ (2.09 )     (6.8 %)
                                 
Illinois Basin                                
                                 
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)   $ 13.4     $ 10.5     $ 2.9       28.3 %
Freight and handling costs     -       -       -       n/a  
Depreciation, depletion and amortization     2.6       1.6       1.0       62.4 %
Selling, general and administrative     0.1       -       0.1       116.1 %
Cost of operations per ton*   $ 43.99     $ 49.86     $ (5.87 )     (11.8 %)
                                 
Other                                
                                 
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)   $ 1.8     $ 2.2     $ (0.4 )     (17.6 %)
Freight and handling costs     -       -       -       n/a  
Depreciation, depletion and amortization     0.2       0.1       0.1       (13.6 %)
Selling, general and administrative     2.2       0.2       2.0       1046.0 %
Cost of operations per ton**     n/a       n/a       n/a       n/a  
                                 
Total                                
                                 
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)   $ 35.2     $ 47.7     $ (12.5 )     (26.1 %)
Freight and handling costs     0.4       0.7       (0.3 )     (45.7 %)
Depreciation, depletion and amortization     6.5       7.8       (1.3 )     (17.2 %)
Selling, general and administrative     4.3       2.9       1.4       50.2 %
Cost of operations per ton*   $ 43.07     $ 50.73     $ (7.66 )     (15.1 %)

 

* Percentages and per ton amounts are calculated based on actual amounts and not the rounded amounts presented in this table.

 

** Cost of operations presented for our Other category includes costs incurred by our ancillary businesses and our oil and natural gas investments. The activities performed by these ancillary businesses do not directly relate to coal production. As a result, per ton measurements are not presented for this category.

 

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Cost of Operations. Total cost of operations was $35.2 million for the three months ended September 30 , 2016 as compared to $47.7 million for the three months ended September 30 , 2015. Our cost of operations per ton was $43.07 for the three months ended September 30 , 2016, a decrease of $7.66, or 15.1%, from the three months ended September 30 , 2015. Total cost of operations decreased primarily due to lower costs in Central Appalachia and Northern Appalachia, partially offset by increased costs from higher production at our Pennyrile mine in the Illinois Basin. The decrease in the cost of operations on a per ton basis was primarily due to a decrease from our Central Appalachia segment as we idled a majority of operations beginning in the third quarter of 2015 to reduce excess coal inventory, which resulted in lower production and higher cost of operations per ton during this 2015 period.

 

Our cost of operations for the Central Appalachia segment decreased by $7.8 million, or 52.8%, to $6.9 million for the three months ended September 30 , 2016 from $14.7 million for the three months ended September 30 , 2015. Total cost of operations decreased year-to-year since as we optimized production during the three months ended September 30 , 2016 compared to the prior period. Our cost of operations per ton of $38.51 for the three months ended September 30 , 2016 was a reduction of 39.1% compared to $63.19 per ton for the three months ended September 30 , 2015, as we idled a majority of operations beginning in the third quarter of 2015 to reduce excess coal inventory, which resulted in lower production and higher cost of operations per ton during this 2015 period.

 

In our Northern Appalachia segment, our cost of operations decreased by $5.3 million, or 40.8%, to $7.8 million for the three months ended September 30 , 2016 from $13.1 million for the three months ended September 30 , 2015. The decrease in cost of operations was due to reduced production in this region in response to weak market demand. Our cost of operations per ton was $52.13 for the three months ended September 30 , 2016, an increase of $2.45, or 4.9%, compared to $49.68 for the three months ended September 30 , 2015. Cost of operations per ton increased slightly primarily due to fixed operating costs being allocated to lower production and sales tons for the three months ended September 30 , 2016 compared to the prior period.

 

Our cost of operations for the Rhino Western segment decreased by $1.9 million, or 26.3%, to $5.3 million for the three months ended September 30 , 2016 from $7.2 million for the three months ended September 30 , 2015. Total cost of operations decreased for the three months ended September 30, 2016 compared to the same period in 2015 due to decreased tons produced and sold from our Castle Valley operation due to weak customer demand. Our cost of operations per ton was $28.82 for the three months ended September 30 , 2016, a decrease of $2.09, or 6.8%, compared to $30.91 for the three months ended September 30 , 2015. Cost of operations per ton decreased for the three months ended September 30, 2016 compared to the same period in 2015 due to lower maintenance and other costs incurred at our Castle Valley operation.

 

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Cost of operations in our Illinois Basin segment was $13.4 million while cost of operations per ton was $43.99 for the three months ended September 30 , 2016, both of which related to our Pennyrile mining complex in western Kentucky. For the three months ended September 30 , 2015, cost of operations in our Illinois Basin segment was $10.5 million and cost of operations per ton was $49.86. The increase in cost of operations was primarily the result of increased production year-to-year at the Pennyrile complex, while cost of operations per ton decreased as we continued to optimize the cost structure at this mining complex.

 

Cost of operations in our Other category decreased to $1.8 million for the three months ended September 30 , 2016 compared to $2.2 million for the three months ended September 30, 2015. Cost of operations decreased primarily due to decreased activity in our ancillary businesses.

 

Freight and Handling. Total freight and handling cost decreased to $0.4 million for the three months ended September 30 , 2016 as compared to $0.7 million for the three months ended September 30 , 2015 as we sold fewer tons from our Sands Hill mining complex that requires trucking to customers.

 

Depreciation, Depletion and Amortization. Total depreciation, depletion and amortization (“DD&A”) expense for the three months ended September 30 , 2016 was $6.5 million as compared to $7.8 million for the three months ended September 30 , 2015.

 

For the three months ended September 30 , 2016, our depreciation cost decreased to $5.6 million compared to $7.2 million for the three months ended September 30 , 2015. This decrease primarily resulted from lower depreciation costs in our Central Appalachia segment in the current quarter compared to the prior year as we disposed of excess equipment in this region.

 

For the three months ended September 30 , 2016, our depletion cost was relatively flat at $0.4 million compared to $0.3 million for the three months ended September 30 , 2015.

 

For the three months ended September 30 , 2016, our amortization cost was relatively flat at $0.5 million compared to $0.3 million for the three months ended September 30 , 2015.

 

Selling, General and Administrative. Selling, general and administrative (“SG&A”) expense for the three months ended September 30 , 2016 increased to $4.3 million as compared to $2.9 million for the three months ended September 30 , 2015. This increase was primarily attributable to a $2.0 million charge incurred during the three months ended September 30 , 2016 for a reserve against a note receivable that was recorded in 2015 related to the sale of the Deane mining complex discussed earlier.

 

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Interest Expense . Interest expense for the three months ended September 30 , 2016 increased to $1.9 million as compared to $1.4 million for the three months ended September 30 , 2015. This increase was primarily due to higher interest rates on our senior secured credit facility.

 

Net Income (Loss) from Continuing Operations. The following table presents net income (loss) from continuing operations by reportable segment for the three months ended September 30 , 2016 and 2015:

 

    Three months ended     Three months ended     Increase  
Segment   September 30, 2016     September 30, 2015     (Decrease)  
        (in millions)        
Central Appalachia   $ (1.6 )   $ (8.4 )   $ 6.8  
Northern Appalachia     3.2       1.9       1.3  
Rhino Western     -       (0.5 )     0.5  
Illinois Basin     (2.8 )     (3.1 )     0.3  
Other     (2.0 )     (0.3 )     (1.7 )
Total   $ (3.2 )   $ (10.4 )   $ 7.2  

 

For the three months ended September 30 , 2016, total net loss from continuing operations was a loss of approximately $3.2 million compared to net loss from continuing operations of approximately $10.4 million for the three months ended September 30 , 2015. For the three months ended September 30, 2016, our total net loss from continuing operations was impacted by a charge of $2.0 million related to the reserve taken against the note receivable from our Deane mining complex sale discussed earlier. For the three months ended September 30, 2015, our total net loss from continuing operations was impacted by an asset impairment charge of $2.3 million related to our Deane mining complex discussed earlier.

 

For our Central Appalachia segment, net loss from continuing operations was approximately $1.6 million for the three months ended September 30 , 2016, a $6.8 million smaller net loss as compared to the three months ended September 30 , 2015, which was primarily related to the $2.3 million asset impairment charge incurred during the three months ended September 30 , 2015 for the Deane mining complex discussed earlier. Net income from continuing operations in our Northern Appalachia segment increased by $1.3 million to $3.2 million for the three months ended September 30 , 2016 from $1.9 million for the three months ended September 30 , 2015. This increase was primarily due to reducing costs at our Northern Appalachia operations. Net income (loss) from continuing operations in our Rhino Western segment was at a break-even level for the three months ended September 30 , 2016, compared to a net loss from continuing operations of $0.5 million for the three months ended September 30 , 2015. This decrease in net loss was primarily the result of lower costs at our Castle Valley operation during the three months ended September 30 , 2016 compared to the prior year. For our Illinois Basin segment, we generated a net loss from continuing operations of $2.8 million for the three months ended September 30 , 2016, which was an improvement of $0.3 million compared to the three months ended September 30 , 2015. This decrease in net loss was primarily the result of increased coal sales at our Pennyrile mining complex as well as lower costs per ton as we continued to optimize the operations at this mining facility. For the Other category, we had a net loss from continuing operations of $2.0 million for the three months ended September 30 , 2016 as compared to net loss from continuing operations of $0.3 million for the three months ended September 30 , 2015. This increase in net loss year to year was primarily attributable to a $2.0 million charge incurred during the three months ended September 30 , 2016 for a reserve against a note receivable that was recorded in 2015 related to the sale of the Deane mining complex discussed earlier.

 

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Adjusted EBITDA from Continuing Operations. The following table presents Adjusted EBITDA from continuing operations by reportable segment for the three months ended September 30 , 2016 and 2015:

 

    Three months ended     Three months ended     Increase  
Segment   September 30, 2016     September 30, 2015     (Decrease)  
        (in millions)        
Central Appalachia   $ 0.6     $ (2.9 )   $ 3.5  
Northern Appalachia     2.4       4.0       (1.6 )
Rhino Western     1.4       1.2       0.2  
Illinois Basin     0.1       (1.3 )     1.4  
Other     1.0       0.2       0.8  
Total   $ 5.5     $ 1.2     $ 4.3  

 

Adjusted EBITDA from continuing operations for the three months ended September 30 , 2016 was $5.5 million, an increase of $4.3 million from the three months ended September 30 , 2015. Adjusted EBITDA from continuing operations increased period to period primarily due to the lower net loss generated year-to-year discussed above. Adjusted EBITDA for the three months ended September 30, 2016 and 2015 were $5.6 million and $2.8 million, respectively, once the results from discontinued operations were included. Please read “—Reconciliations of Adjusted EBITDA” for reconciliations of Adjusted EBITDA from continuing operations to net income on a segment basis.

 

Nine Months Ended September 30, 2016 Compared to Nine Months Ended September 30, 2015

 

Summary. For the nine months ended September 30, 2016, our total revenues decreased to $124.3 million from $158.3 million for the nine months ended September 30, 2015, which is a 21.5% decrease. We sold approximately 2.4 million tons of coal for the nine months ended September 30, 2016, which is a 13.8% decrease compared to the tons of coal sold for the nine months ended September 30, 2015. The decrease in revenue and tons sold was primarily the result of continued weak demand and low prices in the met and steam coal markets, particularly in Central Appalachia, partially offset by increased sales from our Pennyrile operation in the Illinois Basin. We believe the weak demand in the steam and met coal markets for the nine months ended September 30, 2016 was due to the same factors discussed earlier.

 

Net loss from continuing operations decreased for the nine months ended September 30, 2016 compared to the nine months ended September 30, 2015. We generated a net loss from continuing operations of approximately $9.0 million for the nine months ended September 30, 2016 compared to a net loss from continuing operations of approximately $27.0 million for the nine months ended September 30, 2015. For the nine months ended September 30, 2016, our total net loss from continuing operations was benefited from a prior service cost benefit of approximately $3.9 million resulting from the cancellation of the postretirement benefit plan at our Hopedale operation, partially offset by a charge of $2.0 million related to the reserve taken against the note receivable from our Deane mining complex sale discussed earlier. Net loss from continuing operations for the nine months ended September 30, 2015 was impacted by the $2.2 million asset impairment charge incurred for our Cana Woodford oil and gas properties discussed above as well as the asset impairment charge of $2.3 million related to our Deane mining complex discussed earlier.

 

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Adjusted EBITDA from continuing operations increased to $14.9 million for the nine months ended September 30, 2016 from $5.7 million for the nine months ended September 30, 2015. Adjusted EBITDA from continuing operations increased period to period primarily due to the $3.9 million prior service cost benefit discussed above.

 

Including the loss from discontinued operations of approximately $117.9 million, our total net loss and Adjusted EBITDA for the nine months ended September 30, 2016 were $126.9 million and $16.7 million, respectively. Including the income from discontinued operations of approximately $5.6 million, our total net loss and Adjusted EBITDA for the nine months ended September 30, 2015 were $21.3 million and $13.1 million, respectively.

 

Tons Sold. The following table presents tons of coal sold by reportable segment for the nine months ended September 30, 2016 and 2015:

 

    Nine months     Nine months     Increase/        
    ended     ended     (Decrease)        
Segment   September 30, 2016     September 30, 2015     Tons     % *  
      (in thousands, except %)  
Central Appalachia     367.9       702.1       (334.2 )     (47.6 %)
Northern Appalachia     432.8       767.9       (335.1 )     (43.6 %)
Rhino Western     652.1       731.7       (79.6 )     (10.9 %)
Illinois Basin     953.7       590.2       363.5       61.6 %
Total *     2,406.5       2,791.9       (385.4 )     (13.8 %)

 

* Calculated percentages and the rounded totals presented are based upon on actual whole ton amounts and not the rounded amounts presented in this table.

 

We sold approximately 2.4 million tons of coal for the nine months ended September 30 , 2016, which was a 13.8% decrease compared to the nine months ended September 30 , 2015. The decrease in tons sold year-to-year was primarily due to lower sales from our Central Appalachia and Northern Appalachia segments due to weak demand for steam coal from this region. Tons of coal sold in our Central Appalachia segment decreased by approximately 47.6% to approximately 0.4 million tons for the nine months ended September 30 , 2016 compared to the nine months ended September 30 , 2015 , primarily due to a decrease in steam coal tons sold in the nine months ended September 30 , 2016 compared to 2015 due to ongoing weak market demand for coal from this region. For our Northern Appalachia segment, tons of coal sold decreased by approximately 43.6% for the nine months ended September 30 , 2016 compared to the nine months ended September 30 , 2015 as we experienced a decrease in tons sold from our Hopedale complex due to weak demand for coal from this region . Coal sales from our Rhino Western segment decreased by approximately 10.9% for the nine months ended September 30 , 2016 compared to the same period in 2015 due to decreased customer demand from our Castle Valley operation. For our Illinois Basin segment, tons of coal sold increased by approximately 61.6% for the nine months ended September 30 , 2016 compared to the nine months ended September 30 , 2015 as we increased production and sales year-to-year from our Pennyrile mine in western Kentucky to meet our contracted sales commitments.

 

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Revenues. The following table presents revenues and coal revenues per ton by reportable segment for the nine months ended September 30 , 2016 and 2015:

 

    Nine months     Nine months     Increase/        
    ended     ended     (Decrease)        
Segment   September 30, 2016     September 30, 2015     $     %*  
      (in millions, except per ton data and %)  
Central Appalachia                                
Coal revenues   $ 21.6     $ 40.4     $ (18.8 )     (46.6 %)
Freight and handling revenues     -       -       -       n/a  
Other revenues     0.1       9.3       (9.2 )     (98.9 %)
Total revenues   $ 21.7     $ 49.7     $ (28.0 )     (56.4 %)
Coal revenues per ton*   $ 58.62     $ 57.54     $ 1.08       1.9 %
Northern Appalachia                                
Coal revenues   $ 24.6     $ 44.7     $ (20.1 )     (44.9 %)
Freight and handling revenues     1.6       1.9       (0.3 )     (15.9 %)
Other revenues     5.5       5.9       (0.4 )     (7.1 %)
Total revenues   $ 31.7     $ 52.5     $ (20.8 )     (39.6 %)
Coal revenues per ton*   $ 56.91     $ 58.18     $ (1.27 )     (2.2 %)
Rhino Western                                
Coal revenues   $ 25.1     $ 27.2     $ (2.1 )     (7.7 %)
Freight and handling revenues     -       -       -       n/a  
Other revenues     -       -       -       n/a  
Total revenues   $ 25.1     $ 27.2     $ (2.1 )     (7.8 %)
Coal revenues per ton*   $ 38.55     $ 37.23     $ 1.32       3.5 %
Illinois Basin                                
Coal revenues   $ 45.4     $ 27.2     $ 18.2       67.1 %
Freight and handling revenues     -       -       -       n/a  
Other revenues     -       0.2       (0.2 )     (92.3 %)
Total revenues   $ 45.4     $ 27.4     $ 18.0       65.8 %
Coal revenues per ton*   $ 47.65     $ 46.06     $ 1.59       3.4 %
Other**                                
Coal revenues     n/a       n/a       n/a       n/a  
Freight and handling revenues     n/a       n/a       n/a       n/a  
Other revenues     0.4       1.5       (1.1 )     (74.1 %)
Total revenues   $ 0.4     $ 1.5     $ (1.1 )     (74.1 %)
Coal revenues per ton*     n/a       n/a       n/a       n/a  
Total                                
Coal revenues   $ 116.7     $ 139.5     $ (22.8 )     (16.3 %)
Freight and handling revenues     1.6       1.9       (0.3 )     (15.9 %)
Other revenues     6.0       16.9       (10.9 )     (64.8 %)
Total revenues   $ 124.3     $ 158.3     $ (34.0 )     (21.5 %)
Coal revenues per ton*   $ 48.52     $ 49.96     $ (1.44 )     (2.9 %)

 

* Percentages and per ton amounts are calculated based on actual amounts and not the rounded amounts presented in this table.
   
** The Other category includes results for our ancillary businesses. The activities performed by these ancillary businesses also do not directly relate to coal production. As a result, coal revenues and coal revenues per ton are not presented for the Other category.

 

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Our coal revenues for the nine months ended September 30 , 2016 decreased by approximately $22.8 million, or 16.3%, to approximately $116.7 million from approximately $139.5 million for the nine months ended September 30 , 2015. The decrease in coal revenues was primarily due to fewer steam coal tons sold in Northern Appalachia and Central Appalachia, partially offset by increased sales from our Pennyrile mine in the Illinois Basin . Coal revenues per ton was $48.52 for the nine months ended September 30 , 2016, a decrease of $1.44, or 2.9%, from $49.96 per ton for the nine months ended September 30 , 2015. This decrease in coal revenues per ton was primarily the result of a larger mix of lower priced tons sold from Pennyrile.

 

For our Central Appalachia segment, coal revenues decreased by approximately $18.8 million, or 46.6%, to approximately $21.6 million for the nine months ended September 30 , 2016 from approximately $40.4 million for the nine months ended September 30 , 2015. This decrease was primarily due to fewer steam coal tons sold, which reflects the weak coal market conditions for coal from this region. Coal revenues per ton for our Central Appalachia segment increased by $1.08, or 1.9%, to $58.62 per ton for the nine months ended September 30 , 2016 as compared to $57.54 for the nine months ended September 30 , 2015, primarily due to a higher mix of higher priced met coal tons sold compared to the prior year.

 

For our Northern Appalachia segment, coal revenues were approximately $24.6 million for the nine months ended September 30 , 2016, a decrease of approximately $20.1 million, or 44.9%, from approximately $44.7 million for the nine months ended September 30 , 2015. This decrease was primarily due to a decrease in tons sold from our Hopedale complex in Northern Appalachia due to weak demand for coal from this region. Coal revenues per ton for our Northern Appalachia segment decreased by $1.27, or 2.2%, to $56.91 per ton for the nine months ended September 30 , 2016 as compared to $58.18 per ton for the nine months ended September 30 , 2015. This decrease was primarily due to the larger mix of lower priced tons being sold from our Sands Hill complex compared to higher priced tons sold from our Hopedale complex.

 

For our Rhino Western segment, coal revenues decreased by approximately $2.1 million, or 7.7%, to approximately $25.1 million for the nine months ended September 30 , 2016 from approximately $27.2 million for the nine months ended September 30 , 2015, primarily due to a decrease in tons sold due to decreased customer demand at our Castle Valley operation. Coal revenues per ton for our Rhino Western segment was $38.55 for the nine months ended September 30 , 2016, an increase of $1.32, or 3.5%, from $37.23 for the nine months ended September 30 , 2015. The increase in coal revenues per ton was due to an increase in the contracted sales prices for steam coal sales from our Castle Valley mine for the nine months ended September 30 , 2016 compared to the same period in 2015.

 

For our Illinois Basin segment, coal revenues of approximately $45.4 million for the nine months ended September 30 , 2016 increased by approximately $18.2 million, or 67.1%, compared to $27.2 million for the nine months ended September 30 , 2015. The increase was due to increased sales from our Pennyrile mine in western Kentucky to fulfill our customer contracts. Coal revenues per ton for our Illinois Basin segment was $47.65 for the nine months ended September 30 , 2016, an increase of $1.59, or 3.4%, from $46.06 for the nine months ended September 30 , 2015. The increase in coal revenues per ton was due to higher contracted prices for tons sold.

 

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Other revenues for our Other category decreased to approximately $0.4 million for the nine months ended September 30 , 2016 as compared to approximately $1.5 million for the nine months ended September 30 , 2015. This decrease in revenue was primarily due to the decreased business activity in our ancillary businesses and oil and natural gas investments.

 

Central Appalachia Overview of Results by Product. Additional information for the Central Appalachia segment detailing the types of coal produced and sold, premium high-vol met coal and steam coal, is presented below. Note that our Northern Appalachia, Rhino Western and Illinois Basin segments currently produce and sell only steam coal.

 

(In thousands, except per ton data and %)   Nine months ended September 30, 2016     Nine months ended September 30, 2015     Increase (Decrease) %*  
Met coal tons sold     135.4       158.9       (14.8 %)
Steam coal tons sold     232.5       543.2       (57.2 %)
Total tons sold     367.9       702.1       (47.6 %)
                         
Met coal revenue   $ 9,553     $ 12,654       (24.5 %)
Steam coal revenue   $ 12,016     $ 27,743       (56.7 %)
Total coal revenue   $ 21,569     $ 40,397       (46.6 %)
                         
Met coal revenues per ton   $ 70.55     $ 79.65       (11.4 %)
Steam coal revenues per ton   $ 51.67     $ 51.07       1.2 %
Total coal revenues per ton   $ 58.62     $ 57.54       1.9 %
                         
Met coal tons produced     165.8       201.7       (17.8 %)
Steam coal tons produced     242.3       424.5       (42.9 %)
Total tons produced     408.1       626.2       (34.8 %)

 

* Percentage amounts are calculated based on actual amounts and not the rounded amounts presented in this table.

 

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Costs and Expenses. The following table presents costs and expenses (including the cost of purchased coal) and cost of operations per ton by reportable segment for the nine months ended September 30 , 2016 and 2015:

 

    Nine months     Nine months     Increase/        
    ended     ended     (Decrease)        
Segment   September 30, 2016     September 30, 2015     $     %*  
    (in millions, except per ton data and %)  
Central Appalachia                                
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)   $ 12.5     $ 38.9     $ (26.4 )     (68.0 %)
Freight and handling costs     -       -       -       n/a  
Depreciation, depletion and amortization     4.9       9.1       (4.2 )     (45.4 %)
Selling, general and administrative     9.4       11.0       (1.6 )     (14.3 %)
Cost of operations per ton*   $ 33.86     $ 55.41     $ (21.55 )     (38.9 %)
                                 
Northern Appalachia                                
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)   $ 18.5     $ 37.8     $ (19.3 )     (51.2 %)
Freight and handling costs     1.5       1.9       (0.4 )     (24.2 %)
Depreciation, depletion and amortization     2.6       5.7       (3.1 )     (55.4 %)
Selling, general and administrative     0.1       0.2       (0.1 )     (43.9 %)
Cost of operations per ton*   $ 42.67     $ 49.27     $ (6.60 )     (13.4 %)
                                 
Rhino Western                                
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)   $ 19.9     $ 24.1     $ (4.2 )     (17.6 %)
Freight and handling costs     -       -       -       n/a  
Depreciation, depletion and amortization     4.1       4.8       (0.7 )     (14.8 %)
Selling, general and administrative     -       -       -       n/a  
Cost of operations per ton*   $ 30.47     $ 32.98     $ (2.51 )     (7.6 %)
                                 
Illinois Basin                                
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)   $ 39.9     $ 31.3     $ 8.6       27.6 %
Freight and handling costs     -       -       -       n/a  
Depreciation, depletion and amortization     6.3       4.3       2.0       47.8 %
Selling, general and administrative     0.1       -       0.1       166.4 %
Cost of operations per ton*   $ 41.81     $ 52.95     $ (11.14 )     (21.0 %)
                                 
Other                                
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)   $ 7.4     $ 7.6     $ (0.2 )     (2.4 %)
Freight and handling costs     -       -       -       n/a  
Depreciation, depletion and amortization     0.4       0.6       (0.2 )     (27.7 %)
Selling, general and administrative     2.6       0.6       2.0       345.9 %
Cost of operations per ton**     n/a       n/a       n/a       n/a  
                                 
Total                                
Cost of operations (exclusive of depreciation, depletion and amortization shown separately below)   $ 98.2     $ 139.7     $ (41.5 )     (29.8 %)
Freight and handling costs     1.5       1.9       (0.4 )     (24.2 %)
Depreciation, depletion and amortization     18.3       24.5       (6.2 )     (25.0 %)
Selling, general and administrative     12.2       11.8       0.4       (3.8 %)
Cost of operations per ton*   $ 40.77     $ 50.05     $ (9.28 )     (18.6 %)

 

* Percentages and per ton amounts are calculated based on actual amounts and not the rounded amounts presented in this table.

 

** Cost of operations presented for our Other category includes costs incurred by our ancillary businesses and our oil and natural gas investments. The activities performed by these ancillary businesses do not directly relate to coal production. As a result, per ton measurements are not presented for this category.

 

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Cost of Operations. Total cost of operations was $98.2 million for the nine months ended September 30 , 2016 as compared to $139.7 million for the nine months ended September 30 , 2015. Our cost of operations per ton was $40.77 for the nine months ended September 30 , 2016, a decrease of $9.28, or 18.6%, from the nine months ended September 30 , 2015. Total cost of operations decreased primarily due to lower costs in Central Appalachia and Northern Appalachia as we reduced production in these regions in response to weak market demand, partially offset by increased costs from higher production at our Pennyrile mine in the Illinois Basin. The decrease in the cost of operations on a per ton basis was primarily due to a decrease from our Pennyrile mine in the Illinois Basin as we increased and optimized production during the nine months ended September 30 , 2016 compared to the same period in 2015, as well as the $3.9 million benefit in Northern Appalachia during the nine months ended September 30 , 2016 from the prior service cost benefit resulting from the cancellation of the postretirement benefit plan at our Hopedale operation.

 

Our cost of operations for the Central Appalachia segment decreased by $26.4 million, or 68.0%, to $12.5 million for the nine months ended September 30 , 2016 from $38.9 million for the nine months ended September 30 , 2015. Total cost of operations decreased year-to-year since we decreased production during the nine months ended September 30 , 2016 in response to weak market conditions. Our cost of operations per ton of $33.86 for the nine months ended September 30 , 2016 was a reduction of 38.9% compared to $55.41 per ton for the nine months ended September 30 , 2015, as we produced coal from lower cost operations during the nine months ended September 30 , 2016.

 

In our Northern Appalachia segment, our cost of operations decreased by $19.3 million, or 51.2%, to $18.5 million for the nine months ended September 30 , 2016 from $37.8 million for the nine months ended September 30 , 2015. Our cost of operations per ton was $42.67 for the nine months ended September 30 , 2016, a decrease of $6.60, or 13.4%, compared to $49.27 for the nine months ended September 30 , 2015. The decrease in cost of operations and cost of operations per ton was primarily due to the $3.9 million prior service cost benefit during the nine months ended September 30 , 2016 resulting from the cancellation of the postretirement benefit plan at our Hopedale operation.

 

Our cost of operations for the Rhino Western segment decreased by $4.2 million, or 17.6%, to $19.9 million for the nine months ended September 30 , 2016 from $24.1 million for the nine months ended September 30 , 2015. Our cost of operations per ton was $30.47 for the nine months ended September 30 , 2016, a decrease of $2.51, or 7.6%, compared to $32.98 for the nine months ended September 30 , 2015. Total cost of operations and cost of operations per ton decreased for the nine months ended September 30 , 2016 compared to the same period in 2015 due to lower maintenance and other costs from our Castle Valley operation.

 

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Cost of operations in our Illinois Basin segment was $39.9 million while cost of operations per ton was $41.81 for the nine months ended September 30 , 2016, both of which related to our Pennyrile mining complex in western Kentucky. For the nine months ended September 30 , 2015, cost of operations in our Illinois Basin segment was $31.3 million and cost of operations per ton was $52.95. The increase in cost of operations was primarily the result of increased production year-to-year at the Pennyrile complex, while cost of operations per ton decreased as we continued to optimize the cost structure at this mining complex.

 

Cost of operations in our Other category was relatively flat at $7.4 million for the nine months ended September 30 , 2016 as compared to $7.6 million for the nine months ended September 30, 2015.

 

Freight and Handling. Total freight and handling cost decreased to $1.5 million for the nine months ended September 30 , 2016 as compared to $1.9 million for the nine months ended September 30 , 2015 as we sold fewer tons from our Sands Hill mining complex that requires trucking to customers.

 

Depreciation, Depletion and Amortization. Total depreciation, depletion and amortization (“DD&A”) expense for the nine months ended September 30 , 2016 was $18.3 million as compared to $24.5 million for the nine months ended September 30 , 2015.

 

For the nine months ended September 30 , 2016, our depreciation cost decreased to $15.9 million compared to $22.2 million for the nine months ended September 30 , 2015. This decrease primarily resulted from lower depreciation costs in our Central Appalachia segment compared to the prior year as we disposed of excess equipment in this region.

 

For the nine months ended September 30 , 2016, our depletion cost was relatively flat at $1.2 million compared to $1.1 million for the nine months ended September 30 , 2015.

 

For the nine months ended September 30 , 2016, our amortization cost was relatively flat at $1.2 million compared to the nine months ended September 30 , 2015.

 

Selling, General and Administrative. Selling, general and administrative (“SG&A”) expense for the nine months ended September 30 , 2016 increased to $12.2 million as compared to $11.8 million for the nine months ended September 30 , 2015. This increase was primarily attributable to a $2.0 million charge incurred during the nine months ended September 30, 2016 for a reserve against a note receivable that was recorded in 2015 related to the sale of the Deane mining complex discussed earlier.

 

Interest Expense . Interest expense for the nine months ended September 30 , 2016 increased to $5.2 million as compared to $3.7 million for the nine months ended September 30 , 2015. This increase was primarily due to higher interest rates on our senior secured credit facility along with the write-off of approximately $0.3 million of our unamortized debt issuance costs during the nine months ended September 30 , 2016. This write-off was due to the fourth and fifth amendments of our credit facility during the nine months ended September 30 , 2016 that reduced the borrowing capacity from $100 million to $75 million. See the discussion on our credit agreement in “Liquidity and Capital Resources - Amended and Restated Credit Agreement” for more information on these amendments.

 

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Net Income (Loss) from Continuing Operations. The following table presents net income (loss) from continuing operations by reportable segment for the nine months ended September 30 , 2016 and 2015:

 

    Nine months Ended     Nine months Ended     Increase  
Segment   September 30, 2016     September 30, 2015     (Decrease)  
    (in millions)  
Central Appalachia   $ (10.1 )   $ (16.3 )   $ 6.2  
Northern Appalachia     9.0       4.6       4.4  
Rhino Western     (0.6 )     (3.0 )     2.4  
Illinois Basin     (4.2 )     (10.3 )     6.1  
Other     (3.1 )     (1.9 )     (1.2 )
Total   $ (9.0 )   $ (26.9 )   $ 17.9  

 

For the nine months ended September 30 , 2016, total net loss from continuing operations was a loss of approximately $9.0 million compared to net loss from continuing operations of approximately $26.9 million for the nine months ended September 30 , 2015. For the nine months ended September 30, 2016, our total net loss from continuing operations was benefited from a prior service cost benefit of approximately $3.9 million resulting from the cancellation of the postretirement benefit plan at our Hopedale operation. Net loss from continuing operations for the nine months ended September 30, 2015 was impacted by the $2.2 million asset impairment charge incurred for our Cana Woodford oil and gas properties discussed above as well as the asset impairment charge of $2.3 million related to our Deane mining complex discussed earlier. Including the loss from discontinued operations of approximately $117.9 million, our total net loss for the nine months ended September 30, 2016 was $126.9 million. Including the income from discontinued operations of approximately $5.6 million, our total net loss for the nine months ended September 30, 2015 was $21.3 million.

 

For our Central Appalachia segment, net loss from continuing operations was approximately $10.1 million for the nine months ended September 30 , 2016, a $6.2 million smaller net loss as compared to the nine months ended September 30 , 2015, which was primarily related to the $2.3 million asset impairment charge incurred during the three months ended September 30 , 2015 for the Deane mining complex discussed earlier. Net income from continuing operations in our Northern Appalachia segment increased by $4.4 million to $9.0 million for the nine months ended September 30 , 2016 from $4.6 million for the nine months ended September 30 , 2015. This increase was primarily due the prior service cost benefit of approximately $3.9 million resulting from the cancellation of the postretirement benefit plan at our Hopedale operation. Net loss from continuing operations in our Rhino Western segment was a loss of $0.6 million for the nine months ended September 30 , 2016, compared to a net loss from continuing operations of $3.0 million for the nine months ended September 30 , 2015. This decrease in net loss was primarily the result of lower costs at our Castle Valley operation during the nine months ended September 30 , 2016 compared to the prior year. For our Illinois Basin segment, we generated a net loss from continuing operations of $4.2 million for the nine months ended September 30 , 2016, which was an improvement of $6.1 million compared to the nine months ended September 30 , 2015. This decrease in net loss was primarily the result of increased coal sales at our Pennyrile mining complex as well as lower costs per ton as we continued to optimize the operations at this mining facility. For the Other category, we had a net loss from continuing operations of $3.1 million for the nine months ended September 30 , 2016 as compared to a net loss from continuing operations of $1.9 million for the nine months ended September 30 , 2015. This increase in net loss year to year was primarily attributable to a $2.0 million charge incurred during the three months ended September 30, 2016 for a reserve against a note receivable that was recorded in 2015 related to the sale of the Deane mining complex discussed earlier.

 

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Adjusted EBITDA from Continuing Operations. The following table presents Adjusted EBITDA from continuing operations by reportable segment for the nine months ended S eptember 30 , 2016 and 2015:

 

    Nine months Ended     Nine months Ended     Increase  
Segment   September 30, 2016     September 30, 2015     (Decrease)  
    (in millions)  
Central Appalachia   $ (3.4 )   $ (3.5 )   $ 0.1  
Northern Appalachia     10.2       10.8       (0.6 )
Rhino Western     3.8       2.0       1.8  
Illinois Basin     2.8       (5.6 )     8.4  
Other     1.5       2.0       (0.5 )
Total   $ 14.9     $ 5.7     $ 9.2  

 

Adjusted EBITDA from continuing operations for the nine months ended September 30 , 2016 was $14.9 million, an increase of $9.2 million from the nine months ended September 30 , 2015. Adjusted EBITDA from continuing operations increased period to period due to the improvement year-to-year in our loss from continuing operations as well as the prior service cost benefit of approximately $3.9 million resulting from the cancellation of the postretirement benefit plan at our Hopedale operation. Adjusted EBITDA for the nine months ended September 30 , 2016 and 2015 were $16.7 million and $13.1 million, respectively, once the results from discontinued operations were included. Please read “—Reconciliations of Adjusted EBITDA” for reconciliations of Adjusted EBITDA from continuing operations to net income on a segment basis.

 

Reconciliations of Adjusted EBITDA

 

The following tables present reconciliations of Adjusted EBITDA to the most directly comparable GAAP financial measures for each of the periods indicated:

 

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    Central     Northern     Rhino     Illinois              
Three months ended September 30, 2016   Appalachia     Appalachia     Western     Basin     Other     Total**  
      (in millions)    
Net income/(loss) from continuing operations   $ (1.5 )   $ 3.2     $ -     $ (2.8 )   $ (2.1 )   $ (3.2 )
Plus:                                                
DD&A     1.6       0.8       1.3       2.6       0.2       6.5  
Interest expense     0.5       -       0.1       0.3       1.0       1.9  
EBITDA from continuing operations†   $ 0.6     $ 4.0     $ 1.4     $ 0.1     $ (0.9 )   $ 5.2  
Plus: Provision for doubtful accounts (1)     -       -       -       -       2.0       2.0  
Plus: Gain on extinguishment of debt (2)     -       (1.7 )     -       -       -       (1.7 )
Adjusted EBITDA from continuing operations†     0.6       2.3       1.4       0.1       1.1       5.5  
EBITDA from discontinued operations     0.1       -       -       -       -       0.1  
Adjusted EBITDA †   $ 0.7     $ 2.3     $ 1.4     $ 0.1     $ 1.1     $ 5.6  

 

    Central     Northern     Rhino     Illinois              
Nine months ended September 30, 2016   Appalachia     Appalachia     Western     Basin     Other     Total**  
    (in millions)  
Net income/(loss) from continuing operations   $ (10.1 )   $ 9.0     $ (0.6 )   $ (4.2 )   $ (3.1 )   $ (9.0 )
Plus:                                                
DD&A     4.9       2.6       4.1       6.3       0.4       18.3  
Interest expense     1.7       0.3       0.3       0.7       2.2       5.2  
EBITDA from continuing operations† **   $   $ 11.9     $ 3.8     $ 2.8     $ (0.5 )   $ 14.6  
Plus: Provision for doubtful accounts (1)     -       -       -       -       2.0       2.0  
Plus: Gain on extinguishment of debt (2)     -       (1.7 )     -       -       -       (1.7 )
Adjusted EBITDA from continuing operations†     (3.4 )     10.2       3.8       2.8       1.5       14.9  
EBITDA from discontinued operations     1.8       -       -       -       -       1.8  
Adjusted EBITDA †   $ (1.6 )   $ 10.2     $ 3.8     $ 2.8     $ 1.5     $ 16.7  

 

    Central     Northern     Rhino     Illinois              
Three months ended September 30, 2015   Appalachia     Appalachia     Western     Basin     Other     Total**  
    (in millions)  
Net income/(loss) from continuing operations   $ (8.4 )   $ 2.0     $ (0.5 )   $ (3.1 )   $ (0.4 )   $ (10.4 )
Plus:                                                
DD&A     2.6       1.9       1.6       1.6       0.1       7.8  
Interest expense     0.5       0.1       0.1       0.2       0.5       1.4  
EBITDA from continuing operations†   $ (5.3 )   $ 4.0     $ 1.2     $ (1.3 )   $ 0.2     $ (1.2 )
Plus: Non-cash asset impairment (3)     2.3       -       -       -       -       2.3  
Adjusted EBITDA from continuing operations†     (3.0 )     4.0       1.2       (1.3 )     0.3       1.2  
EBITDA from discontinued operations     1.6       -       -       -       -       1.6  
Adjusted EBITDA †   $ (1.4 )   $ 4.0     $ 1.2     $ (1.3 )   $ 0.3     $ 2.8  

 

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    Central     Northern     Rhino     Illinois              
Nine months ended September 30, 2015   Appalachia     Appalachia     Western     Basin     Other     Total**  
    (in millions)  
Net income/(loss) from continuing operations   $ (16.3 )   $ 4.6     $ (3.0 )   $ (10.3 )   $ (1.9 )   $ (26.9 )
Plus:                                                
DD&A     9.1       5.7       4.8       4.3       0.6       24.5  
Interest expense     1.4       0.5       0.2       0.4       1.1       3.6  
EBITDA from continuing operations† **   $ (5.8 )   $ 10.8     $ 2.0     $ (5.6 )   $ (0.2 )   $ 1.2  
Plus: Non-cash asset impairment (3)     2.3       -       -       -       2.2       4.5  
Adjusted EBITDA from continuing operations†   $ (3.5 )     10.8       2.0       (5.6 )     2.0       5.7  
EBITDA from discontinued operations     6.7       -       -       -       0.7       7.4  
Adjusted EBITDA †   $ 3.2     $ 10.8     $ 2.0     $ (5.6 )   $ 2.7     $ 13.1  

 

* Includes our 51% equity interest in the results of the joint venture, which owns the Rhino Eastern mining complex located in West Virginia and for which we serve as manager.
   
** Totals may not foot due to rounding.
   
EBITDA is calculated based on actual amounts and not the rounded amounts presented in this table.
   
(1) During the three and nine months ended September 30, 2016, we recorded a $2.0 million reserve against a note receivable that was recorded in 2015 related to the sale of the Deane mining complex discussed earlier. We believe that the isolation and presentation of this specific item to arrive at Adjusted EBITDA is useful because it enhances investors’ understanding of how we assess the performance of our business. We believe the adjustment of this item provides investors with additional information that they can utilize in evaluating our performance. Additionally, we believe the isolation of this item provides investors with enhanced comparability to prior and future periods of our operating results.
   
(2) For the three and nine months ended September 30, 2016, we recorded a gain of approximately $1.7 million for the extinguishment of debt. We executed an agreement with the third party that held approximately $2.8 million of other notes payable to settle the debt for $1.1 million of cash consideration, which resulted in an approximate $1.7 million gain from the extinguishment of this debt. We believe that the isolation and presentation of this specific item to arrive at Adjusted EBITDA is useful because it enhances investors’ understanding of how we assess the performance of our business. We believe the adjustment of this item provides investors with additional information that they can utilize in evaluating our performance. Additionally, we believe the isolation of this item provides investors with enhanced comparability to prior and future periods of our operating results.
   
(3) During the three and nine months ended September 30, 2015, we recorded asset impairment losses of approximately $2.3 million and $4.5 million, respectively. For the three months ended September 30, 2015, we recorded an asset impairment loss of approximately $2.3 million for our Deane mining complex since this asset is classified as held for sale and was written down to its estimated fair value less costs to sell as of September 30, 2015. For the nine months ended September 30, 2015, we recorded an additional asset impairment loss of approximately $2.2 million for our Cana Woodford mineral rights since this asset was classified as held for sale and was written down to its estimated fair value less costs to sell as of June 30, 2015. We believe that the isolation and presentation of these specific items to arrive at Adjusted EBITDA is useful because it enhances investors’ understanding of how we assess the performance of our business. We believe the adjustment of these items provides investors with additional information that they can utilize in evaluating our performance. Additionally, we believe the isolation of these items provides investors with enhanced comparability to prior and future periods of our operating results.

 

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    Three months ended
September 30,
    Nine months ended
September 30,
 
    2016     2015     2016     2015  
    (in millions)  
Net cash provided by operating activities   $ 1.1     $ 2.5     $ 5.1     $ 13.9  
Plus:                                
Increase in net operating assets     5.1       -       6.1       -  
Gain on sale of assets     0.1       0.5       0.4       1.2  
Amortization of deferred revenue     0.6       0.4       1.3       2.1  
Amortization of actuarial gain     -       -       4.8       0.1  
Interest expense     1.9       1.4       5.2       3.7  
Equity in net income of unconsolidated affiliate     -       0.1       -       0.3  
Less:                                
Decrease in net operating assets     -       1.1       -       4.6  
Amortization of advance royalties     0.1       0.2       0.7       0.6  
Amortization of debt issuance costs     1.0       0.3       2.0       1.1  
Loss on retirement of advanced royalties     -       -       0.1       -  
Equity-based compensation     -       -       0.5       -  
Provision for doubtful accounts     2.0       0.1       2.0       0.5  
Loss on asset impairments     -       2.3       -       4.5  
Loss on disposal of business     0.5       -       119.2       -  
Accretion on asset retirement obligations     0.4       0.5       1.1       1.7  
Distribution from unconsolidated affiliates     -       -       -       0.2  
Equity in net loss of unconsolidated affiliates     -       -       0.1       -  
Gain on extinguishment of debt     1.7       -       1.7       -  
EBITDA†   $ 3.1     $ 0.4     $ (104.5 )   $ 8.1  
Plus: Loss on disposal of business and asset impairments (1)     0.5       2.3       119.2       4.5  
Plus: Provision for doubtful accounts (2)     2.0       0.1       2.0       0.5  
Adjusted EBITDA† **     5.6       2.8       16.7       13.1  
Less: EBITDA from discontinued operations     0.1       1.6       1.8       7.4  
Adjusted EBITDA from continuing operations †   $ 5.5     $ 1.2     $ 14.9     $ 5.7  

 

EBITDA is calculated based on actual amounts and not the rounded amounts presented in this table.
   
** Totals may not foot due to rounding.
   
(1) For the three and nine months ended September 30, 2016, we recorded losses of $0.5 million and $119.2 million related to the sale of our Elk Horn coal leasing company that was discussed earlier. For the three and nine months ended September 30, 2015, we recorded asset impairment losses of approximately $2.3 million and $4.5 million, respectively. For the three months ended September 30, 2015, we recorded an asset impairment loss of approximately $2.3 million for our Deane mining complex since this asset is classified as held for sale and was written down to its estimated fair value less costs to sell as of September 30, 2015. For the nine months ended September 30, 2015, we recorded an additional asset impairment loss of approximately $2.2 million for our Cana Woodford mineral rights since this asset was classified as held for sale and was written down to its estimated fair value less costs to sell as of June 30, 2015. We believe that the isolation and presentation of this specific item to arrive at Adjusted EBITDA is useful because it enhances investors’ understanding of how we assess the performance of our business. We believe the adjustment of this item provides investors with additional information that they can utilize in evaluating our performance. Additionally, we believe the isolation of this item provides investors with enhanced comparability to prior and future periods of our operating results.

 

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(2) For the three and nine months ended September 30, 2016, we recorded a $2.0 million reserve against a note receivable that was recorded in 2015 related to the sale of the Deane mining complex discussed earlier. During the three and nine months ended September 30, 2015, we recorded provisions for doubtful accounts of approximately $0.1 million and $0.5 million, respectively, related to a few of our Elk Horn lessee customers in Central Appalachia that were in bankruptcy proceedings. We believe that the isolation and presentation of this specific item to arrive at Adjusted EBITDA is useful because it enhances investors’ understanding of how we assess the performance of our business. We believe the adjustment of this item provides investors with additional information that they can utilize in evaluating our performance. Additionally, we believe the isolation of this item provides investors with enhanced comparability to prior and future periods of our operating results.

 

Liquidity and Capital Resources

 

Liquidity

 

The principal indicators of our liquidity are our cash on hand and availability under our Amended and Restated Credit Agreement. As of September 30, 2016, our available liquidity was $4.0 million, which was comprised of our availability under our credit agreement.

 

Our business is capital intensive and requires substantial capital expenditures for purchasing, upgrading and maintaining equipment used in developing and mining our reserves, as well as complying with applicable environmental and mine safety laws and regulations. Our principal liquidity requirements are to finance current operations, fund capital expenditures, including acquisitions from time to time, and service our debt. Historically, our sources of liquidity included cash generated by our operations, borrowings under our credit agreement and issuances of equity securities. Our ability to access the capital markets on economic terms in the future will be affected by general economic conditions, the domestic and global financial markets, our operational and financial performance, the value and performance of our equity securities, prevailing commodity prices and other macroeconomic factors outside of our control. Failure to obtain financing or to generate sufficient cash flow from operations could cause us to significantly reduce our spending and to alter our short- or long-term business plan. We may also be required to consider other options, such as selling assets or merger opportunities, and depending on the urgency of our liquidity constraints, we may be required to pursue such an option at an inopportune time.

 

Prior to our entry into the Fifth Amendment, we were unable to demonstrate that we had sufficient liquidity to operate our business over the subsequent twelve months and thus, substantial doubt was raised about our ability to continue as a going concern. Accordingly, our independent registered public accounting firm included an emphasis paragraph with respect to our ability to continue as a going concern in its report on our consolidated financial statements for the year ended December 31, 2015. The presence of the going concern emphasis paragraph in our auditors’ report may have an adverse impact on our relationship with third parties with whom we do business, including our customers, vendors, lenders and employees, making it difficult to raise additional debt or equity financing to the extent needed and conduct normal operations. As a result, our business, results of operations, financial condition and prospects could be materially adversely affected.

 

On March 17, 2016, our Operating Company, as borrower, and we and certain of our subsidiaries, as guarantors, entered into a fourth amendment (the “Fourth Amendment”) of our Amended and Restated Credit Agreement. The Fourth Amendment amended the definition of change of control in the Amended and Restated Credit Agreement to permit Royal to purchase the membership interests of the General.

 

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On May 13, 2016, we entered into the Fifth Amendment of the Amended and Restated Credit Agreement, which extended the term to July 31, 2017.

 

In July 2016, we entered into a sixth amendment (the “Sixth Amendment”) of our amended and restated senior secured credit facility that permitted the sale of Elk Horn that was discussed earlier. (see “—Liquidity and Capital Resources—Amended and Restated Credit Agreement” for further details of the Fourth, Fifth and Sixth Amendments).

 

In order to borrow under our senior secured credit facility, we must make certain representations and warranties to our lenders at the time of each borrowing. If we are unable to make these representations and warranties, we would be unable to borrow under our senior secured credit facility, absent a waiver. Furthermore, if we violate any of the covenants or restrictions in our Amended and Restated Credit Agreement, including the maximum leverage ratio and minimum EBITDA requirement, some or all of our indebtedness may become immediately due and payable, and our lenders’ commitment to make further loans to us may terminate. Given the continued weak demand and low prices for met and steam coal, we may not be able to continue to give the required representations or meet all of the covenants and restrictions included in our senior secured credit facility. If we are unable to give a required representation or we violate a covenant or restriction, then we will need a waiver from our lenders in order to continue to borrow under our Amended and Restated Credit Agreement. Although we believe our lenders loans are well secured under the terms of our Amended and Restated Credit Agreement, there is no assurance that the lenders would agree to any such waiver.

 

We continue to take measures, including the suspension of cash distributions on our common and subordinated units and cost and productivity improvements, to enhance and preserve our liquidity so that we can fund our ongoing operations and necessary capital expenditures and meet our financial commitments and debt service obligations. For the quarter ended September 30, 2016, we continued the suspension of the cash distribution for our common units, which was initially suspended beginning with the quarter ended June 30, 2015. For the quarters ended September 30, 2014 and December 31, 2014, we announced cash distributions of $0.05 per common unit, or $0.20 per unit on an annualized basis, and for the quarter ended March 31, 2015, we announced cash distributions of $0.02 per common unit, or $0.08 per unit on an annualized basis. Each of these quarters’ distribution levels were lower than the previous quarters’ distribution amounts of $0.445 per common unit, or $1.78 per unit on an annualized basis. We have not paid any distribution on our subordinated units for any quarter after the quarter ended March 31, 2012. The distribution suspension and prior reductions were the result of prolonged weakness in the coal markets, which has continued to adversely affect our cash flow.

 

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Cash Flows

 

Net cash provided by operating activities was $5.1 million for the nine months ended September 30, 2016 as compared to cash provided by operating activities of $13.9 million for the nine months ended September 30, 2015. This decrease in cash provided by operating activities was primarily the result of ongoing weak coal market conditions discussed above for the nine months ended September 30, 2016 as compared to 2015.

 

Net cash provided by investing activities was $5.1 million for the nine months ended September 30, 2016 as compared to cash used for investing activities of $4.5 million for the nine months ended September 30, 2015. Net cash provided by investing activities for the nine months ended September 30, 2016 was primarily related to the proceeds from the sale of Elk Horn coal leasing operation, partially offset by our capital expenditures necessary for maintaining our mining operations. Net cash used for investing activities for the nine months ended September 30, 2015 is primarily related to our capital expenditures necessary for maintaining our mining operations.

 

Net cash used in financing activities for the nine months ended September 30, 2016 was $10.3 million, which was primarily attributable to net repayments on our revolving credit facility this period with the proceeds from the sale of our Elk Horn coal leasing operation as well as contributions from Royal’s acquisition of common units. Net cash used in financing activities for the nine months ended September 30, 2015 was $9.9 million, which was primarily attributable to fees paid for the third amendment of our credit facility, as well as distributions paid to unitholders.

 

Capital Expenditures

 

Our mining operations require investments to expand, upgrade or enhance existing operations and to meet environmental and safety regulations. Maintenance capital expenditures are those capital expenditures required to maintain our long term operating capacity. Examples of maintenance capital expenditures include expenditures associated with the replacement of equipment and coal reserves, whether through the expansion of an existing mine or the acquisition or development of new reserves to the extent such expenditures are made to maintain our long term operating capacity. Expansion capital expenditures are those capital expenditures that we expect will increase our operating capacity over the long term. Examples of expansion capital expenditures include the acquisition of reserves, equipment for a new mine or the expansion of an existing mine to the extent such expenditures are expected to expand our long-term operating capacity.

 

Actual maintenance capital expenditures for the nine months ended September 30, 2016 were approximately $1.1 million. These amounts were primarily used to rebuild, repair or replace older mining equipment. Expansion capital expenditures for the nine months ended September 30, 2016 were approximately $4.8 million, which were primarily related to the payments for the final development of our new Riveredge mine on our Pennyrile property in western Kentucky.

 

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Amended and Restated Credit Agreement

 

On July 29, 2011, we executed the Amended and Restated Credit Agreement. The maximum availability under the amended and restated credit facility was $300.0 million, with a one-time option to increase the availability by an amount not to exceed $50.0 million. Of the $300.0 million, $75.0 million was available for letters of credit. In April 2015, the Amended and Restated Credit Agreement was amended and the borrowing commitment under the facility was reduced to $100.0 million and the amount available for letters of credit was reduced to $50.0 million. As described below, in March 2016 and May 2016, the borrowing commitment under the facility was further reduced to $80.0 million and $75.0 million, respectively, and the amount available for letters of credit was reduced to $30.0 million.

 

Loans under the senior secured credit facility currently bear interest at a base rate equaling the prime rate plus an applicable margin of 3.50%. The Amended and Restated Credit Agreement also contains letter of credit fees equal to an applicable margin of 5.00% multiplied by the aggregate amount available to be drawn on the letters of credit, and a 0.15% fronting fee payable to the administrative agent. In addition, we incur a commitment fee on the unused portion of the senior secured credit facility at a rate of 1.00% per annum. Borrowings on the line of credit are collateralized by all of our unsecured assets.

 

Our Amended and Restated Credit Agreement requires us to maintain certain minimum financial ratios and contains certain restrictive provisions, including among others, restrictions on making loans, investments and advances, incurring additional indebtedness, guaranteeing indebtedness, creating liens, and selling or assigning stock. As of and for the twelve months ended September 30, 2016, we are in compliance with respect to all covenants contained in the credit agreement.

 

On March 17, 2016, we entered into the Fourth Amendment of our Amended and Restated Credit Agreement. The Fourth Amendment amended the definition of change of control in the Amended and Restated Credit Agreement to permit Royal to purchase the membership interests of our general partner. The Fourth Amendment reduced the borrowing capacity under the credit facility to a maximum of $80 million and reduced the amount available for letters of credit to $30 million. The Fourth Amendment eliminated the option to borrow funds utilizing the LIBOR rate plus an applicable margin and established the borrowing rate for all borrowings under the facility to be based upon the current PRIME rate plus an applicable margin of 3.50%. The Fourth Amendment eliminated the capability to make Swing Loans under the facility and eliminated our ability to pay distributions to our common or subordinated unitholders. The Fourth Amendment altered the maximum leverage ratio, calculated as of the end of the most recent month, on a trailing twelve-month basis, to 6.75 to 1.00. The leverage ratio shall be reduced by 0.50 to 1.00 for every $10 million of net cash proceeds, in the aggregate, received by us after the date of the Fourth Amendment from a liquidity event; provided, however, that in no event shall the maximum permitted leverage ratio be reduced below 3.00 to 1.00. A liquidity event is defined in the Fourth Amendment as the issuance of any equity by us on or after the Fourth Amendment effective date (other than the Royal equity contribution discussed above), or the disposition of any assets by us. The Fourth Amendment required us to maintain minimum liquidity of $5 million and minimum EBITDA (as defined in the credit agreement), calculated as of the end of the most recent month, on a trailing twelve month basis, of $8 million. The Fourth Amendment limited the amount of our capital expenditures to $15 million, calculated as of end of the most recent month, on a trailing twelve-month basis. The Fourth Amendment required us to provide monthly financial statements and a weekly rolling thirteen-week cash flow forecast to the Administrative Agent.

 

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On May 13, 2016, we entered into the Fifth Amendment of our Amended and Restated Credit Agreement that extended the term to July 31, 2017. Per the Fifth Amendment, the credit facility will be automatically extended to December 31, 2017 if revolving credit commitments are reduced to $55 million or less on or before July 31, 2017. The Fifth Amendment immediately reduced the revolving credit commitments under the credit facility to a maximum of $75 million and maintained the amount available for letters of credit at $30 million. The Fifth Amendment further reduced the revolving credit commitments over time on a dollar-for-dollar basis in amounts equal to each of the following: (i) the face amount of any letter of credit that expires or whose face amount is reduced by any such dollar amount, (ii) the net proceeds received from any asset sales, (iii) the Royal scheduled capital contributions (as outline below), (iv) the net proceeds from the issuance of any equity by us up to $20.0 million (other than equity issued in exchange for any Royal contribution as outlined in the Securities Purchase Agreement or the Royal scheduled capital contributions to us as outlined below), and (v) the proceeds from the incurrence of any subordinated debt. The first $11 million of proceeds received from any equity issued by us described in clause (iv) above shall also satisfy the Royal scheduled capital contributions as outlined below. The Fifth Amendment requires Royal to contribute $2 million each quarter beginning September 30, 2016 through September 30, 2017 and $1 million on December 1, 2017, for a total of $11 million. The Fifth Amendment further reduces the revolving credit commitments as follows:

 

Date of Reduction   Reduction Amount
September 30, 2016   The lesser of (i) $2 million or (ii) the positive difference (if any) of $2 million minus the proceeds from the issuance of any of our equity (excluding any Royal equity contributions)
     
December 31, 2016   The lesser of (i) $2 million or (ii) the positive difference (if any) of $4 million minus the proceeds from the issuance of any of our equity (excluding any Royal equity contributions)
     
March 31, 2017   The lesser of (i) $2 million or (ii) the positive difference (if any) of $6 million minus the proceeds from the issuance of any of our equity (excluding any Royal equity contributions)
     
June 30, 2017   The lesser of (i) $2 million or (ii) the positive difference (if any) of $8 million minus the proceeds from the issuance of any of our equity (excluding any Royal equity contributions)
     
September 30, 2017   The lesser of (i) $2 million or (ii) the positive difference (if any) of $10 million minus the proceeds from the issuance of any of our equity (excluding any Royal equity contributions)
     
December 1, 2017   The lesser of (i) $1 million or (ii) the positive difference (if any) of $11 million minus the proceeds from the issuance of any of our equity (excluding any Royal equity contributions)

 

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The Fifth Amendment requires that on or before March 31, 2017, we shall have solicited bids for the potential sale of certain non-core assets, satisfactory to the administrative agent, and provided the administrative agent, and any other lender upon its request, with a description of the solicitation process, interested parties and any potential bids. The Fifth Amendment limits any payments by us to our general partner to: (i) the usual and customary payroll and benefits of the our management team so long as our management team remains employees of our general partner, (2) the usual and customary board fees of our general partner, and (3) the usual and customary general and administrative costs and expenses of our general partner incurred in connection with the operation of its business in an amount not to exceed $0.3 million per fiscal year. The Fifth Amendment limits asset sales to a maximum of $5 million unless we receive consent from the lenders. The Fifth Amendment alters the maximum leverage ratio, calculated as of the end of the most recent month, on a trailing twelve-month basis, as follows:

 

Period   Ratio
For the month ending April 30, 2016, through the month ending May 31, 2016   7.50 to 1.00
     
For the month ending June 30, 2016, through the month ending August 31, 2016   7.25 to 1.00
     
For the month ending September 30, 2016, through the month ending November 30, 2016   7.00 to 1.00
     
For the month ending December 31, 2016, through the month ending March 31, 2017   6.75 to 1.00
     
For the month ending April 30, 2017, through the month ending June 30, 2017   6.25 to 1.00
     
For the month ending July 31, 2017, through the month ending November 30, 2017   6.0 to 1.00
     
For the month ending December 31, 2017   5.50 to 1.00

 

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The leverage ratios above shall be reduced by 0.50 to 1.00 for every $10 million of aggregate proceeds received by us from: (i) the issuance of our equity (excluding any Royal capital contributions) and/or (ii) the proceeds received from the sale of assets, provided that the leverage ratio shall not be reduced below 3.50 to 1.00. The Fifth Amendment removes the $5.0 million minimum liquidity requirement and requires us to have any deposit, securities or investment accounts with a member of the lending group.

 

In July 2016, we entered into the Sixth Amendment of our amended and restated senior secured credit facility that permitted the sale of Elk Horn that was discussed earlier. The Sixth Amendment reduced the maximum commitment amount allowed under the credit facility based on the initial cash proceeds of $10.5 million that were received for the Elk Horn sale. The Sixth Amendment further reduces the maximum commitment amount allowed under the credit facility for the additional $1.5 million to be received from the Elk Horn sale by $375,000 each quarterly period beginning September 30, 2016 through June 30, 2017.

 

At September 30, 2016, the Operating Company had borrowings outstanding (excluding letters of credit) of $30.4 million at a variable interest rate of PRIME plus 3.50% (7.00% at September 30, 2016). In addition, the Operating Company had outstanding letters of credit of approximately $27.8 million at a fixed interest rate of 5.00% at September 30, 2016. Based upon a maximum borrowing capacity of 6.50 times a trailing twelve-month EBITDA calculation (as defined in the credit agreement), the Operating Company had available borrowing capacity of approximately $4.0 million at September 30, 2016. During the three months ended September 30, 2016, we had average borrowings outstanding of approximately $37.7 million under our credit agreement.

 

Off-Balance Sheet Arrangements

 

In the normal course of business, we are a party to certain off-balance sheet arrangements. These arrangements include guarantees and financial instruments with off-balance sheet risk, such as bank letters of credit and surety bonds. No liabilities related to these arrangements are reflected in our consolidated balance sheet, and we do not expect any material adverse effects on our financial condition, results of operations or cash flows to result from these off-balance sheet arrangements.

 

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Federal and state laws require us to secure certain long-term obligations related to mine closure and reclamation costs. We typically secure these obligations by using surety bonds, an off-balance sheet instrument. The use of surety bonds is less expensive for us than the alternative of posting a 100% cash bond or a bank letter of credit, either of which would require a greater use of our amended and restated credit agreement. We then use bank letters of credit to secure our surety bonding obligations as a lower cost alternative than securing those bonds with a committed bonding facility pursuant to which we are required to provide bank letters of credit in an amount of up to 25% of the aggregate bond liability. To the extent that surety bonds become unavailable, we would seek to secure our reclamation obligations with letters of credit, cash deposits or other suitable forms of collateral.

 

As of September 30, 2016, we had $27.8 million in letters of credit outstanding, of which $22.4 million served as collateral for surety bonds.

 

Critical Accounting Policies and Estimates

 

Our financial statements are prepared in accordance with accounting principles that are generally accepted in the United States. The preparation of these financial statements requires management to make estimates and judgments that affect the reported amount of assets, liabilities, revenues and expenses as well as the disclosure of contingent assets and liabilities. Management evaluates its estimates and judgments on an on-going basis. Management bases its estimates and judgments on historical experience and other factors that are believed to be reasonable under the circumstances. Nevertheless, actual results may differ from the estimates used and judgments made.

 

The accounting policies and estimates that we have adopted and followed in the preparation of our consolidated financial statements are fully described in our Annual Report on Form 10-K for the year ended December 31, 2015. There have been no significant changes in these policies and estimates as of September 30, 2016.

 

Recent Accounting Pronouncements

 

Refer to Part-I— Item 1. Note 2 of the notes to the unaudited condensed consolidated financial statements for a discussion of recent accounting pronouncements, which is incorporated herein by reference. There are no known future impacts or material changes or trends of new accounting guidance beyond the disclosures provided in Note 2.

 

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Item 4. Controls and Procedures

 

Evaluation of Disclosure Controls and Procedures. As required by Rule 13a-15(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), we have evaluated, under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of the end of the period covered by this Form 10-Q. Our disclosure controls and procedures are designed to provide reasonable assurance that the information required to be disclosed by us in reports that we file under the Exchange Act is accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure and is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC. Based upon the evaluation, our principal executive officer and principal financial officer have concluded that our disclosure controls and procedures were effective as of September 30, 2016 at the reasonable assurance level.

 

Changes in Internal Control over Financial Reporting. There was no change in our internal control over financial reporting that occurred during the quarter ended September 30, 2016, that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

PART II—Other Information

 

Item 1. Legal Proceedings.

 

We may, from time to time, be involved in various legal proceedings and claims arising out of our operations in the normal course of business. While many of these matters involve inherent uncertainty, we do not believe that we are a party to any legal proceedings or claims that will have a material adverse impact on our business, financial condition or results of operations.

 

Item 1A. Risk Factors.

 

In addition to the other information set forth in this Report, you should carefully consider the risks under the heading “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2015, which risks could materially affect our business, financial condition or future results. There has been no material change in our risk factors from those described in the Annual Report on Form 10-K for the year ended December 31, 2015. These risks are not the only risks that we face. Additional risks and uncertainties not currently known to us or that we currently deem to be immaterial also may materially adversely affect our business, financial condition or results of operations.

 

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.

 

None.

 

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Item 3. Defaults upon Senior Securities.

 

None.

 

Item 4. Mine Safety Disclosure

 

Information concerning mine safety violations or other regulatory matters required by Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act and Item 104 of Regulation S-K for the three months ended September 30, 2016 is included in Exhibit 95.1 to this report.

 

Item 5. Other Information.

 

None.

 

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Item 6.            Exhibits.
     

 

Exhibit Number   Description
     
2.1  

Membership Transfer Agreement between Rhino Eastern JV Holding Company LLC, Rhino Energy WV LLC, and Rhino Eastern LLC dated December 31, 2014, incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K (File No. 001-34892) filed on January 7, 2015 

     
2.2*  

Equity Exchange Agreement, dated as of September 30, 2016, by and among Rhino Resource Holdings LLC, Rhino Resource Partners LP, Rhino GP LLC and Royal Energy Resources, Inc. 

     
2.3*  

Membership Interest Purchase Agreement, dated August 22, 2016, by and among Rhino Energy LLC and Elk Horn Coal Acquisition LLC 

     
3.1  

Certificate of Limited Partnership of Rhino Resource Partners LP, incorporated by reference to Exhibit 3.1 to the Registration Statement on Form S-1 (File No. 333-166550) filed on May 5, 2010 

     
3.2  

Third Amended and Restated Agreement of Limited Partnership of Rhino Resource Partners LP, dated as of December 30, 2015, incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-34892) filed on December 30, 2015

 

4.1  

Registration Rights Agreement, dated as of October 5, 2010, by and between Rhino Resource Partners LP and Rhino Energy Holdings LLC, incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-34892) filed on October 8, 2010 

     
4.2   Registration Rights Agreement, dated as of March 21, 2016, by and between Rhino Resource Partners LP and Royal Energy Resources, Inc., incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-34892) filed on March 23, 2016
     
10.1  

Fifth Amendment to Amended and Restated Credit Agreement, dated May 13, 2016 by and among Rhino Energy LLC, PNC Bank, National Association, as Administrative Agent, and the guarantors and lenders party thereto, incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K (File No. 001-34892), filed on May 16, 2016

     
10.2*  

Sixth Amendment and Consent to Amended and Restated Credit Agreement, dated as of July 19, 2016, by and among Rhino Energy LLC, PNC Bank, National Association, as Administrative Agent, and the guarantors and lenders party thereto

     
10.3*  

Amended and Restated Employment Agreement of Richard Boone, effective as of September 1, 2016

 

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Exhibit Number   Description
     
10.4*  

Amended and Restated Employment Agreement of W. Scott Morris, effective as of September 1, 2016 

     
10.5*  

Letter Agreement between Rhino Resource Partners LP and Joseph E. Funk, dated as of August 22, 2016 

     
31.1*  

Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 7241) 

     
31.2*  

Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 7241)  

     
32.1*  

Certification of Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 1350)

 

32.2*  

Certification of Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 1350)

 

95.1*  

Mine Health and Safety Disclosure pursuant to §1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act for the three months ended September 30, 2016  

     
101.INS*  

XBRL Instance Document

 

101.SCH*  

XBRL Taxonomy Extension Schema Document

 

101.CAL*  

XBRL Taxonomy Extension Calculation Linkbase Document

 

101.DEF*  

XBRL Taxonomy Definition Linkbase Document

 

101.LAB*  

XBRL Taxonomy Extension Label Linkbase Document

 

101.PRE*   XBRL Taxonomy Extension Presentation Linkbase Document

 

The exhibits marked with the asterisk symbol (*) are filed or furnished (in the case of Exhibits 32.1 and 32.2) with this Form 10-Q.

   

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

  RHINO RESOURCE PARTNERS LP
     
  By: Rhino GP LLC, its General Partner
     
Date: November 10, 2016 By: /s/ Joseph E. Fun
    Joseph E. Funk
    Chief Executive Officer
    (Principal Executive Officer)
     
Date: November 10, 2016 By: /s/ W. Scott Morris
    W. Scott Morris
    Vice President and Chief Financial Officer
    (Principal Financial Officer)

 

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EQUITY EXCHANGE AGREEMENT

 

This Equity Exchange Agreement (this “ Agreement ”), dated as of September 30, 2016, is made by and among Rhino Resource Partners Holdings LLC, a Delaware limited liability company (“ Holdings ”), Rhino Resource Partners, LP, a Delaware limited partnership (“ Rhino ”), Rhino GP LLC, a Delaware limited liability company (“ Rhino GP ”) and Royal Energy Resources, Inc., a Delaware corporation (“ Royal ”).

 

RECITALS:

 

WHEREAS, each of Yorktown Energy Partners VI, L.P., a Delaware limited partnership (“ Yorktown VI ”), Yorktown Energy Partners VII, L.P., a Delaware limited partnership (“ Yorktown VII ”), Yorktown Energy Partners VIII, L.P., a Delaware limited partnership (“ Yorktown VIII ”), Yorktown Energy Partners IX, L.P., a Delaware limited partnership (“ Yorktown IX ” and, together with Yorktown VI, Yorktown VII, Yorktown VIII, collectively the “ Yorktown Funds ”) owns the number of shares of common stock, par value $0.01 per share, of Armstrong Energy, Inc., a Delaware corporation (“ Armstrong ”), set forth next to each Yorktown Fund’s name below (such shares of common stock of Armstrong being referred to herein as the “ Exchange Shares ”):

 

Yorktown VI     832,500  
         
Yorktown VII     11,562,500  
         
Yorktown VIII     6,012,500  
         
Yorktown IX     2,775,000  

 

WHEREAS, the Yorktown Funds will contribute the Exchange Shares to Holdings prior to the Closing (as defined below);

 

WHEREAS, the Yorktown Funds have consented to the transactions contemplated by this Agreement, in accordance with the Stockholders’ Agreement (as defined below);

 

WHEREAS, Holdings desires to contribute to Rhino, and Rhino desires to acquire from Holdings, the Exchange Shares, in exchange for Rhino issuing 10,000,000 Common Units (the “ New Rhino LP Units ”) on the Closing Date, on the terms and conditions set forth herein;

 

WHEREAS, as additional consideration for the Exchange Shares, Royal will transfer to Holdings a 50.0% Membership Interest (as defined in the Company Agreement) in Rhino GP (the “ Rhino GP LLC Interest ” and together with the New Rhino LP Units, the “ New Rhino Units ”) on the Closing Date on the terms and conditions set forth herein; and

 

WHEREAS, for U.S. federal income tax purposes, the Exchange is intended to constitute a nontaxable transfer within the meaning of Section 721 of the Code.

 

 
     

 

SECTION I.
DEFINITIONS

 

Unless the context otherwise requires, the terms defined in this Section I will have the meanings herein specified for all purposes of this Agreement, applicable to both the singular and plural forms of any of the terms herein defined.

 

1.1 Accredited Investor ” has the meaning given to such term in Rule 501(a) of Regulation D, promulgated under the Securities Act.

 

1.2 Affiliate ” of any Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For purposes of this definition, “control” (including the terms “controlled by,” “under common control with” and correlative terms) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by Contract or otherwise.

 

1.3 Agreement ” means this Equity Exchange Agreement, including all schedules and exhibits attached hereto, as this Equity Exchange Agreement may be from time to time amended, modified or supplemented.

 

1.4 Applicable Law ” means, with respect to any Person, any U.S. or non-U.S. federal, national, state, provincial, local, municipal, international, multinational or other law (including common law), constitution, statute, code, ordinance, rule, regulation or treaty applicable to such Person.

 

1.5 Armstrong ” has the meaning set forth in the Recitals.

 

1.6 Capital Stock ” means, with respect to: (i) any corporation, any share, or any depositary receipt or other certificate representing any share, of an equity ownership interest in that corporation; and (ii) any other entity, any share, membership or other percentage interest, unit of participation or other equivalent (however designated) of an equity interest in that entity.

 

1.7 Closing ” has the meaning set forth in Section 3.1 .

 

1.8 Closing Date ” has the meaning set forth in Section 3.1 .

 

1.9 Code ” means the Internal Revenue Code of 1986, as amended.

 

1.10 Commission ” means the Securities and Exchange Commission or any other federal agency then administering the Securities Act.

 

1.11 Common Units ” means common units representing limited partnership interests in Rhino.

 

1.12 Company Agreement ” means that certain Second Amended and Restated Limited Liability Agreement of Rhino GP LLC dated as of November 15, 2013.

 

 

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Equity Exchange Agreement
     

 

1.13 Contract ” means, with respect to any Person, any written, oral or other agreement, understanding, commitment, contract, instrument, note, mortgage, bond, loan, indenture, credit agreement, guaranty, option, indemnity, deed, assignment, certificate, insurance policy, lease, license or arrangement of any kind or nature to which such Person is a party, by which it or its assets are bound or subject or under which it has any current or future Liability, and any amendments, supplements or modifications thereto.

 

1.14 Credit Facility ” means that certain $300,000,000 Amended and Restated Revolving Credit Facility pursuant to that certain Amended and Restated Credit Agreement by and among Rhino, the Lenders party thereto, the guarantors party thereto and PNC Bank, National Association, as administrative agent for the Lenders party thereto, as amended by the First Amendment thereto dated as of April 18, 2013, the Second Amendment thereto dated as of March 19, 2014, the Third Amendment thereto dated as of April 28, 2015, the Fourth Amendment thereto dated as of March 17, 2016 and the Fifth Amendment thereto dated as of May 13, 2016, as may be further amended.

 

1.15 Encumbrances ” means liens, charges, pledges, options, mortgages, deeds of trust, security interests, claims, restrictions (whether on voting, sale, transfer, disposition, or otherwise), easements, and other encumbrances of every type and description, whether imposed by law, agreement, understanding, or otherwise.

 

1.16 ERISA ” means the Employee Retirement Income Security Act of 1974 (or any successor legislation thereto), as amended from time to time and any regulations promulgated thereunder.

 

1.17 ERISA Affiliate ” means, with respect to a Person, any entity which has ever been considered a single employer with such Person under Section 4001(b) of ERISA or Section 414(b), (c), (m) or (o) of the Code.

 

1.18 Exchange ” has the meaning set forth in Section 2.1 .

 

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

 

1.20 Exchange Shares ” has the meaning set forth in the Recitals.

 

1.21 Expenses ” shall mean any expenses incurred in connection with a Proceeding, including, without limitation, all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or preparing to be a witness in a Proceeding.

 

1.22 Financial Statements ” has the meaning set forth in Section 5.8(a) .

 

1.23 GAAP ” means, with respect to any Person, United States generally accepted accounting principles applied on a consistent basis with such Person’s past practices.

 

1.24 Governmental Approval ” has the meaning set forth in Section 5.5 .

 

 

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Equity Exchange Agreement
     

 

1.25 Governmental Authority ” means any federal or national, state or provincial, municipal or local government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, political subdivision, commission, court, tribunal, official, arbitrator or arbitral body, in each case whether U.S. or non-U.S.

 

1.26 Holdings ” has the meaning set forth in the Preamble.

 

1.27 Holdings Related Parties ” has the meaning set forth in Section 6.1 .

 

1.28 Indemnified Party ” has the meaning set forth in Section 6.3(a) .

 

1.29 Indemnifying Party ” has the meaning set forth in Section 6.3(a) .

 

1.30 Liabilities ” means all indebtedness, claims, legal proceedings, obligations, Taxes, duties, warranties or liabilities, including strict liability, of any nature (including any undisclosed, unfixed, unknown, unliquidated, unsecured, unmatured, unaccrued, unasserted, contingent, conditional, unvested, inchoate, implied, vicarious, joint, several or secondary liabilities), regardless of whether any such indebtedness, claims, legal proceedings, obligations, duties, warranties or liabilities would be required to be disclosed on a balance sheet prepared in accordance with GAAP or is known as of the Closing.

 

1.31 Limited Partner Approval ” means the approval of a majority of the limited partners of Rhino.

 

1.32 Loss ” has the meaning set forth in Section 6.1 .

 

1.33 Rhino GP LLC Interest ” has the meaning set forth in the Recitals.

 

1.34 New Rhino LP Units ” has the meaning set forth in the Recitals.

 

1.35 New Rhino Units ” has the meaning set forth in the Recitals.

 

1.36 Order ” means any award, decision, injunction, judgment, order, ruling, subpoena, or verdict entered, issued, made, or rendered by any Governmental Authority.

 

1.37 Organization State ” means, as applied to (i) any corporation, its state or other jurisdiction of incorporation, (ii) any limited liability company or limited partnership, the state or other jurisdiction under whose laws it is formed, organized and existing in that legal form, and (iii) any other entity, the state or other jurisdiction whose laws govern that entity’s internal affairs.

 

1.38 Organizational Documents ” means (a) the articles or certificate of incorporation and the by-laws or code of regulations of a corporation; (b) the partnership agreement and any statement of partnership of a general partnership; (c) the limited partnership agreement and the certificate of limited partnership of a limited partnership; (d) the articles or certificate of formation and operating agreement of a limited liability company; (e) any other document performing a similar function to the documents specified in clauses (a), (b), (c) and (d) adopted or filed in connection with the creation, formation or organization of a Person; and (f) any and all amendments to any of the foregoing.

 

 

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Equity Exchange Agreement
     

 

1.39 Partnership Assets ” means all assets and properties of every kind, character and description, whether tangible, intangible, real, personal or mixed, which are owned, used or held for use by the Partnership Entities as of the date hereof or as of Closing.

 

1.40 Partnership Business ” means all business activities of the Partnership Entities as conducted on the date hereof.

 

1.41 Partnership Entities ” means Rhino, Rhino GP and the Subsidiaries of Rhino.

 

1.42 Partnership Facilities ” means the facilities of the Partnership Entities located on any real property currently or formerly owned and/or operated and/or leased by the Partnership Entities or any predecessor, and all improvements thereon.

 

1.43 Partnership Parties ” means Rhino and Rhino GP.

 

1.44 Partnership Plans ” has the meaning set forth in Section 5.20(a) .

 

1.45 Permitted Encumbrances ” with respect to a party, means (a) the Encumbrances permitted to be incurred under the Credit Facility as in effect on the date hereof (b) liens for Taxes not yet due and payable, (c) statutory liens (including materialmen’s, mechanic’s, repairmen’s, landlord’s and other similar liens) arising in connection with the ordinary course of business securing payments not yet due and payable or, if due and payable, the validity of which is being contested in good faith by appropriate legal proceedings and for which adequate reserves have been set aside, (d) liens of landlords under lease agreements with respect to property located on the leased premises, and (e) any and all arrearages owed by Rhino for minimum quarterly distributions to unitholders.

 

1.46 Person ” means all natural persons, corporations, business trusts, associations, companies, partnerships, limited liability companies, joint ventures and other entities, governments, agencies and political subdivisions.

 

1.47 Proceeding ” means any action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative or investigative) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Authority.

 

1.48 Representatives ” of any Person means the officers, directors, managers, shareholders, members and other equityholders, employees, partners, independent contractors, consultants, advisors, agents, counsel, accountants, investment bankers and other representatives of such Person.

 

1.49 Rhino ” has the meaning set forth in the Preamble.

 

1.50 Rhino Board ” has the meaning set forth in Section 7.3(f).

 

 

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Equity Exchange Agreement
     

 

1.51 Rhino GP ” has the meaning set forth in the Preamble.

 

1.52 Rhino GP Units ” means notional units used solely to calculate the General Partner’s Percentage Interest (as defined in the Rhino LP Agreement).

 

1.53 Rhino Group ” means, collectively, Rhino, Rhino GP and Rhino’s Subsidiaries.

 

1.54 Rhino LP Agreement ” means that certain Third Amended and Restated Agreement of Limited Partnership of Rhino, dated as of December 30, 2015.

 

1.55 Rhino LP Units ” means the units representing common limited partnership interests in the Partnership and having the rights and obligations specified with respect to the Rhino LP Units in the Rhino LP Agreement.

 

1.56 Rhino Units ” means the Rhino GP Units and the Rhino LP Units.

 

1.57 Rhino Related Parties ” has the meaning set forth in Section 6.2 .

 

1.58 SEC Filings ” has the meaning set forth in Section 5.7 .

 

1.59 Securities Act ” means the Securities Act of 1933, as amended, or any similar federal statute, and the rules and regulations of the Commission thereunder, all as the same will be in effect at the time.

 

1.60 Stockholders’ Agreement ” means that certain Stockholders’ Agreement dated May 12, 2015 by and among Armstrong, the John Hord Armstrong, III Trust Dated June 13, 1994, The Martin D. and Carole J. Wilson Living Trust Dated 09/07/2013, J. Richard Gist, Kenneth E. Allen, Adam D. Anderson, Brian G. Landry Jeffrey F. Winnick, Yorktown VI, Yorktown VII, Yorktown VIII, Yorktown IX, David R. Cobb, James H. Brandi, LucyB Trust, Danielle Weisman, John G. Brim, Franklin W. Hobbs IV, Hutchinson Brothers, LLC a Nebraska limited liability company, and John H. Stites, III.

 

1.61 Subsidiary ” means with respect to a Person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions are owned, directly or indirectly, by such Person.

 

1.62 Tax ” and “ Taxes ” means any federal, state, local and foreign taxes, charges, fees, levies or other similar assessments or Liabilities (including, income, receipts, gross receipts, ad valorem, value added, excise, real or personal property, sales, occupation, service, stamp, transfer, registration, natural resources, severance, escheat or unclaimed property premium, windfall or excess profits, environmental, customs, duties, use, licensing, withholding, employment, social security, unemployment, disability, payroll, share, capital, surplus, alternative, minimum, add-on minimum, estimated, franchise or any other taxes, charges, fees, levies or other similar assessments or liabilities of any kind whatsoever), whether or not disputed, and whether computed on a separate, consolidated, unitary or combined basis or in any other manner, and includes any interest, fines, penalties, assessments, deficiencies or additions thereto.

 

 

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1.63 Tax Return ” means any return, declaration, report, claim for refund, information return or statement or other document relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

 

1.64 Third Party Claim ” has the meaning set forth in Section 6.3(a) .

 

1.65 Transaction Documents ” means, collectively, all agreements, instruments and other documents to be executed and delivered in connection with the transactions contemplated by this Agreement.

 

1.66 Yorktown ” has the meaning set forth in the Recitals.

 

1.67 Yorktown VI ” has the meaning set forth in the Recitals.

 

1.68 Yorktown VII ” has the meaning set forth in the Recitals.

 

1.69 Yorktown VIII ” has the meaning set forth in the Recitals.

 

1.70 Yorktown IX ” has the meaning set forth in the Recitals.

 

SECTION II.
EXCHANGE OF SHARES AND CONSIDERATION

 

2.1 Exchange of Shares; Consideration . At the Closing, (a) Holdings shall transfer the Exchange Shares to Rhino and (b) in consideration therefor, (i) Rhino shall issue to Holdings the New Rhino LP Units and (ii) Rhino GP shall issue to Holdings the Rhino GP LLC Interest (collectively, the “ Exchange ”).

 

2.2 Fair Market Value of Rhino GP LLC Interest . Royal acknowledges and agrees that the fair market value of the Rhino GP LLC Interest is zero and, consequently, such Rhino GP LLC Interest are issuable for no consideration and Rhino GP shall receive no consideration therefor.

 

SECTION III.
CLOSING DATE

 

3.1 Closing Date . The closing of the Exchange (the “ Closing ”) shall take place at the offices of Thompson & Knight LLP, 1722 Routh Street, Suite 1500, Dallas, Texas 75201 at 10:00 a.m., local time, on the second business day after the satisfaction or waiver of the conditions set forth in Section VII (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), or at such other place, date and time as the parties hereto shall agree. The date on which the Closing occurs is referred to as the “ Closing Date ”.

 

 

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SECTION IV.
REPRESENTATIONS AND WARRANTIES OF HOLDINGS

 

Holdings hereby represents and warrants to Rhino that as of the date hereof and as of the Closing; provided, however, that any such representation and warranty of Holdings relating to Armstrong and/or its Subsidiaries shall be to Holdings’ actual knowledge, with no duty of investigation or inquiry, only:

 

4.1 Organization; Existence; Authority . Holdings is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. Holdings has the right, power, authority and capacity to execute and deliver this Agreement and each of the Transaction Documents to which it is a party, to consummate the transactions contemplated by this Agreement and each of the Transaction Documents to which it is a party, and to perform its obligations under this Agreement and each of the Transaction Documents to which it is a party. This Agreement has been, and each of the Transaction Documents to which Holdings is a party will be, duly and validly executed and delivered by Holdings. Assuming this Agreement and the Transaction Documents have been duly and validly authorized, executed and delivered by the parties thereto other than Holdings, this Agreement is, and each of the Transaction Documents to which Holdings is a party have been, duly executed and delivered by Holdings and constitutes the legal, valid and binding obligation of Holdings, enforceable against Holdings in accordance with their respective terms, except as such enforcement is limited by general equitable principles, or by bankruptcy, insolvency and other similar Laws affecting the enforcement of creditors rights generally.

 

4.2 No Conflict . Neither the execution nor delivery by Holdings of this Agreement or any Transaction Document to which Holdings is a party, nor the consummation or performance by Holdings of the transactions contemplated hereby or thereby will, directly or indirectly, (a) contravene, conflict with, constitute a default (or an event or condition which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, any agreement or instrument to which Holdings is a party or by which the properties or assets of Holdings are bound; or (b) contravene, conflict with, or result in a violation of, any Law or Order to which Holdings, or any of its properties or assets, may be subject.

 

4.3 Litigation . There is no pending Proceeding against Holdings that challenges, or may have the effect of preventing, delaying or making illegal, or otherwise interfering with, any of the transactions contemplated by this Agreement and, to the knowledge of Holdings, no such Proceeding has been threatened, and no event or circumstance exists that is reasonably likely to give rise to or serve as a basis for the commencement of any such Proceeding.

 

4.4 No Brokers or Finders . No Person has, or as a result of the transactions contemplated herein will have, any right or valid claim against Holdings or the Yorktown Funds for any commission, fee or other compensation as a finder or broker, or in any similar capacity.

 

 

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4.5 Ownership of Exchange Shares .

 

(a) As of the date hereof, each of the Yorktown Funds is the record and beneficial owner of, and has good and valid title to the Exchange Shares set forth opposite its name in the Recitals, free and clear of any and all Encumbrances, other than restrictions under the Organizational Documents of Armstrong or applicable securities law. Except for the Stockholders’ Agreement, there are no options, rights, voting trusts, stockholder agreements or any other contracts or understandings to which Holdings is a party or by which Holdings or the Exchange Shares, are bound with respect to the issuance, sale, transfer, voting or registration thereof.

 

(b) As of the Closing, Holdings will own, of record and beneficially, and will have good and valid title to and the right to transfer to Rhino pursuant to this Agreement, the Exchange Shares, free and clear of any and all Encumbrances, other than restrictions under the Organizational Documents of Armstrong or applicable securities law. Except for the Stockholders’ Agreement, there will be no options, rights, voting trusts, stockholder agreements or any other contracts or understandings to which Holdings will be a party or by which Holdings or the Exchange Shares, will be bound with respect to the issuance, sale, transfer, voting or registration thereof. At the Closing Date, Rhino will acquire good, valid and marketable title to the Exchange Shares, free and clear of any and all Encumbrances.

 

4.6 Acknowledgment . Holdings understands and agrees that the New Rhino Units to be issued pursuant to this Agreement have not been registered under the Securities Act or the securities laws of any state of the United States and that the issuance of the New Rhino Units is being effected in reliance upon an exemption from registration under the Securities Act under Section 4(a)(2) of the Securities Act for transactions by an issuer not involving a public offering.

 

4.7 Status . Holdings is an Accredited Investor.

 

4.8 Reliance . Holdings understands that the New Rhino Units are being offered and sold to Holdings in reliance upon the truth and accuracy of its representations and warranties set forth in this Section IV so that Rhino may determine the applicability and availability of the exemptions from registration of the New Rhino Units on which Rhino is relying.

 

4.9 Governmental Approvals . No consent, approval, order, or authorization of, or declaration, filing, or registration with, any Governmental Authority (“Governmental Approval”) is required to be obtained or made by Holdings or the Yorktown Funds in connection with the execution, delivery, or performance of this Agreement or any Transaction Document to which it is a party or the consummation by it of the transactions contemplated hereby, other than (i) compliance with any applicable state or federal securities law, and (ii) filing of any necessary ownership and control changes with applicable state and federal mine permitting and mine safety authorities.

 

4.10 Permitting . None of Armstrong, Holdings, or the Yorktown Funds has been subject to any bond forfeiture, permit suspension or revocation or similar effort or Proceeding instituted by any Governmental Authority, and is not, and has not been “permit blocked” on the Applicant Violator System.

 

 

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4.11 Investigation . Holdings and the Yorktown Funds have conducted their own independent investigation, review and analysis of the Partnership Entities and their assets and business. Holdings and the Yorktown Funds acknowledge and agree that in making their respective decisions to enter into this Agreement and to consummate the transactions contemplated hereby, (a) Holdings and the Yorktown Funds have relied solely upon their own investigation (including review of the SEC Filings) and the express representations and warranties of the Partnership Entities set forth in this Agreement; and (b) no Partnership Entity nor any other Person has made any representation or warranty as to any Partnership Entity or its business or its assets, except as expressly set forth in Agreemen t .

 

SECTION V.
REPRESENTATIONS AND WARRANTIES OF RHINO AND RHINO GP

 

Rhino and Rhino GP represent and warrant, and to the extent the representations and warranties are with respect to Royal, Royal represents and warrants to Holdings that as of the date hereof and as of the Closing:

 

5.1 Corporate Organization . Schedule 5.1 sets forth the legal name of each of the Partnership Entities. Rhino is a limited partnership and each of the other Partnership Entities is a limited liability company duly organized or formed, validly existing and in good standing under the laws of the State of Delaware. Each of the Partnership Entities has full power and authority to own, lease or otherwise hold and operate its properties and assets and to carry on its business as presently conducted, and in the case of Rhino GP, to act as general partner of Rhino, in each case in all material respects as described in the SEC Filings. Each of the Partnership Entities is duly qualified and in good standing to do business as a foreign general partnership, limited partnership, limited liability company or corporation, as applicable, in each jurisdiction in which the conduct or nature of its business or the ownership, leasing, holding or operating of its properties makes such qualification necessary. Other than as set forth on Schedule 5.1 , each of the Partnership Entities (other than Rhino and Rhino GP) are wholly owned, directly or indirectly, by Rhino and Rhino GP.

 

5.2 Capitalization of the Partnership Entities .

 

(a) All of the outstanding equity interests in Rhino have been duly authorized and validly issued in accordance with the Rhino LP Agreement, are fully paid (to the extent required under the Rhino LP Agreement) and nonassessable, and, as of the respective dates of the SEC Filings and the Financial Statements, were issued and held as described therein. Rhino GP is the sole general partner of Rhino with a 0.6% general partner interest in Rhino. On the date hereof, the issued and outstanding limited partner interests of Rhino consist of 7,905,799 Common Units and 1,235,534 subordinated units of Rhino.

 

 

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(b) The New Rhino LP Units (and the limited partner interests represented thereby) and the Rhino GP LLC Interest to be issued to Holdings at the Closing, will be duly authorized in accordance with the Rhino LP Agreement and the Company Agreement, as applicable, and, when issued and delivered to Holdings pursuant to the Exchange in accordance with the terms hereof, will be validly issued, fully paid (to the extent required under the Rhino LP Agreement and the Company Agreement) and nonassessable and will be issued free and clear of any Encumbrance.

 

(c) No Encumbrance exists upon any outstanding share (or other percentage ownership interests) of Capital Stock of any Partnership Entity which Rhino directly or indirectly owns other than the Permitted Encumbrances. Except as set forth in Schedule 5.2(c) , Rhino does not own, of record or beneficially, directly or indirectly through any Person, and does not control, directly or indirectly through any Person or otherwise, any Capital Stock of any entity other than a Partnership Entity. All of the outstanding shares of Capital Stock of the Partnership Entities that are corporations or limited liability companies have been duly authorized and validly issued and are fully paid and nonassessable. All of the outstanding shares of Capital Stock of the Partnership Entities that are general or limited partnerships have been duly authorized and validly issued in accordance with such Partnership Entity’s partnership agreement and such Capital Stock has been fully paid for (to the extent required under such Partnership Entity’s partnership agreement) and is nonassessable.

 

(d) Except (i) as described in the SEC Filings and (ii) for the Rhino LP Units to be issued pursuant to this Agreement, there are no preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any interests in Rhino pursuant to the Rhino LP Agreement or any other agreement or instrument to which Rhino is a party or by which either of them may be bound. Neither the offering nor the sale of the New Rhino Units as contemplated by this Agreement gives rise to any rights for or relating to the issuance or registration of any of the Common Units or the Rhino GP LLC Units or other securities of Rhino or any other Partnership Entities, except pursuant to this Agreement, or such rights as have been waived or satisfied. Except (i) as set forth in the SEC Filings and (ii) pursuant to the Partnership Plans, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, Capital Stock of Rhino are outstanding.

 

(e) The New Rhino Units and Rhino GP LLC Interest when issued and delivered pursuant to the Exchange, will conform in all material respects to the description thereof contained in the Rhino LP Agreement and the Company Agreement, as applicable. Rhino has all requisite power and authority to issue, sell and deliver the New Rhino Units in accordance with and upon the terms and conditions set forth in this Agreement and the Rhino LP Agreement. Royal has all requisite power and authority to transfer, sell and deliver the Rhino GP LLC Interest in accordance with and upon the terms and conditions set forth in this Agreement and the Company Agreement. As of the Closing Date, all partnership and limited liability company action, as the case may be, required to be taken by Royal, Rhino and Rhino GP or any of their respective partners or members for the authorization, issuance, sale and delivery of the New Rhino LP Units and the Rhino GP LLC Interest shall have been validly taken, and no other authorization by any of such parties is required therefor.

 

 

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5.3 Authority Relative to This Agreement . Each of the Partnership Parties and Royal has full power and authority to execute, deliver and perform this Agreement and the Transaction Documents to which it is a party, and to consummate the Exchange. The execution, delivery and performance by the Partnership Parties and Royal of the Transaction Documents, and the consummation by them of the Exchange, have been duly authorized by all necessary action. This Agreement has been duly executed and delivered by the Partnership Parties and Royal and constitutes, and each of the Transaction Documents and each other agreement, instrument or document executed or to be executed by the Partnership Parties or Royal in connection with the Transaction has been, or when executed will be, duly executed and delivered by such Person and constitutes, or when executed and delivered will constitute, a valid and legally binding obligation of such Person enforceable against it in accordance with its terms, except that such enforceability may be limited by (a) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws affecting creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

5.4 Noncontravention . The execution, delivery, and performance by each Partnership Party and Royal of this Agreement and the Transaction Documents to which it is a party and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or result in a violation of the Organizational Documents of such Partnership Party or Royal, (ii) assuming the conditions to Closing referred to in Section 7.1 have been satisfied, conflict with or result in a violation of any provision of, or constitute (with or without the giving of notice or the passage of time or both) a default under, or give rise (with or without the giving of notice or the passage of time or both) to any right of termination, cancellation, or acceleration under, any bond, debenture, note, mortgage, indenture, lease, agreement, or other instrument or obligation to which such Partnership Party or Royal is a party or by which such Partnership Party or Royal or any of their respective properties may be bound, (iii) result in the creation or imposition of any Encumbrance upon the properties of such Partnership Party or Royal, or (iv) assuming compliance with the matters referred to in Section 5.6 , violate any Applicable Law binding upon such Partnership Party or Royal, except, in the case of clauses (ii), (iii), and (iv) above, for any such conflicts, violations, defaults, terminations, cancellations, accelerations, or Encumbrances which would not, individually or in the aggregate, have a material adverse effect on the business, assets, results of operations, or financial condition of such Partnership Party or Royal or on the ability of such Partnership Party or Royal to consummate the transactions contemplated hereby.

 

5.5 Governmental Approvals . No consent, approval, order, or authorization of, or declaration, filing, or registration with, any Governmental Authority (“Governmental Approval”) is required to be obtained or made the Partnership Parties in connection with the execution, delivery, or performance by the Partnership Parties of this Agreement or any Transaction Document to which it is a party or the consummation by it of the transactions contemplated hereby, other than (i) compliance with any applicable state or federal securities law (ii) filing of any necessary ownership and control changes with applicable state and federal mine permitting and mine safety authorities and (iii) such consents, approvals, Orders, or authorizations which, if not obtained, and such declarations, filings, or registrations which, if not made, would not, individually or in the aggregate, have a material adverse effect on the business, assets, results of operations, or financial condition of the Partnership Parties or on the ability of the Partnership Parties to consummate the transactions contemplated hereby.

 

 

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5.6 Title to Partnership Assets . As of the Closing, the Partnership Entities will have good and marketable title to, or valid leasehold interests in, all of the Partnership Assets, free and clear of all Encumbrances other than Permitted Encumbrances.

 

5.7 SEC Filings . Since January 1, 2015, Rhino has filed with the Commission all forms, reports, schedules, statements, and other documents required to be filed by it under the Securities Act, the Exchange Act, and the rules and regulations promulgated thereunder, and all other federal securities laws. All forms, reports, schedules, statements, and other documents (including all amendments thereto) filed by Rhino with the Commission since such date are herein collectively referred to as the “SEC Filings.” The SEC Filings, at the time filed, complied in all material respects with all applicable requirements of federal securities laws. None of the SEC Filings, including, without limitation, any financial statements or schedules included therein, at the time filed, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading. All material contracts of the Partnership have been included in the SEC Filings, except for those contracts not required to be filed pursuant to the rules and regulations of the Commission. Rhino shall deliver or make available to Holdings as soon as they become available accurate and complete copies of all forms, reports, and other documents furnished by it to its limited partners generally or filed by it with the Commission subsequent to the date hereof and prior to the Closing Date.

 

5.8 Financial Statements .

 

(a) Rhino has provided to Holdings copies of (i) the unaudited consolidated balance sheet as of June 30, 2016 and the related unaudited consolidated statements of income, cash flows and owners’ equity for the fiscal quarter then ended (including in all cases the notes, if any, thereto) of the Partnership Entities contained in the quarterly report on Form 10-Q filed by Rhino with the Commission on August 11, 2016 (the “Financial Statements”). The Financial Statements have been prepared in accordance with GAAP applied on a basis consistent with past practices, and fairly present the respective consolidated financial position of the Partnership Entities as of June 30, 2016 and the consolidated results of operations and cash flows for the Partnership Entities for the fiscal periods set forth therein.

 

5.9 Absence of Certain Changes . Since June 30, 2016, except as disclosed in the Financial Statements, the SEC Filings and except for the execution and delivery of this Agreement and the Transaction Documents, (a) there has been no event that would have a material adverse effect on the financial condition, business, properties, or results of operations of the Partnership Entities, taken as a whole, except for changes affecting the economy generally or other changes affecting the coal industry generally; (b) the Partnership Business has been conducted only in the ordinary course consistent with past practice; (c) except for, or as contemplated by, this Agreement, none of the Partnership Entities has incurred any material liability, engaged in any material transaction or entered into any material agreement outside the ordinary course of business consistent with past practice that individually or in the aggregate would result in a material adverse effect; (d) none of the Partnership Entities has suffered any material loss, damage, destruction or other casualty to any of the Partnership Assets that individually or in the aggregate would result in a material adverse effect; and (e) none of the Partnership Entities has taken any of the actions set forth below:

 

 

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(i) amended its certificate of formation or partnership agreement; split (including any reverse split), combined, or reclassified any of its partnership interests; adopted resolutions authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of any Partnership Entity; or made any other material changes in its capital structure;

 

(ii) except in the ordinary course of business consistent with past practice, (i) incurred any liability or obligation, (ii) become liable or responsible for the obligations of any other Person (other than Subsidiaries) or (iii) paid, discharged, or satisfied any claims, liabilities, or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction, in the ordinary course of business consistent with past practice, of liabilities reflected or reserved against in the Financial Statements;

 

(iii) incurred any indebtedness for borrowed money, except for borrowings under the Credit Facility or as permitted under the Credit Facility;

 

(iv) made any loans or advances to any person, other than (i) advances to employees in the ordinary and usual course of business and (ii) transactions among or between the Partnership Entities with respect to cash management conducted in the ordinary and usual course of the Partnership Business;

 

(v) declared or paid any dividend or made any other distribution with respect to its partnership interests, other than dividends paid by any Subsidiary to another of the Partnership Entities in the ordinary and usual course of the Partnership Business;

 

(vi) issued, sold, or delivered (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any of its partnership interests or other securities other than as contemplated herein or purchase or otherwise acquire any of its partnership interests or debt securities;

 

(vii) subjected to Encumbrance any of its assets or properties, other than those Encumbrances arising by operation of law or in the ordinary and usual course of business and those Encumbrances incurred to secure the Existing Indebtedness or as permitted under the Credit Facility;

 

(viii) other than in the ordinary course of business, sold, leased, transferred, or otherwise disposed of, directly or indirectly, any assets, or waive, release, grant, or transfer any rights of value;

 

(ix) acquired (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof; or made any other investment or expenditure of a capital nature, except the consummation of the Exchange;

 

(x) entered into, adopted, or (except as may be required by law) amended or terminated any collective bargaining agreement, Partnership Plan or other employee benefit plan; other than in the ordinary course of business and consistent with past practices, grant, approve, implement or amend any employment severance, retention, termination pay, or similar arrangements or retain or discharge any current or former officers or personnel; other than in the ordinary course of business and consistent with past practices, authorize, amend, or enter into any employment, severance, retention, termination pay, or similar consulting services or other agreement with any current or former officers or personnel; grant enter into or amend any employment, consulting, bonus, change in control or similar agreement or arrangement with, any current or former officers or personnel; increase the compensation or benefits provided to any current or former officers or personnel grant any equity or equity-based awards to, or discretionarily accelerate the vesting or payment of any such awards held by, any current or former officers or personnel; or establish, adopt, enter into amend, or agree to be bound by any collective bargaining agreement or similar labor agreement;

 

 

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(xi) other than supply or other contracts entered into in the ordinary course of the Partnership Business and consistent with past practices, entered into any contract, agreement, lease or other commitment which is material to the business, assets, properties, or financial position of the Partnership Entities; or amended, modified, or changed in any material respect any of the agreements pertaining to the Credit Facility or any other existing contract, agreement, lease or other commitment which is material to the business, assets, properties, or financial position of the Partnership Entities;

 

(xii) other than hedges to supply and sales agreements entered into in the ordinary course of the Partnership Business, entered into any speculative or commodity swaps, hedges or other derivatives transactions or purchase any securities for investment purposes, other than in connection with the Partnership Entities’ cash management;

 

(xiii) other than in the ordinary course of the Partnership Business and consistent with past practices, authorized, entered into or amended any contract, agreement or other commitment with any director, officer, employee, non-employee service provider or other Affiliate (other than the Partnership Entities) pursuant to which any such person shall receive compensation, consideration or benefit of any kind (whether cash or property) from any of the Partnership Entities; or

 

(xiv) made or changed any material Tax election, changed any method of Tax accounting, grant any extension of time to assess any Tax or settle any Tax claim, amend any Tax Return in any material respect or settle or compromise any material Tax liability.

 

5.10 Tax Matters.

 

(a) All Tax Returns required to be filed on or before the Closing Date by Rhino and Rhino GP have been timely filed. Such Tax Returns are true, complete and correct in all respects. All Taxes due and owing by the Partnership Entities (whether or not shown on any Tax Return) have been timely paid.

 

(b) The Partnership Entities have withheld and paid each Tax required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, customer, shareholder or other party, and complied with all information reporting and backup withholding provisions of Applicable Law.

 

 

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(c) No claim has been made by any taxing authority in any jurisdiction where a Partnership Entity does not file Tax Returns that it is, or may be, subject to Tax by that jurisdiction.

 

(d) No extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of the Partnership Entities.

 

(e) The amount of the Partnership Entities’ respective Liabilities for unpaid Taxes for all periods ending on or before December 31, 2015 does not, in the aggregate, exceed the amount of accruals for Taxes (excluding reserves for deferred Taxes) reflected on the Financial Statements. The amount of the Partnership Entities’ Liability for unpaid Taxes for all periods following the end of the recent period covered by the Financial Statements shall not, in the aggregate, exceed the amount of accruals for Taxes (excluding reserves for deferred Taxes) as adjusted for the passage of time in accordance with the past custom and practice of the Company (and which accruals shall not exceed comparable amounts incurred in similar periods in prior years).

 

(f) All deficiencies asserted, or assessments made, against a Partnership Entity as a result of any examinations by any taxing authority have been fully paid. None of the Partnership Entities is a party to any pending Proceeding by any taxing authority and no such Proceeding is threatened.

 

(g) The Partnership Entities have delivered to Holdings copies of all federal, state, local and foreign income, franchise and similar Tax Returns, examination reports, and statements of deficiencies assessed against, or agreed to by, the Partnership Entities for all Tax periods ending after January 1, 2012.

 

(h) There are no Encumbrances for Taxes (other than for current Taxes not yet due and payable) upon the assets of the Partnership Entities.

 

(i) None of the Partnership Entities is a party to, or bound by, any Tax indemnity, Tax sharing or Tax allocation agreement.

 

(j) No private letter rulings, technical advice memoranda or similar agreement or rulings have been requested, entered into or issued by any taxing authority with respect to the Partnership Entities.

 

(k) The Partnership Entities have not been a member of an affiliated, combined, consolidated or unitary Tax group for Tax purposes. The Partnership Entities have no Liability for Taxes of any Person under Treasury Regulations Section 1.1502-6 (or any corresponding provision of Applicable Law), as transferee or successor, by contract or otherwise.

 

 

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(l) The Partnership Entities will not be required to include any item of income in, or exclude any item or deduction from, taxable income for any taxable period or portion thereof ending after the Closing Date as a result of: (i) any change in a method of accounting under Section 481 of the Code (or any comparable provision of Applicable Law), or use of an improper method of accounting, for a taxable period ending on or prior to the Closing Date; (ii) an installment sale or open transaction occurring on or prior to the Closing Date; (iii) a prepaid amount received on or before the Closing Date; (iv) any closing agreement under Section 7121 of the Code, or similar provision of state, local or foreign Law; or (v) any election under Section 108(i) of the Code.

 

(m) No Partnership Entity is or has ever been, a party to, or a promoter of, a “reportable transaction” within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011 4(b).

 

(n) No property owned by the Partnership Entities is (i) required to be treated as being owned by another person pursuant to the so-called “safe harbor lease” provisions of former Section 168(f)(8) of the Code, (ii) subject to Section 168(g)(1)(A) of the Code, or (iii) subject to a disqualified leaseback or long-term agreement as defined in Section 467 of the Code.

 

5.11 Compliance with Laws . Subject to the specific representations and warranties in this Agreement, which representations and warranties shall govern the subject matter thereof, the Partnership Entities have complied in all material respects with all Applicable Laws relating to the ownership or operation of the Partnership Assets and the conduct of the Partnership Business. Except as set forth in Schedule 5.11 , none of the Partnership Entities has received notice that it is charged or, to the knowledge of the Partnership Parties, threatened with, or under investigation with respect to, any material violation of any Applicable Law relating to any aspect of the ownership or operation of the Partnership Assets or Partnership Business.

 

5.12 Legal Proceedings . Except as described in the SEC Filings or set forth on Schedule 5.12 , there is (a) no Proceeding before or by any Governmental Entity or arbitrator or official, domestic or foreign, now pending or, to the knowledge of the Partnership Parties, threatened, to which any of the Partnership Entities is or may be a party or to which the business or property of any of the Partnership Entities is or may be subject and (b) 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 Partnership Entities is or may be subject, that, in the case of clauses (a) and (b) above, is reasonably expected to (x) individually or in the aggregate have a material adverse effect, (y) prevent or result in the suspension of the issuance and sale of the New Rhino Units or the Rhino GP LLC Interest or (z) affect adversely the ability of Rhino to consummate the Exchange as contemplated herein. Any and all probable and estimated liabilities of the Partnership Entities under any and all Proceedings now pending or, to the knowledge of the Partnership Parties, threatened, to which any of the Partnership Entities is or, to the knowledge of the Partnership Parties, may be a party or to which the business or property of any of the Partnership Entities, to the knowledge of the Partnership Parties, is or may be subject, are adequately covered (except for standard deductible amounts) by the existing insurance maintained by Rhino or reserves established by the Financial Statements.

 

 

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5.13 Sufficiency of Partnership Assets . The Partnership Assets constitute all the assets and properties the use or benefit of which are reasonably necessary for the operation of the Partnership Business as conducted on the date of this Agreement. All Partnership Assets necessary for the conduct of the Partnership Business are maintained in accordance with industry standards, normal wear and tear excepted, and are useable in the continued operation of the Partnership Business consistent with past practice.

 

5.14 Permits . Each of the Partnership Entities has, or at the Closing Date will have, such Permits as are necessary to own its properties and to conduct its business in the manner described in the SEC Filings, subject to such qualifications as may be set forth in the SEC Filings; each of the Partnership Entities has, or at the Closing Date will have, fulfilled and performed all its material obligations with respect to such Permits, and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any impairment of the rights of the holder of any such Permit; and, except as described in the SEC Filings, none of such Permits contains any restriction that is materially burdensome to the Partnership Entities considered as a whole. 

 

5.15 Insurance . Rhino maintains insurance covering the properties, operations, personnel and businesses of the Partnership Entities. Such insurance insures against such losses and risks as are reasonably adequate to protect the Partnership Entities and their businesses. None of the Partnership Entities has received notice from any insurer or agent of such insurer that substantial capital improvements or other expenditures will have to be made in order to continue such insurance; all such insurance is outstanding and duly in force on the date hereof and will be outstanding and duly in force on the Closing Date. 

 

5.16 Books and Records . Each of the Partnership Entities (i) makes and keeps books, records and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of assets and (ii) maintains systems of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. 

 

 

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5.17 Employee Matters . (a) each of the Partnership Entities is and has been in compliance in all material respects with all Applicable Laws relating to employment and employment practices, terms and conditions of employment, equal employment opportunity, non-discrimination, non-harassment, non-retaliation, labor relations, wages, hours of work and overtime, worker classification as employee or independent contractor or exempt or non-exempt, employment-related immigration and authorization to work in the United States, occupational safety and health, mine worker safety and health, employee notice of plant closings or mass layoffs, information privacy and security, and privacy of health information, and is not engaged in any unfair labor practice; (b) there is and has been no unfair labor practice or similar complaint against any of the Partnership Entities pending before the National Labor Relations Board or other Governmental Agency; (c) there is and has been no labor strike, dispute, slowdown or stoppage or similar labor problem actually pending or, to the knowledge of Partnership Parties, threatened against or affecting any of the Partnership Entities; (d) no grievance proceeding or arbitration Proceeding arising out of or under any collective bargaining agreements to which any Partnership Entity is a party is or has been pending and no material claim therefor exists; (e) none of the Partnership Entities has experienced any work stoppage or other organized labor difficulty in the past five (5) years and (f) except as set forth on Schedule 5.17 , there is and has been no litigation or other Proceedings pending between the Partnership Entities and any employees or persons claiming to be employees nor, to the knowledge of Partnership Parties, is any such litigation or Proceeding threatened. All employees of the Partnership Entities are authorized to work in the United States. All such employees have been properly treated as employees and all and are properly classified as exempt or non-exempt under Applicable Law. There are no pending or, to the knowledge of Partnership Entities, threatened legal, arbitral or administrative suits, actions, investigations or other Proceedings of any kind and in any forum by a Governmental Authority or by or on behalf of any current or former employee of a Partnership Entity, applicant, person claiming to be an employee, or any classes of the foregoing, alleging or concerning a violation of, or compliance with, any of the Applicable Laws referenced above; and there have been no such proceedings in the past five years; and, to the knowledge of the Partnership Entity, no basis exists for any such proceedings. There is no current or, to the knowledge of Partnership Entities, threatened legal, arbitral or administrative suits, actions, investigations or other Proceedings of any kind and in any forum in which any current or former director, officer, or agent of any Partnership Entity is or may be entitled to indemnification. No Partnership Entity is or has been a party to or subject to, or is currently or has been negotiating in connection with entering into, any collective bargaining, union, labor or other similar agreement and, to the knowledge of the Partnership Entities, there currently is no and has not been any organizational campaign, petition or other unionization activity seeking recognition of a collective bargaining unit relating to any employees of any Partnership Entity. No employees of the Partnership Entities are or have been represented by any labor organization, union, or group of employees, and no labor organization, union, or group of employees claims or has claimed to represent a majority of any such employees in a bargaining unit. The Partnership Entities have timely paid or made provision for payment of, and has properly accrued for in their financial statements, all accrued salaries, wages, commissions, bonuses, severance pay, and vacation, sick, and other paid leave and compensation or remuneration with respect to any current or former employees of the Partnership Entities for on account of employment. The Partnership Entities have complied with the Older Workers’ Benefit Protection Act and other Applicable Law with respect to any waivers or releases of liability obtained by it. The Partnership Entities have timely paid or properly accrued for all wages, salaries, commissions, bonuses, severance pay, vacation pay, benefits, and any other compensation or remuneration owed to employees or non-employee service providers for or on account of employment or services rendered. No Partnership Entity is party to, or otherwise bound by, any settlement, consent decree, order or injunction with respect any employees or non-employee service providers, the terms and conditions of employment or engagement of any employees or non-employee service providers, or the working conditions of any employees or non-employee service providers. 

 

 

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5.18 Consents . Schedule 5.18 sets forth each of the consents, approvals, orders, authorizations and waivers of, and declarations, filings and registrations with, all third parties (including Governmental Authorities) that are necessary or required to permit the transactions contemplated by this Agreement and otherwise to consummate the Exchange (the “Partnership Consents”). 

 

5.19 Employee Benefit Plans.

 

(a) Schedule 5.20(a) contains a true and complete list of all employee benefit plans (within the meaning of Section 3(3) of ERISA), and all bonus, stock option, unit option, stock purchase, unit purchase, restricted stock, restricted unit, incentive, equity-based compensation, deferred compensation, disability, retiree medical, life or other benefits, supplemental retirement or other benefits, supplemental unemployment or income, dependent care, severance, and other similar fringe or benefit plans, programs or arrangements, and all employment, executive compensation, termination, severance, change of control or other contracts or agreements written or otherwise maintained or contributed to or for the benefit of or relating to any current or former employee, officer, director or other service provider of any of the Partnership Entities or their respective ERISA Affiliates, or with respect to which the Partnership Entities or their respective ERISA Affiliates have or may have any Liability, contingent or otherwise (collectively, referred to herein as the “Partnership Plans”). With respect to each Partnership Plan, the Partnership Parties have provided to Holdings accurate and complete copies of (i) all written documents comprising such plan (including amendments, individual agreements, service agreements, trusts and other funding agreements), (ii) the three most recent annual returns in the Form 5500 series (including all schedules thereto) filed with respect to such plan, (iii) the most recent audited financial statement and accountant’s report (if required), (iv) the summary plan description currently in effect and all material modifications thereto (if required), (v) for each such plan which is (or ever was) intended to qualify under Section 401(a) of the Code, the most recent determination letter or opinion letter issued by the Internal Revenue Service, (vi) any employee handbook which includes a description of such plan, (vii) any other written communications to any employee or employees, or to any other individual or individuals, to the extent that the provisions of such plan described therein differ materially from such provisions as set forth or described in the other information or materials furnished under this Section, and (viii) any communications with any Governmental Authority related to such plan, other than transmittal letters and other routine correspondence.

 

(b) None of the Partnership Entities has any express or implied commitment (i) to create, incur liability with respect to or cause to exist any other employee benefit plan, program or arrangement, (ii) to enter into any contract or agreement to provide compensation or benefits to any individual, or (iii) to modify, change or terminate any Partnership Plan, other than with respect to a modification, change or termination required by ERISA or the Code.

 

(c) During the past six years the Partnership Entities and their respective ERISA Affiliates have not maintained, contributed to or had an obligation to contribute, nor have any Liability, contingent or otherwise, with respect to (i) a multiemployer plan, within the meaning of Section 3(37) of ERISA, (ii) a plan subject to Title IV of ERISA or Section 412 of the Code, (iii) a multiple employer plan within the meaning of Section 413 of the Code or Section 4063 or 4064 of ERISA, or (iv) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA. None of the Partnership Plans (i) provides for the payment of separation, severance, termination or similar-type benefits to any person, (ii) obligates any Partnership Entity to pay separation, severance, or termination benefits or provide other benefits (including, without limitation, additional accruals or accelerated vesting of options) as a result of the Transaction (either alone or in connection with any additional or subsequent event or events), or (iii) obligates any Partnership Entity to make any payment or provide any benefit that could be subject to a tax under Section 4999 of the Code. None of the Partnership Plans provides for or promises retiree medical, disability or life insurance benefits to any current or former employee, officer, director or service provider of any Partnership Entity, except for continuation coverage required by Section 4980B of the Code, Sections 601 to 608 of ERISA or applicable state law.

 

 

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(d) Each Partnership Plan which is intended to be qualified under Section 401(a) or 401(k) of the Code is so qualified and to the knowledge of the Partnership Parties has always been so qualified, and if any Partnership Plan was previously not so qualified, such failure shall not affect its current qualified status nor result in or cause any cost or expense to any Partnership Entity, and there has been no event, condition or circumstance that has adversely affected or is likely to affect such qualified status. Each Partnership Plan is now operated in all material respects in accordance with the requirements of Applicable Law, including, without limitation, ERISA and the Code, and, to the knowledge of the Partnership Parties has always been so operated and if any Partnership Plan was ever previously operated not in accordance with Applicable Law, including, without limitation, ERISA and the Code, such failure shall not result in any cost or expense to any Partnership Entity, and each Partnership Entity has performed all obligations required to be performed by it under such Partnership Plan, is not in any respect in default under or in violation of, and has no knowledge of any default or violation by any party with respect to, any Partnership Plan.

 

(e) With respect to each Partnership Plan, there have been no prohibited transactions, or, to the knowledge of the Partnership Parties, breaches of fiduciary duties that could result in liability (directly or indirectly) for any Partnership Entity and the consummation of the Transaction will not result in a prohibited transaction or breach of fiduciary duty.

 

(f) All contributions to, and payments from, each Partnership Plan that are required to be made in accordance with the terms of the Partnership Plan and Applicable Law have been timely made. Any Partnership Plan that provides nonqualified deferred compensation within the meaning of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code. The Partnership Entities and their respective ERISA Affiliates maintain no employee benefit plan, program or arrangement required to comply with the laws of any foreign jurisdiction.

 

(g) No litigation or claim (other than routine claims for benefits), and no governmental administrative proceeding, audit or investigation, is pending or, to the knowledge of the Partnership Entities or their respective ERISA Affiliates, threatened with respect to any Partnership Plan.

 

5.20 Finder’s Fees . No Person has, or as a result of the transactions contemplated herein will have, any right or valid claim against the Partnership Parties for any commission, fee or other compensation as a finder or broker, or in any similar capacity. 

 

 

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5.21 Regulation . None of the Partnership Entities is now, or after the consummation of the Exchange and application of the net proceeds thereof will be, (i) an “investment company” or a company “controlled by” an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or (ii) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” thereof, within the meaning of the Public Utility Holding Company Act of 1935, as amended. 

 

5.22 Ownership of the GP LLC Interest . Royal owns, of record and beneficially, and will have good and valid title to and the right to transfer to Holdings pursuant to this Agreement, the Rhino GP LLC Interest, free and clear of any and all Encumbrances. There are no options, rights, voting trusts, stockholder agreements or any other contracts or understandings to which Royal will be a party or by which Royal or the GP LLC Interest, will be bound with respect to the issuance, sale, transfer, voting or registration thereof. At the Closing Date, Holdings will acquire good, valid and marketable title to the GP LLC Interest, free and clear of any and all Encumbrances.

 

5.23 Investigation . Rhino and Rhino GP have conducted their own independent investigation, review and analysis of Armstrong and its assets and business. Rhino and Rhino GP acknowledge and agree that in making their respective decisions to enter into this Agreement and to consummate the transactions contemplated hereby, (a) Rhino and Rhino GP have relied solely upon their own investigation and the express representations and warranties of Armstrong and Holdings set forth in Section IV ; and (b) neither Holdings nor any other Person has made any representation or warranty as to Armstrong, its business or its assets, except as expressly set forth in Section V .

 

SECTION VI.

INDEMNIFICATION

 

6.1 Indemnification by Rhino and Rhino GP . Subject to the limitations set forth in this Agreement, Rhino GP and Rhino jointly and severally, agree to indemnify and defend Holdings, its Affiliates and their respective Representatives (collectively, the “ Holdings Related Parties ”) against, and hold each of them harmless from, any and all losses, actions, suits, proceedings (including any investigations, litigation or inquiries), demands and causes of action, and, in connection therewith, and promptly upon demand, pay or reimburse each of them for all reasonable costs, losses, Liabilities, Taxes, penalties, fines, interests, deficiencies, damages, costs or expenses of any kind or nature whatsoever, including, the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter (each, a “ Loss ”) that may be suffered, sustained or incurred by any Holdings Related Party or asserted against any Holdings Related Party as a result of, arising out of, in connection with or in any way related to (i) the breach or inaccuracy of any of the representations or warranties of Rhino, Rhino GP or Royal contained herein or in any of the Transaction Documents or (ii) the breach of any covenant or agreement of Rhino, Rhino GP or Royal contained herein or in the Transaction Documents; provided , however , in each case, that any such claim for indemnification is made prior to the expiration of such representation, warranty, covenant or agreement (it being understood that for purposes of determining when an indemnification claim has been made, the date upon which a Holdings Related Party has given notice (stating in reasonable detail, to the extent known, the basis of the claim for indemnification) to Rhino shall constitute the date upon which such claim has been made).

 

 

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6.2 Indemnification by Holdings . Subject to the limitations set forth in this Agreement, Holdings agrees to indemnify and defend the Rhino Group and its respective Representatives (other than any such Representative that is also a Representative of Holdings) (collectively, the “ Rhino Related Parties ”) against, and hold each of them harmless from, any and all Losses that may be suffered, sustained or incurred by any Rhino Related Party or asserted against any Rhino Related Party as a result of, arising out of, in connection with or in any way related to (i) the breach or inaccuracy of any of the representations or warranties of Holdings contained herein or in any of the Transaction Documents or (ii) the breach of any covenant or agreement of Holdings contained herein or in the Transaction Documents; provided , however , that such claim for indemnification relating to a breach of any representation, warranty, covenant or agreement is made prior to the expiration of such representation or warranty (it being understood that for purposes of determining when an indemnification claim has been made, the date upon which a Rhino Related Party has given notice (stating in reasonable detail, to the extent known, the basis of the claim for indemnification) to Holdings shall constitute the date upon which such claim has been made).

 

6.3 Indemnification Procedure .

 

(a) Promptly after any Holdings Related Party or any Rhino Related Party (hereafter, the “ Indemnified Party ”) discovers facts giving rise to a claim for indemnification hereunder, including receipt by it of notice of any indemnifiable claim hereunder, or the commencement of any action, suit or proceeding by a third Person (a “ Third Party Claim ”), which the Indemnified Party believes in good faith is an indemnifiable claim under this Agreement, the Indemnified Party shall give the indemnifying party hereunder (the “ Indemnifying Party ”) written notice of such claim or the commencement of such action, suit or proceeding. Failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability it may have to such Indemnified Party hereunder except to the extent (and then only to the extent) that the Indemnifying Party can demonstrate that the Indemnifying Party’s rights and obligations pursuant to this Section VI are materially and actually prejudiced by such failure. Such notice shall state the nature and the basis of such claim to the extent then known and shall include a formal demand for indemnification under this Agreement. The Indemnifying Party shall have the right to defend and settle any such matter, at its own expense and by its own counsel; provided, however, that the Indemnifying Party (i) promptly notifies the Indemnified Party of its intention to do so and acknowledges its indemnification obligations pursuant to this Section VI in writing to the Indemnified Party and (ii) pursues such defense (or, if applicable, settlement) diligently and in good faith. If the Indemnifying Party undertakes to defend or settle such claim, the Indemnified Party shall cooperate with the Indemnifying Party and its counsel in all commercially reasonable respects in the defense thereof and the settlement thereof. Such cooperation shall include furnishing the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s possession or control. Such cooperation of the Indemnified Party shall be at the sole cost of the Indemnifying Party. After the Indemnifying Party has notified the Indemnified Party of its intention to undertake to defend or settle any such matter, and for so long as the Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such asserted liability; provided, however, that the Indemnified Party shall be entitled (x) at its expense, to participate in the defense of such matter and the negotiations of the settlement thereof and (y) if (i) the Indemnifying Party has failed to assume the defense and employ counsel within 30 days of when the Indemnified Party has provided written notice of such claim for indemnification or fails to diligently and in good faith pursue the defense thereof or (ii) if counsel to the Indemnified Party shall have concluded that there may be reasonable defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party or if the interests of the Indemnified Party reasonably may be deemed to conflict with the interests of the Indemnifying Party, then the Indemnified Party shall have the right to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the Indemnifying Party as incurred.

 

 

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(b) Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not settle any indemnified claim or otherwise enter into any final conclusion with respect to such claim without the prior written consent of the Indemnified Party (i) if the settlement thereof (A) imposes any Liability or obligation on, (B) does not include a complete and unconditional release from Liability of or (C) contains any admission of wrongdoing by, the Indemnified Party or (ii) that subjects the Indemnified Party to any non-monetary or other equitable relief or criminal liability or imposes any other obligation on or requires any payment from the Indemnified Party.

 

6.4 Limitations and Other Indemnity Claim Matters .

 

(a) No Indemnifying Party shall have any obligation to indemnify any Indemnified Party against, or reimburse any Indemnified Party for, any Loss or series of related Losses pursuant to Section 6.1(i) , with respect to Rhino (other than the representation and warranties contained in Sections 5.1 , 5.2 , 5.3 , 5.4 , 5.10 , 5.18 , 5.20 and 5.21 ) or pursuant to Section 6.2(i) , with respect to Holdings until (i) each such individual Loss exceeds $20,000 and (ii) the aggregate amount of all such Losses exceeds $100,000, in which event the Indemnifying Party shall be liable for all such Losses from the first dollar.

 

(b) Notwithstanding anything herein to the contrary, in no event shall (i) the Rhino Group be liable to any Holdings Related Party for any Loss or series of related Losses pursuant to Section 6.1(i) in excess of $1,000,000 or (ii) Holdings be liable to any Rhino Related Party for any Loss or series of related Losses pursuant to Section 6.2(i) in excess of $1,000,000, as applicable.

 

(c) For purposes of the indemnification obligations contained in this Section VI , when determining whether a breach or inaccuracy of any representation, warranty or covenant has occurred, and when calculating the amount of Losses incurred arising out of or relating to any such breach or inaccuracy, all references to “material”, “materially”, “materiality” or “material adverse effect” or similar or correlative terms shall be disregarded.

 

 

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(d) Notwithstanding anything herein to the contrary, in no event will the limitations set forth in this Section 6.4 apply (i) in the event of fraud or willful misconduct by any Indemnifying Party or (ii) with respect to any Loss or series of related Losses as a result of, arising out of or in any way related to breaches of covenants or agreements contained in this Agreement or the Transaction Documents.

 

6.5 Survival . Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein and in the other Transaction Documents shall survive the Closing and shall remain in full force and effect until the date that is 18 months from the Closing Date.

 

SECTION VII.

CONDITIONS TO CLOSING

 

7.1 Conditions to Each Party’s Obligations . The respective obligations of each party hereto to effect the transactions contemplated hereby shall be subject to the satisfaction (or waiver, if permissible under Applicable Law) on or prior to the Closing Date of the following conditions:

 

(a) Government Approvals . All material consents, waivers, and approvals, of any Governmental Authority that are required in connection with the execution and delivery of this Agreement or any other Transaction Document have been obtained and any and all notices to any Governmental Authority have been given.

 

(b) No Injunctions or Restraints . No Applicable Law or Order, enacted, promulgated, issued, entered, amended or enforced by any Governmental Authority (collectively, “ Restraints ”) shall be in effect enjoining, restraining, preventing or prohibiting consummation of the transactions contemplated hereby or making the consummation of the transactions contemplated hereby illegal.

 

7.2 Conditions to Holdings’ Obligations . The obligations of Holdings to effect the Exchange shall be subject to the satisfaction (or waiver, if permissible under Applicable Law) on or prior to the Closing Date of the following conditions:

 

(a) Representations and Warranties of Rhino and Rhino GP . The representations and warranties of Rhino and Rhino GP contained in Section V shall be true and correct in all respects, in each case both as of the date of this Agreement and as of the Closing Date, as if made at and as of such time, except to the extent that Section V specifies that such representations and warranties are made as of a particular date.

 

(b) Performance of Obligations of Rhino and Rhino GP . Rhino and Rhino GP shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing.

 

 

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(c) Agreement with Armstrong’s Bondholders . Armstrong and Rhino and Armstrong’s bondholders shall enter into an agreement to restructure outstanding bonds in a manner that is acceptable to Holdings (the “ Bondholder Agreement ”).

 

(d) Admission of Holdings as Partner. Rhino shall take all action necessary to admit Holdings as a partner of Rhino effective as of the Closing.

 

(e) Admission of Holdings as Member. Rhino GP shall take all action necessary to admit Holdings as a member of Rhino GP effective as of the Closing.

 

(f) Rhino Units . Rhino shall have delivered to Holdings certificates representing the New Rhino LP Units and Rhino GP shall have delivered to Holdings evidence, to Holdings’ satisfaction, of the issuance of the Rhino GP LLC Interest, in each case, free and clear of all Encumbrances other than Permitted Encumbrances.

 

(g) Rhino Credit Agreement . Rhino shall have complied with all obligations under the Credit Facility and no further consents or amendments to such Credit Agreement shall be required by the lenders under the Credit Facility.

 

(h) Rhino Closing Certificate . Holdings shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Rhino GP and a duly authorized officer of Rhino, that each of the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied.

 

(i) Rhino Incumbency Certificate . Holdings shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Rhino GP and Rhino certifying the names and signatures of the officers of Rhino GP and Rhino authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.

 

(j) Approval . Holdings has received evidence of the approval of any conflicts as a results of the transaction contemplated by this Agreement to its satisfaction, which may include:

 

  A. the Limited Partner Approval of the transactions contemplated by this Agreement, as would be required under the rules of the New York Stock Exchange for a company listed thereon; or
     
  B. either (1) the approval of a majority of the minority of the limited partners of Rhino of the transactions contemplated by this Agreement; or (2) the approval of the Conflicts Committee of the Rhino Board of the transactions contemplated by this Agreement, in either case to Holdings satisfaction.

 

 

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7.3 Conditions to Rhino’s Obligations . The obligations of Rhino to effect the Exchange shall be subject to the satisfaction (or waiver, if permissible under Applicable Law) on or prior to the Closing Date of the following conditions:

 

(a) Representations and Warranties of Holdings . The representations and warranties of Holdings contained in Section IV shall be true and correct in all respects, in each case both as of the date of this Agreement and as of the Closing Date, as if made at and as of such time, except to the extent that Section IV specifies that such representations and warranties are made as of a particular date.

 

(b) Performance of Obligations of Holdings . Holdings shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing.

 

(c) Stock Power and Assignment . Holdings shall execute and deliver a Stock Power and Assignment for the transfer of the Exchange Shares to Rhino.

 

(d) Debt Refinancing . Holdings and Rhino shall have arranged for the refinancing of the outstanding debt under the Credit Facility on terms and conditions acceptable to Rhino and Rhino GP.

 

(e) Rhino Credit Agreement . Rhino shall have received all consents required under the Credit Facility on terms satisfactory to Rhino in its sole and absolute discretion.

 

(f) Rhino Board Approval . Rhino shall have received the approval and consent of the Board of Directors of Rhino GP, which board is the acting management of Rhino (“the “Rhino Board”), satisfactory to Rhino in its sole and absolute discretion.

 

(g) Financial Consolidation . Royal shall be satisfied that it will maintain its ability after Closing to consolidate the financial results of Rhino in accordance with the GAAP accounting guidelines contained in Accounting Standards Codification Topic 810.

 

(h) Holdings Closing Certificate . Rhino shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Holdings, that each of the conditions set forth in Section 7.3(a) and Section 7.3(b) have been satisfied.

 

(i) Holdings Incumbency Certificate . Rhino shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Holdings certifying the names and signatures of the officers of Holdings authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.

 

 

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7.4 Frustration of the Closing Conditions . None of the parties hereto may rely on the failure of any condition set forth in this Section VII to be satisfied if such failure was caused by such party’s failure to use its reasonable best efforts to consummate the Exchange and the other transactions contemplated hereby, or other breach of or noncompliance with this Agreement; provided, however, that no party shall be obligated to pay any sum of money or enter into any agreement not satisfactory to such party in commercially reasonable discretion in connection with the satisfaction of any closing condition contained herein; provided, further, that all parties hereto shall take commercially reasonable efforts to satisfy all of the conditions to the Closing of this Agreement.

 

SECTION VIII.
COVENANTS

 

8.1 Conduct of Business Prior to the Closing. From the date hereof until the Closing, except as otherwise provided in this Agreement or consented to in writing by Holdings (which consent shall not be unreasonably withheld or delayed), the Partnership Entities shall (x) conduct their respective businesses in the ordinary course of business consistent with past practice; and (y) use reasonable best efforts to maintain and preserve intact the current organization, business and franchise of the Partnership Entities and to preserve the rights, franchises, goodwill and relationships of its employees, customers, lenders, suppliers, regulators and others having business relationships with the Partnership Entities. Without limiting the foregoing, from the date hereof until the Closing Date, the Partnership Entities shall:

 

(a) preserve and maintain all of their respective permits;

 

(b) pay their respective debts, Taxes and other obligations when due;

 

(c) maintain the properties and assets owned, operated or used by the Partnership Entities in the same condition as they were on the date of this Agreement, subject to reasonable wear and tear;

 

(d) continue in full force and effect without modification all insurance policies, except as required by Applicable Law;

 

(e) defend and protect their respective properties and assets from infringement or usurpation;

 

(f) perform all of its obligations under all Contracts relating to or affecting their respective properties, assets or business;

 

(g) maintain its books and records in accordance with past practice;

 

(h) comply in all material respects with all Applicable Laws; and

 

(i) not take or permit any action that would cause any of the changes, events or conditions described in Section 5.9 (Absence of Certain Changes) to occur.

 

 

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8.2 Notice of Certain Rhino Events .

 

(a) From the date hereof until the Closing, Rhino shall promptly notify Holdings in writing of:

 

(i) any fact, circumstance, event or action the existence, occurrence or taking of which (A) has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect, (B) has resulted in, or could reasonably be expected to result in, any representation or warranty made by Rhino or Rhino GP hereunder not being true and correct or (C) has resulted in, or could reasonably be expected to result in, the failure of any of the conditions set forth in Section 7.2 to be satisfied:

 

(ii) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement or the other Transaction Documents;

 

(iii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement; and

 

(iv) any Actions commenced or, to the knowledge of Rhino, threatened against, relating to or involving or otherwise affecting the Partnership Entities that, if pending on the date of this Agreement, would have been required to have been disclosed or that relates to the consummation of the transactions contemplated by this Agreement.

 

(b) Holdings’ receipt of information pursuant to this Section 8.2 shall not operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Holdings in this Agreement and shall not be deemed to amend or supplement the Disclosure Schedules.

 

8.3 Notice of Certain Holdings Events .

 

(a) From the date hereof until the Closing, Holdings shall promptly notify Rhino in writing of:

 

(i) any fact, circumstance, event or action the existence, occurrence or taking of which (A) has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect, (B) has resulted in, or could reasonably be expected to result in, any representation or warranty made by Holdings hereunder not being true and correct or (C) has resulted in, or could reasonably be expected to result in, the failure of any of the conditions set forth in Section 7.3 to be satisfied:

 

(ii) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement or the other Transaction Documents;

 

(iii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement; and

 

 

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(iv) any Actions commenced or, to the knowledge of Holdings, threatened against, relating to or involving or otherwise affecting Holdings that, if pending on the date of this Agreement, would have been required to have been disclosed or that relates to the consummation of the transactions contemplated by this Agreement.

 

(b) Rhino’s receipt of information pursuant to this Section 8.3 shall not operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Rhino in this Agreement and shall not be deemed to amend or supplement the Disclosure Schedules.

 

8.4 Closing Conditions . From the date hereof until the Closing, each party hereto shall use reasonable best efforts to take such actions as are necessary to expeditiously satisfy the closing conditions set forth in Section VII .

 

8.5 Public Announcements . Unless otherwise required by Applicable Law or stock exchange requirements (based upon the reasonable advice of counsel), no party to this Agreement shall make any public announcements in respect of this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby or otherwise communicate with any news media without the prior written consent of the other parties (which consent shall not be unreasonably withheld or delayed), and the parties shall cooperate as to the timing and contents of any such announcement.

 

8.6 Further Assurances . Following the Closing, each of the parties hereto shall, and shall cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement. The parties agree that to the extent an issuance of the New GP LLC Interest by Rhino GP would result in a more favorable tax treatment to Holdings, the parties will negotiate in good faith to effectuate an issuance of the New GP LLC Interest rather than a transfer of such interest from Royal.

 

8.7 Tax Matters Covenants . For U.S. federal income tax purposes, the parties intend for the Exchange to qualify as a nontaxable transfer within the meaning of Section 721 of the Code. The parties agree to file all Tax Returns with the foregoing treatment of this transaction and to take no position inconsistent with such treatment.

 

8.8 Registration Rights . Rhino agrees that upon the request of Holdings, Rhino will enter into a registration rights agreement with Holdings. Such registration rights agreement shall provide no less than two (2) demand registration rights on Form S-3 for Holdings (one (1) of which demand registration rights may be satisfied by a shelf registration statement on Form S-3), and shall provide for an unlimited number of piggy-back rights, each subject to standard terms and conditions. Such registration rights agreement shall also provide that Holdings shall have the right to demand registration on Form S-1; provided that Holdings owns at least 10% of the outstanding Common Units at the time of such demand.

 

 

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SECTION XI.

 

TERMINATION

 

9.1 Termination . This Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing Date:

 

  (a) By the mutual written consent of Rhino and Holdings;
     
  (b) By either Rhino or Holdings by written notice to the other party;

 

  (ii) if the Closing shall not have been consummated on or before December 31, 2016; provided , that the right to terminate this Agreement under this Section 9.1(b)(i) shall not be available to a party (A) if the inability to satisfy any closing condition in Section VII was due to the failure of such party to perform any of its obligations under this Agreement or (B) if the other party has filed (and is then pursuing) an action seeking specific performance;
     
  (iii) if any Restraint having the effect set forth in Section 7.1(b) shall be in effect and shall have become final and nonappealable; provided , however, that the right to terminate this Agreement under this Section 8.1(b)(ii) shall not be available to a party if such Restraint was due to the failure of such party to perform any of its obligations under this Agreement; or
     
  (iv) if a meeting of the Rhino Board shall have concluded and the approval of the Rhino Board shall not have been obtained, or if such approval has not been obtained by the written consent pursuant to the Rhino LP Agreement.
     
  (v) if the lenders under the Credit Facility fail to approve the Exchange or any of the transactions contemplated by this Agreement or the other Transaction Documents.
     
  (vi) if any Applicable Law makes consummation of the transactions contemplated by this Agreement or the other Transaction Documents illegal or otherwise prohibited, or any Governmental Authority shall have issued an Order restraining or enjoining the transactions contemplated by this Agreement or the other Transaction Documents, and such Order shall have become final and non-appealable.

 

 

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9.2 Effect of Termination . In the event of the termination of this Agreement as provided in Section 9.1 , written notice thereof shall be given to the other parties, specifying the provision of this Agreement pursuant to which such termination is made, and this Agreement shall forthwith become null and void (other than the provisions in Section 9.2 and the provisions in Article X, all of which shall survive termination of this Agreement), and there shall be no liability on the part of any party hereto or their respective directors, managers officers and Affiliates, except that nothing shall relieve any party hereto for fraud or a willful breach of any covenant or other agreement contained in this Agreement.

 

SECTION X.
GENERAL PROVISIONS

 

10.1 Expenses . All fees and expenses incurred in connection with the transactions contemplated hereby including all legal, accounting, financial advisory, consulting and all other fees and expenses of third parties incurred by a party in connection with the negotiation and effectuation of the terms and conditions of this Agreement and the transactions contemplated hereby, shall be the obligation of the respective party incurring such fees and expenses.

 

10.2 Notices . All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 9.2 )::

 

If to Holdings, to:

Rhino Resources Partners Holdings LLC

410 Park Ave., 19 th Floor

New York, New York 10022

Fax No.: ________________

Attn: Bryan R. Lawrence

 

with a copy (which shall not constitute notice) to:

 

Thompson & Knight LLP

One Arts Plaza, 1722 Routh Street, Ste. 1500

Dallas, TX 75201

Fax No.: (214) 999-9001

Email: AnnMarie.Cowdrey@tklaw.com

Attn: Ann Marie Cowdrey

If to Rhino or Rhino GP, to:

424 Lewis Hargett Circle

Lexington, Kentucky 40503

Fax No.: ________________

Attn: Whitney Kegley

 

 

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10.3 Further Assurances . The parties agree (a) to furnish upon request to each other such further information, (b) to execute and deliver to each other such other documents, and (c) to do such other acts and things, all as the other party may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement.

 

10.4 Waiver . The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement or the documents referred to in this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by Applicable Laws, (a) no claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.

 

10.5 Entire Agreement and Modification . This Agreement supersedes all prior agreements between the parties with respect to its subject matter and constitutes (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be amended except by a written agreement executed by the party against whom the enforcement of such amendment is sought.

 

10.6 Assignments, Successors, and No Third-Party Rights . No party may assign any of its rights under this Agreement without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties. Except as otherwise provided for herein, nothing expressed or referred to in this Agreement will be construed to give any Person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the parties to this Agreement and their successors and assigns.

 

 

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10.7 Severability . If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by Applicable Law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

 

10.8 Section Headings, Construction . (a) When a reference is made in this Agreement to a Section or Schedule, such reference shall be to a Section of or Schedule to this Agreement unless otherwise indicated. 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. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns.

 

10.9 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial .

 

(a) This Agreement will be governed by the laws of the State of Delaware without regard to conflicts of laws principles.

 

(b) ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF DELAWARE, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

 

 

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(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.9(c) .

 

10.10 Specific Performance . The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.

 

10.11 Legal Representation . The parties hereto acknowledge that Holdings has selected Thompson & Knight LLP and Rhino and Rhino GP have selected other counsel as their respective legal counsel in connection with the preparation of this Agreement. Each party acknowledges that such respective counsel of Holdings and Rhino has not represented such party in connection with the preparation and negotiation of this Agreement, and such counsel shall owe no duties directly to any such party. Each party confirms that such party has been advised to consult with such party’s own legal, financial and tax advisors regarding the implications of this transaction and has been afforded the opportunity to consult with advisors that such party deems advisable in connection with the negotiations and execution of this Agreement.

 

10.12 Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

[Signature pages follows.]

 

 

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SIGNATURE PAGES

 

IN WITNESS WHEREOF, the parties have executed and delivered this Equity Exchange Agreement as of the date first written above.

 

  Holdings:
   
  RHINO RESOURCE PARTNERS HOLDINGS LLC
     
  By: /s/ Bryan R. Lawrence
  Name: Bryan R. Lawrence
  Title: Member

 

  Equity Exchange Agreement – Signature Page
     

 

  Rhino:
   
  RHINO RESOURCE PARTNERS LP
   
  By: Rhino GP LLC, its general partner
     
  By: /s/ Richard A. Boone
  Name: Richard A. Boone
  Title: President
     
  Rhino GP:
     
  RHINO GP LLC
     
  By: /s/ William L Tuorto
  Name: William L Tuorto
  Title: Executive Chairman
     
  Royal :
   
  ROYAL ENERGY RESOURCES, INC.
     
  By: /s/ William L Tuorto
  Name: William L Tuorto
  Title: Chief Executive Officer

 

  Equity Exchange Agreement – Signature Page
     

 

 

MEMBERSHIP INTEREST PURCHASE AGREEMENT

 

This is a Membership Interest Purchase Agreement (this “Agreement”), dated as of August 22, 2016 (the “Effective Date”), by and among Elk Horn Coal Acquisition LLC, a Delaware limited liability company (“Buyer”) and Rhino Energy LLC, a Delaware limited liability company (“Seller”), the sole member of The Elk Horn Coal Company, LLC, a Delaware limited liability company (the “Company”).

 

WHEREAS Seller owns one hundred percent (100%) of the membership interests of the Company and desires to sell to Buyer, and Buyer desires to purchase from Seller, one hundred percent (100%) of the membership interests of the Company, pursuant to the terms and conditions set forth in this Agreement; and

 

NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged by each of the parties to this Agreement, the parties agree as follows:

 

ARTICLE 1
Definitions and Rules of Interpretation

 

1.1 Definitions . As used in this Agreement, the following terms shall have the following meanings:

 

(a) “Acquisition Documents” shall mean this Agreement, the Employment Agreement between the Company and Joseph Funk, and all other agreements, certificates, opinions, instruments or documents contemplated by, required by or referred to in, this Agreement related to the consummation of the transactions contemplated by this Agreement.

 

(b) “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.

 

(c) “Additional Compensation Payments” means any and all bonus payments, change of control payments, retention payments, incentive compensation payments, severance payments, service award payments or other similar payments payable by the Company or any of the Company Subsidiaries to any of the Company’s or the Company Subsidiaries’ employees, officers, managers or directors, at or before the Closing Date or as a result of, or in connection with, the consummation of the transactions contemplated by this Agreement or the other Acquisition Documents, plus the amount of any payroll taxes or similar amounts incurred by the Company in connection with such payments.

 

(d) “Affiliate” of a Person means any other Person which, directly or indirectly, controls, is controlled by, or is under common control with, such Person. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by Contract or otherwise. “Agreement” shall have the meaning set forth in the preamble.

 

     
 

 

(e) “Allocation Schedule” shall have the meaning set forth in Section 7.9.

 

(f) “Balance Sheet” shall have the meaning set forth in Section 4.5.

 

(g) “Balance Sheet Date” means July 31, 2016.

 

(h) “Books and Records” shall mean originals, or where not available, copies, of all books and records, including, but not limited to, books of account, ledgers and general, financial and accounting records, maintenance files, research and development files, records and data (including all correspondence with any Governmental or Regulatory Authority), strategic plans, internal financial statements, material and research and files relating to the Company’s Intellectual Property.

 

(i) “Bonds” shall have the meaning set forth in Section 4.16.

 

(j) “Business” means the business and operations of the Company and the Company Subsidiaries, as conducted by the Company and the Company Subsidiaries as of the date of this Agreement.

 

(k) “Business Days” shall mean all days other than any Saturday, Sunday or legal holiday in Lexington, Kentucky or New York, New York.

 

(l) “Buyer Breach Claim” shall have the meaning set forth in Section 10.4(b).

 

(m) “Buyer Indemnified Taxes” means liabilities of the Company for Taxes of the Company for any Post-Closing Tax Period.

 

(n) “Charter Documents” shall include, as applicable, articles of incorporation, certificate of incorporation, articles of organization, certificate of formation, certificate of limited partnership, bylaws, operating agreement, limited liability company agreement, partnership agreement, limited partnership agreement, limited liability partnership agreement or any comparable organizational or governing documents.

 

(o) “Claim” shall have the meaning set forth in Section 10.5.

 

(p) “Closing” shall mean the consummation of the transactions contemplated by this Agreement in accordance with the provisions hereof.

 

(q) “Closing Date” shall have the meaning set forth in Section 9.1.

 

(r) “Code” means the Internal Revenue Code of 1986, as amended.

 

(s) “Company” shall have the meaning set forth in the preamble.

 

(t) “Company Bond Claim” shall have the meaning set forth in Section 10.2(f).

 

(u) “Company Breach Claim” shall have the meaning set forth in Section 10.2(a).

 

     
 

 

(v) “Company Contracts” shall have the meaning set forth in Section 4.10.

 

(w) “Company Disclosure Letter” shall have the meaning set forth in Article 4.

 

(x) “Company Fraud Claim” shall have the meaning set forth in Section 10.2(b).

 

(y) “Company Indemnified Taxes” means liabilities of the Company for Taxes of the Company for any Pre-Closing Tax Period.

 

(z) “Company’s Intellectual Property” shall have the meaning set forth in Section 4.17.

 

(aa) “Company Material Adverse Effect” means any change, event, occurrence, circumstance or development which, individually or in the aggregate, (a) has a material adverse effect on the financial condition, properties, assets, liabilities, business or results of operations of the Company and the Company Subsidiaries, taken as a whole; provided that none of the following, in and of itself or themselves, shall constitute a Company Material Adverse Effect: (i) changes in the economy or financial markets generally in the United States or other countries in which the Company or the Company Subsidiaries conduct material operations; (ii) any loss or threatened loss of, or adverse change in, the relationship of the Company or the Company Subsidiaries with its customers, employees or suppliers caused by the pendency or the announcement of the transactions contemplated by this Agreement; (iii) changes in GAAP after the date of this Agreement; (iv) changes that are the result of factors generally affecting the coal industry in the geographic areas in which the Company and the Company Subsidiaries operate including the price of coal); (v) the announcement of the execution of this Agreement or the performance of the obligations under this Agreement; (vi) changes in any applicable Law, rule or regulation or the application thereof; (vii) the commencement, occurrence, continuation or escalation of any war, armed hostility or acts of terrorism; and (viii) any failure by the Company or the Company Subsidiaries to meet any estimates of revenues or earnings for any period ending on or after the date of this Agreement and prior to the Closing; provided that the exception in this clause shall not prevent or otherwise affect a determination that any change, effect, circumstance or development underlying such failure has resulted in or contributed to a Company Material Adverse Effect; provided , further , that, with respect to clauses (i), (iii), (iv), (vi) and (vii), such change, event, circumstance or development does not (A) primarily relate only to (or have the effect of primarily relating only to) the Company or the Company Subsidiaries or (B) disproportionately adversely affect the Company or the Company Subsidiaries compared to other companies of similar size operating in the coal industry; or (b) impairs or would be reasonably expect to impair in any material respect the ability of the Company to consummate the transactions contemplated by this Agreement or to perform its obligations under this Agreement on a timely basis.

 

(bb) “Company’s Operations” means those land holding company and leasing activities performed by the Company or the Company Subsidiaries.

 

(cc) “Company Permits” shall have the meaning set forth in Section 4.16(a).

 

     
 

 

(dd) “Company Permit Claim” shall have the meaning set forth in Section 10.2(g).

 

(ee) “Company Securities” shall have the meaning set forth in Section 4.2(b).

 

(ff) “Company Subsidiaries” means, collectively the Person’s set forth on Schedule 4.1 of the Company Disclosure Letter.

 

(gg) “Contracts” means any agreements, contracts, leases (whether for real or personal property), purchase orders, undertakings, covenants not to compete, employment agreements, confidentiality agreements, licenses, notes, bonds, mortgages, indentures, instruments or other obligations or commitments to which a Person is a party or by which a Person or any of its assets are bound or affected, whether written or oral.

 

(hh) “Deeds” shall have the meaning set forth in Section 4.12(a).

 

(ii) “Deferred Payment” shall have the meaning set forth in Section 2.2(b).

 

(jj) “Direct Claim” shall have the meaning set forth in Section 10.5(d).

 

(kk) “Effective Date” shall have the meaning set forth in the preamble.

 

(ll) “Encumbrance” means any claim, lien, option, charge, easement, reservation, pledge, proxy, voting trust, license, tax assessment, deed of trust, right of first refusal, right of first offer, security interest, mortgage, right-of-way, encroachment, building or use restriction, conditional sales agreement, encumbrance or similar limitation in the nature thereof, whether voluntarily incurred or arising by operation of Law.

 

(mm) “Environmental Laws” means all applicable U.S. federal, state, district and local Laws, all rules or regulations promulgated thereunder, and all Orders, consent orders, judgments, notices, permits or demand letters issued, promulgated or entered pursuant thereto, relating to pollution or protection of the environment (including, without limitation, ambient air, surface water, ground water, land surface, or subsurface strata), including, without limitation, (a) Laws relating to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, industrial materials, wastes or other substances into the environment and (b) Laws relating to the identification, generation, manufacture, processing, distribution, use, treatment, storage, disposal, recovery, transport or other handling of pollutants, contaminants, chemicals, industrial materials, wastes or other substances. Environmental Laws shall include, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the Toxic Substances Control Act, as amended, the Hazardous Materials Transportation Act, as amended, the Resource Conservation and Recovery Act, as amended, the Clean Water Act, as amended, the Safe Drinking Water Act, as amended, the Clean Air Act, as amended, the Surface Mining Control and Reclamation Act of 1977 and all analogous Laws promulgated or issued by any state or other Governmental or Regulatory Authority.

 

(nn) “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

 

     
 

 

(oo) “Excluded Buyer Claims” shall have the meaning set forth in Section 10.3(b).

 

(pp) “Excluded Company Claims” shall have the meaning set forth in Section 10.3(a).

 

(qq) “Final Tax Returns” shall have the meaning set forth in Section 7.1(a).

 

(rr) “Financial Statements” shall have the meaning set forth in Section 4.5.

 

(ss) “FIRPTA Certificate” shall have the meaning set forth in Section 8.3.

 

(tt) “Fundamental Representations” shall mean the representations and warranties set forth in Sections 4.1, 4.2, 4.3 4.4, 4.7, 4.22 and 4.23.

 

(uu) “GAAP” means generally accepted accounting principles as applied in the United States.

 

(vv) “Governmental or Regulatory Authority” means any supranational, national, state, municipal, local or foreign government or any court, tribunal, arbitrator, authority, agency, bureau, board, commission, department, ministry or a branch thereof, official or other instrumentality of the United States, any foreign country or any domestic or foreign state, province, county, city or other political subdivision.

 

(ww) “Hazardous Substance” shall have the meaning set forth in Section 4.22(c).

 

(xx) “Indemnified Party” shall have the meaning set forth in Section 10.2.

 

(yy) “Indemnifying Party” shall have the meaning set forth in Section 10.2.

 

(zz) “Independent Auditor” means a certified public accounting firm mutually selected by the parties, a public accounting firm jointly selected by the Seller and the Buyer.).

 

(aaa) “Interests” shall mean 100% of the membership interests of the Company which the Seller is selling to Buyer pursuant to this Agreement.

 

(bbb) “Law” or “Laws” means any law, common law, statute, order, decree, consent decree, judgment, rule, regulation, ordinance or other guideline, interpretation or pronouncement having the effect of law whether in the United States, any foreign country, or any domestic or foreign state, county, city or other political subdivision or of any Governmental or Regulatory Authority.

 

(ccc) “Leased Real Property” shall have the meaning set forth in Section 4.12(b).

 

(ddd) “Leases” shall have the meaning set forth in Section 4.12(b).

 

     
 

 

(eee) “Liability” means any direct or indirect liability, indebtedness, obligation, commitment, expense, claim, deficiency, guaranty or endorsement of or by any Person of any type, whether accrued, absolute, contingent, matured, unmatured, liquidated, unliquidated, known or unknown.

 

(fff) “Loss” or “Losses” shall have the meaning set forth in Section 10.2.

 

(ggg) “Order” means any writ, judgment, decree, injunction, assessment, decision, ruling, award, settlement or stipulation or similar order issued, promulgated or entered into by or with any Governmental or Regulatory Authority (in each such case whether preliminary or final).

 

(hhh) “Out Leased Property” shall have the meaning set forth in Section 4.12(c).

 

(iii) “Owned Real Property” shall have the meaning set forth in Section 4.12(a).

 

(jjj) “Permits” means any mining permits, mining rights, mining licenses, re-mining agreements and similar authorizations and approvals and other licenses, franchises, permits, filings, exemptions, notices, certificates, consents, approvals or similar authorizations of, from or by a Governmental or Regulatory Authority.

 

(kkk) “Permitted Encumbrances” means: (i) liens for Taxes and other inchoate statutory liens not yet delinquent or which are being contested in good faith and by appropriate proceedings; (ii) private, public and utility easements, rights of way and roads and highways, encroachments, restrictions, conditions and other similar encumbrances incurred or suffered in the ordinary course of the coal industry which do not impair the Company’s business operations as presently conducted; (iii) any matter of public record except those in derogation of the warranties hereinabove made; (iv) governmental building, zoning or other Laws of the jurisdictions in which the Real Property is located, and (v) those Mortgage Liens contemplated to be released post-Closing pursuant to Section 6.1 hereof.

 

(lll) “Person” means any person or entity, whether an individual, trustee, corporation, limited liability company, general partnership, limited partnership, trust, unincorporated organization, business association, firm, joint venture, Governmental or Regulatory Authority or any similar entity.

 

(mmm) “Personal Property” shall have the meaning set forth in Section 4.13.

 

(nnn) “Post-Closing Tax Period” means any Taxable period that commences after the Closing Date (or portion thereof).

 

(ooo) “Pre-Closing Tax Period” means, except as otherwise set forth herein, any Taxable period ending on or before the Closing Date and the portion ending on and including the Closing Date of any Taxable period that commences prior to and includes (but does not end on) the Closing Date.

 

(ppp) “Real Property” shall have the meaning set forth in Section 4.12(b).

 

     
 

 

(qqq) “Related Party” means (a) any of the Company’s officers, managers, members, or Affiliates and any officers, directors, partners, associates or relatives of such officers, managers, members and Affiliates, and (b) any Person in which the Company or any of the Company’s officers, managers, members, or Affiliates, or any Affiliate, associate or relative of any such Person has any direct or indirect interest.

 

(rrr) “Representative” means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person.

 

(sss) “Restricted Period” shall have the meaning set forth in Section 6.4(a).

 

(ttt) “Seller Certification” shall have the meaning set forth in Section 8.3(c).

 

(uuu) “Seller’s Management” shall mean William Tuorto, Richard Boone, Whitney Kegley, Brian Aug, Chad Hunt, Elizabeth Branham, and Scott Morris.

 

(vvv) “Subsidiary” means any Person in which the Company or Buyer, as the context requires, directly or indirectly through Subsidiaries or otherwise, beneficially owns at least 50% of either the equity interest in, or the voting control of, such Person.

 

(www) “Tax” or “Taxes” (and with correlative meanings, “Taxable” or “Taxing”) means any federal, state, local, provincial or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, business, occupation, premium, windfall profits, environmental (including taxes under Code Section 59A), mineral, unmined mineral, abandoned mine land fee, customs, duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, ad valorem , transfer, registration, value added, alternative, advance corporation or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not, and any Liability for the payment of any amount of the type previously described as a result of (a) being a transferee (within the meaning of Section 6901 of the Code) or another Person, or (b) being a member of an affiliated or combined group.

 

(xxx) “Tax Return” means any return, declaration, form, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereto.

 

(yyy) “Transition Period” shall have the meaning set forth in Section 5.1(c).

 

(zzz) “Third-Party Claim” shall have the meaning set forth in Section 10.4(b).

 

(aaaa) “Third Party Leases” shall have the meaning set forth in Section 4.12(c).

 

(bbbb) “Threshold Amount” means One Hundred Thousand Dollars ($100,000).

 

(cccc) “To the knowledge” or “knowledge” of a party (or similar words or phrases) shall mean the actual knowledge, of (a) with respect to the Buyer, the managers, directors and officers of the Buyer, and (b) with respect to the Seller, the Company or the Company Subsidiaries, the managers, directors and officers of the Seller, the Company and the Company Subsidiaries.

 

     
 

 

1.2 Additional Terms . Other capitalized terms used in this Agreement but not defined in Section 1.1 shall have the meanings ascribed to them wherever such terms first appear in this Agreement, or, if no meanings are so ascribed, the meanings customarily associated with such terms.

 

1.3 Rules of Interpretation .

 

(a) The singular includes the plural and the plural includes the singular.

 

(b) The word “or” is not exclusive.

 

(c) A reference to a Person includes its permitted successors and permitted assigns.

 

(d) Accounting terms have the meanings assigned to them by GAAP, as applied by the accounting entity to which they refer.

 

(e) The words “include,” “includes” and “including” are not limiting.

 

(f) A reference in a document to an Article, Section, Exhibit, Schedule, Annex or Appendix is to the Article, Section, Exhibit, Schedule, Annex or Appendix of such document unless otherwise indicated. Exhibits, Schedules, Annexes or Appendices to any document shall be deemed incorporated by reference in such document.

 

(g) References to any document, instrument or agreement (i) shall include all exhibits, schedules and other attachments thereto, (ii) shall include all documents, instruments or agreements issued or executed in replacement thereof, and (iii) shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, modified and supplemented from time to time and in effect at any given time.

 

(h) References to any statute or statutory provision include a reference to that statute or statutory provision as amended, consolidated or replaced from time to time (whether before or after the date of this Agreement) and include subordinate legislation made under the relevant statute or statutory provision.

 

(i) The words “hereof,” “herein” and “hereunder” and words of similar import when used in any document shall refer to such document as a whole and not to any particular provision of such document.

 

(j) References to “days” shall mean calendar days, unless the term “Business Days” shall be used. References to a time of day shall mean such time in Lexington, Kentucky, unless otherwise specified.

 

(k) The Acquisition Documents are the result of negotiations among, and have been reviewed by, Buyer and the Seller. Accordingly, the Acquisition Documents shall be deemed to be the product of all parties thereto, and no ambiguity shall be construed in favor of or against any party.

 

     
 

 

ARTICLE 2
Purchase and Sale

 

2.1 Purchase of the Interests . Subject to the terms and conditions of this Agreement, Seller hereby agrees to sell, transfer and deliver to Buyer, and Buyer hereby agrees to purchase from Seller, the Interests.

 

2.2 Purchase Price . The total purchase price (the “Purchase Price”) for the Interests shall be Twelve Million Five Hundred Thousand Dollars ($12,500,000): of which

 

(a) subject to settlement of certain property Taxes as set forth in Section 2.3, Eleven Million Dollars ($11,000,000), to be paid in cash in full by Buyer to Seller at Closing (the “Closing Payment”), and

 

(b) subject to offset pursuant to Section 10.5(e), the remainder shall be paid in ten (10) equal monthly installments of $150,000 on the 20 th day of each calendar month beginning on September 20, 2016 (the “Deferred Payments”).

 

2.3 Property Taxes . Buyer and Seller agree that prepaid property Taxes and unmined mineral Taxes of the Company shall be considered to be pro-rated as of the Closing Date. Notwithstanding the foregoing, Buyer and Seller agree that the Closing Payment will be reduced by Five Hundred Thousand Dollars ($500,000) in full settlement of any known or unknown prepaid property and unmined mineral Taxes that are unpaid as of the Closing Date. Any such Taxes that are or shall become due on or following the Closing Date shall be the sole responsibility of the Buyer, without recourse to the Seller.

 

2.4 Accounts Receivable . Buyer and Seller agree that all receivables of the Company shall be transferred with the Interest to the Buyer at the Closing.

 

ARTICLE 3
Representations and Warranties of Buyer

 

Buyer represents and warrants to the Seller, as of the date hereof and as of the Closing Date, as follows:

 

3.1 Organization, Authority . Buyer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. Buyer has all requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Buyer, the performance by Buyer of its obligations hereunder and the consummation by Buyer of the transactions contemplated hereby have been duly authorized pursuant to and in accordance with the laws governing Buyer and its Charter Documents, and no other proceedings on the part of Buyer are necessary to authorize such execution, delivery and performance. This Agreement has been duly and validly executed and delivered by Buyer and, assuming the due authorization, execution and delivery of this Agreement by each of the other parties hereto, this Agreement constitutes a valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to or affecting the rights of creditors or (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).

 

     
 

 

3.2 No Conflicts . The execution, delivery and performance by Buyer of this Agreement does not, and the performance by Buyer of its obligations under this Agreement and the consummation of the transactions contemplated hereby do not and will not conflict with or result in a violation of, or constitute a breach or default under, (a) any of the terms, conditions or provisions of the Charter Documents of Buyer, (b) any material Contract, permit or other instrument to which Buyer is subject, or (c) any material Law or Order to which Buyer is subject.

 

3.3 Approvals, Consents and Notices . No consent, approval, waiver, authorization, notice or filing with any Governmental or Regulatory Authority is required to be made or obtained in connection with the execution, delivery and performance by Buyer of this Agreement or the consummation of the transactions contemplated hereby, except where the failure to obtain or deliver any such consent, approval, waiver, authorization, notice or filing would not, individually or in the aggregate, have a material adverse effect on the ability of Buyer to consummate the transactions contemplated by this Agreement.

 

3.4 Financing . Buyer has or will have funds available to them sufficient (a) to pay the Purchase Price and (b) to pay all related fees and expenses and otherwise to consummate the transactions contemplated by this Agreement.

 

3.5 Brokers’ and Finders’ Fees . Buyer has not entered into and will not enter into any Contract, agreement, arrangement or understanding with any Person which will result in the obligation of Buyer to pay any finder’s fee, brokerage commission, or similar payment in connection with the transactions contemplated hereby.

 

3.6 Litigation . There are no claims, actions, suits, proceedings or investigations pending or, to the knowledge of Buyer, threatened against Buyer any of its Affiliates or any properties or rights of Buyer or any of its Affiliates, before any court or other Governmental or Regulatory Authority, which, individually or in the aggregate, has had or would have a material adverse effect on, or otherwise materially impair or materially delay, Buyer’s ability to consummate the transactions contemplated by this Agreement. Neither Buyer nor any of its Affiliates, nor any properties or rights of Buyer or any of its Affiliates, is subject to any Order, which, individually or in the aggregate, has had or would have a material adverse effect on, or otherwise materially impair or materially delay, Buyer’s ability to consummate the transactions contemplated by this Agreement.

 

3.7 Applicant Violator System . Neither Buyer, nor any Person “owned or controlled” by Buyer, nor to the knowledge of Buyer, any Person that “owns or controls” Buyer, has been notified in writing by the U.S. Office of Surface Mining or the agency of any state administering the Surface Mining Control and Reclamation at (30 U.S.C. §§ 1201 et seq.), or any comparable state statute, that it is: (a) ineligible to receive surface mining permits; or (b) under investigation to determine whether its eligibility to receive such permits should be revoked, i.e., “permit blocked.” As used herein, the terms “own,” “owner,” or “ownership” and “control” or “controller” shall be defined as set forth in 30 C.F.R. § 701.5.

 

     
 

 

ARTICLE 4
Representations and Warranties of Seller

 

Except as set forth in the corresponding sections or subsections of the disclosure letter delivered to Buyer by the Seller (the “Company Disclosure Letter”) (it being agreed that disclosure of any item in any section or subsection of the Company Disclosure Letter shall be a deemed disclosure with respect to any other section or subsection to which the relevance of such item is reasonably apparent), the Seller hereby represents and warrants to Buyer that:

 

4.1 Organization . The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. The subsidiaries of the Company (the “Company Subsidiaries”) are all set forth on Schedule 4.1 of the Company Disclosure Letter, and are duly organized, validly existing and in good standing under the laws of the states set forth for each Company Subsidiary on Schedule 4.1 of the Company Disclosure Letter. The Company and the Company Subsidiaries are duly qualified to do business as foreign entities and are in good standing in each jurisdiction where the failure to so qualify would have a Company Material Adverse Effect. The Company has made available to Buyer complete and correct copies of the Company’s and the Company Subsidiaries’ Charter Documents , each as amended to the date of this Agreement, and each as so delivered is in full force and effect. Each of the Company and the Company Subsidiaries has all corporate, limited liability company or similar powers and authority required to own, lease and operate its respective properties and carry on its business as now conducted.

 

4.2 Capitalization .

 

(a) All of the Interests, as of the date of this Agreement, are held by Seller. The Interests are not certificated. The Company Subsidiaries have the capital stock and other equity interests outstanding as set forth on Schedule 4.2(a) of the Company Disclosure Letter, all of which capital stock and other equity interests are held by the Company. All of the Interests and all of the capital stock and other equity interests of the Company Subsidiaries have been duly authorized and validly issued, and are fully paid and non-assessable. None of the Interests or the capital stock or other equity interests of the Company Subsidiaries has been issued in violation of any federal, state or other Law pertaining to the issuance of securities or in violation of any preemptive or similar right, purchase option, call or right of first refusal or similar right.

 

     
 

 

(b) There are not issued, reserved for issuance or outstanding: (i) units, membership interests, shares of capital stock or other voting securities or equity interests of the Company or the Company Subsidiaries, except as set forth in Schedule 4.2(b) of the Company Disclosure Letter; (ii) securities of the Company or any of the Company Subsidiaries convertible into or exchangeable or exercisable for units, membership interests, shares of capital stock or voting securities or equity interests of the Company or any Company Subsidiary; (iii) options, warrants, agreements, calls, conversion rights, exchange rights, preemptive rights or other rights to subscribe for, purchase or otherwise acquire from the Company or any of the Company Subsidiaries, or obligations of the Company or any of the Company Subsidiaries to issue, any units, membership interests or shares of capital stock, voting securities, equity interests or securities convertible into or exchangeable or exercisable for units, membership interests or shares of capital stock, voting securities or other equity interests of the Company or any Company Subsidiary; or (iv) stock appreciation rights, “phantom” stock rights, performance units, other equity equivalent interests in the ownership or earnings of the Company or other similar rights in respect of the Company (the securities described in clauses (i) through (iv) are collectively referred to herein as the “Company Securities”). There are no outstanding obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any Company Securities. There are no preemptive rights or other rights or obligations of any kind which obligate the Company or any of the Company Subsidiaries to sell, issue or deliver, or cause to be sold, issued or delivered, any Company Securities. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is bound relating to the voting or registration of any units, shares of capital stock or other equity interests of the Company or any of the Company Subsidiaries. Except as set forth in Schedule 4.2(b) of the Company Disclosure Letter, none of the Interests or the equity interests in the Company Subsidiaries is subject to any voting trust, transfer restrictions or other similar arrangements.

 

(c) Except as set forth in Schedule 4.2(c) of the Company Disclosure Letter, since the Balance Sheet Date, (i) the Company has not declared or paid any dividend or distribution in respect of any Company Securities, and (ii) neither the Company nor any of the Company Subsidiaries has issued, sold or repurchased any Company Securities, and their respective boards of managers or boards of directors, as applicable, have not authorized any of the foregoing.

 

(d) No bonds, debentures, notes or other indebtedness having the right to vote (or convertible into, or exchangeable or exercisable for, securities having the right to vote) on any matters on which Seller may vote are outstanding.

 

4.3 Title to Equity Interests in the Company Subsidiaries . Except as set forth on Schedule 4.3 of the Company Disclosure Letter, the Company has, and at the Closing will have, good title to all equity interests in the Company Subsidiaries, free and clear of all Encumbrances and free and clear of any restriction on the right to vote, sell or otherwise dispose of such equity interests. There are no outstanding purchase agreements, options, warrants, or other rights of any kind whatsoever entitling any Person to acquire or purchase any interest in the Company Subsidiaries. Neither the Company nor any of the Company Subsidiaries owns, directly or indirectly, any capital stock of, or other voting securities or equity interests in, any Person except for the Company Subsidiaries.

 

     
 

 

4.4 Authority; No Conflict .

 

(a) The Company has all requisite power and authority and has taken all requisite limited liability company action in order to execute, deliver and perform its obligations under this Agreement and under the other Acquisition Documents and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by each of the other parties to this Agreement, this Agreement constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to or affecting the rights of creditors or (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) .

 

(b) Except as set forth on Schedule 4.4(b) of the Company Disclosure Letter, the execution, delivery and performance by the Company of this Agreement and the other Acquisition Documents do not and will not (i) conflict with or result in any violation of, constitute a breach or default (or an event that with notice or the lapse of time on both would become a default) under, or create in any Person the right to terminate, modify, cancel or require any notice under, (A) any term of the certificate of formation or limited liability company agreement of the Company or the comparable Charter Documents of the Company Subsidiaries, (B) any material Contract, agreement, permit or other instrument to which the Company, any of the Company Subsidiaries or any of their respective assets is subject, or (C) any material Law or Order to which the Company or any of the Company Subsidiaries or any of their respective assets is subject, (ii) result in the creation of any material Encumbrance upon any of the properties or assets (whether real or personal, tangible or intangible) of the Company or any of the Company Subsidiaries, or (iii) trigger, or otherwise create in any Person, any contractual, statutory or other appraisal rights.

 

4.5 Financial Statements . The Company has previously made available to Buyer true and complete copies of the following financial statements (collectively, the “Financial Statements”): (a) audited, consolidated balance sheets and statements of income, changes in member’s equity and cash flows as of and for the year ended December 31, 2015, all of which are contained in and are a part of the consolidated financials of Rhino Resource Partners LP, and (b) an unaudited internally-prepared interim, consolidated balance sheet (the “Balance Sheet”) and statements of income, changes in member’s equity and cash flows as of and for the quarterly period ended July 31, 2016. The Financial Statements: (i) were prepared in accordance with GAAP consistently applied, except, in the case of interim Financial Statements, for the absence of notes thereto and year-end adjustments and accruals made in the ordinary course of business consistent with past practice and (ii) present fairly, in all material respects, the financial position and results of operations of the Company and the Company Subsidiaries, on a consolidated basis, at the dates and for the periods indicated therein, in each case in accordance with GAAP.

 

4.6 Absence of Material Change . Except as set forth in Schedule 4.6 of the Company Disclosure Letter, since the Balance Sheet Date, the Business has been conducted in the ordinary course of business and no Company Material Adverse Effect, or event, condition, change or effect that would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, has occurred. In addition to and without limiting the generality of the foregoing, except as set forth on Schedule 4.6 of the Company Disclosure Letter, since the Balance Sheet Date, neither the Company nor any of the Company Subsidiaries has:

 

     
 

 

(a) amended, or proposed any amendment to, the Company’s certificate of formation or limited liability company agreement or the comparable Charter Documents of any Company Subsidiary;

 

(b) (i)(A) declared, set aside or paid any dividend or other distribution (whether in cash, stock, other equity interests or other property or any combination thereof) with respect to its membership units, capital stock or other equity interests, except to the Company or another wholly-owned Company Subsidiary, or (B) redeemed, purchased or otherwise acquired, directly or indirectly, any of its membership units, capital stock or other securities; (ii) issued, sold, pledged, disposed of or encumbered, or authorized the issuance, sale, pledge, disposal or Encumbrance of, or offered to issue, sell, pledge, dispose of or encumber any (A) additional membership units or shares of its capital stock or other equity interests, (B) securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any membership units or shares of its capital stock or other equity interests or securities convertible into or exchangeable for any membership units or shares of its capital stock or other equity interests, or (C) of its other securities; or (iii) split, combined or reclassified, or amended any of the terms of, any of its outstanding membership units, capital stock or other equity interests;

 

(c) acquired or agreed to acquire or agreed to be acquired by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, (i) any Person or business or division thereof or (ii) any material assets or rights, except, with respect to this clause (ii), (A) purchases of inventory, equipment and supplies in the ordinary course of business consistent with past practice or (B) other purchases of assets required by existing Contracts as in effect as of the date hereof;

 

(d) entered into, amended or otherwise modified in any material respect or terminated (or consented to the termination of) any Company Contract, or any Contract that, if in effect as of the date hereof, would constitute a Company Contract, or waived, released or assigned any material rights or material claims thereunder;

 

(e) transferred, leased, licensed, sold, mortgaged, pledged, disposed of or otherwise encumbered or subjected to any lien any material assets (tangible or intangible, real or personal), other than (i) as required by existing Contracts as in effect as of the date hereof, or (ii) sales of inventory in the ordinary course of business, consistent with past practice and on arm’s length terms;

 

(f) hired or agreed to hire any new or additional officers;

 

(g) except as required under the terms of any existing Plan or Contract, or to comply with applicable Law, (i) adopted, entered into, terminated, amended or increased the amount, or accelerated the payment or vesting, of any benefit or award or amount payable under any Plan or Contract for the current or future compensation, benefit or welfare of any manager, officer or employee, (ii) materially increased in any manner the compensation or fringe benefits of, or paid any bonus (other than customary annual bonuses) to any manager, officer or employee, (iii) other than benefits accrued through the date hereof, paid any material benefit, including any material severance or termination pay, not provided for under any Plan, or (iv) made any grant or award to any manager, director, officer or employee of stock options, stock appreciation rights, stock-based or stock-related awards, performance units or restricted stock, or similar rights or any removal of existing restrictions in any Plans or Contracts or awards made thereunder;

 

     
 

 

(h) (i) redeemed, repurchased, defeased, incurred, assumed or otherwise become liable for, or modified the terms of, any indebtedness for money borrowed, other than redemptions, repurchases or defeasances at stated maturity and any required amortization payments and mandatory prepayments, in each case in accordance with the terms of the instrument governing such indebtedness as in effect on the date hereof and other than intercompany indebtedness; (ii) voluntarily incurred, assumed or otherwise become liable for, or modified, any other material indebtedness or other material liability other than intercompany indebtedness; (iii) assumed, guaranteed, endorsed or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person; or (iv) made any loans, advances or capital contributions to, or investments in, any other Person, other than, with respect to this clause (iv), (A) as required by existing Contracts as in effect as of the date hereof, (B) solely between or among the Company and the Company Subsidiaries, or (C) customary loans or advances to employees in accordance with past practice;

 

(i) authorized, made or committed to any capital expenditures in excess of $250,000, in the aggregate, except for (i) expenditures required by existing Contracts as in effect as of the date hereof, and (ii) expenditures made in response to any emergency;

 

(j) adopted or effected a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;

 

(k) instituted, settled, paid, discharged or otherwise compromised any actions, suits, proceedings, investigations or other claims pending or threatened before any arbitrator, court or other Governmental or Regulatory Authority involving a conduct remedy or injunctive or similar relief or a restrictive impact on the Business or the payment of monetary damages or the provision of goods or services, or any combination of the foregoing, by the Company or any of the Company Subsidiaries of any amount or value exceeding $100,000 in the aggregate, other than the settlement of claims, liabilities or obligations reserved against on the Company Balance Sheet for amounts not in excess of the applicable reserves;

 

(l) (i) settled or compromised any material Tax claim, audit or assessment, (ii) made or changed any material Tax election, changed any annual Tax accounting period, or adopted or changed any method of Tax accounting, (iii) amended any material Tax Returns or filed claims for material Tax refunds, or (iv) entered into any material closing agreement, surrendered in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consented to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or any of the Company Subsidiaries;

 

(m) changed any of the accounting methods, principles or practices used by it unless required by GAAP; or

 

     
 

 

(n) entered into an agreement, contract, commitment or arrangement to do any of the foregoing, or authorized, recommended, proposed or announced an intention to do any of the foregoing.

 

4.7 Tax Matters . Subject to and excluding in all respects the prepaid property Taxes and unmined mineral Taxes of the Company, which are addressed and settled pursuant to Section 2.3 hereof:

 

(a) Except as described on Schedule 4.7(a) of the Company Disclosure Letter: (i) the Company and the Company Subsidiaries have filed all material Tax Returns that they were required to file; (ii) all such Tax Returns, as amended, are correct and complete in all material respects; (iii) all material Taxes owed by the Company or any of the Company Subsidiaries (whether or not shown on any Tax Return) have been paid when due; (iv) neither the Company nor any of the Company Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return; (v) no claim, as to which the Company or any of the Company Subsidiaries has knowledge based upon personal contact with any agent of such Governmental or Regulatory Authority, has ever been made by a Governmental or Regulatory Authority in a jurisdiction where the Company or any of the Company Subsidiaries does not file Tax Returns that it is or may be subject to taxation by that jurisdiction; and (vi) there are no material Encumbrances on any of the assets of the Company or any of the Company Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax other than Encumbrances arising in the ordinary course with respect to any Tax not yet due.

 

(b) The Company and the Company Subsidiaries have withheld and paid all material Taxes required to have been withheld or paid in connection with amounts paid or owing to any employee, creditor, independent contractor, or other third party, and the Company and the Company Subsidiaries have collected and paid all material Taxes required to have been collected and paid in connection with any amounts received from any customer or other third party.

 

(c) There is no investigation, litigation, dispute or claim concerning any material Taxes of the Company or any of the Company Subsidiaries either: (i) claimed or raised by any Governmental or Regulatory Authority; or (ii) as to which the Company or any of the Company Subsidiaries has knowledge based upon personal contact with any agent of such Governmental or Regulatory Authority. Schedule 4.7(c) of the Company Disclosure Letter: (x) lists all material categories of federal, state, local, and foreign Tax Returns filed with respect to the Company or any of the Company Subsidiaries for taxable periods ended on or after December 31, 2015; (y) indicates Tax Returns of the Company or any of the Company Subsidiaries for taxable periods ended on or after December 31, 2015 that have been audited by a Governmental or Regulatory Authority; and (z) indicates Tax Returns of the Company or any of the Company Subsidiaries that currently are the subject of an audit by a Governmental or Regulatory Authority. The Company has delivered or made available to Buyer correct and complete copies of all Tax Returns filed by or on behalf of the Company or any of the Company Subsidiaries and all examination reports and statements of deficiency assessed against or agreed to by the Company or any of the Company Subsidiaries, in each case for any Tax period ending on or after December 31, 2015.

 

     
 

 

(d) Except as described on Schedule 4.7(d) of the Company Disclosure Letter: (i) neither the Company nor any of the Company Subsidiaries has waived or extended any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency, and (ii) no power of attorney with respect to any Taxes has been executed or filed with any Governmental or Regulatory Authority.

 

(e) Neither the Company nor any of the Company Subsidiaries has made any payments, is obligated to make any payments, or is party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code Section 162(a)(1) or 404 or any corresponding provision of state or local law.

 

(f) Except as set forth on Schedule 4.7(f) of the Company Disclosure Letter, the Company and the Company Subsidiaries will not be required, as a result of a change in method of accounting for a taxable period ending on or prior to the Closing Date, to include any adjustment to taxable income for any taxable period (or portion thereof) ending after the Closing Date. Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of: (i) any “closing agreement” as described in Code Section 7121 (or any corresponding provision of foreign, state or local Law); (ii) any sale occurring on or before the Closing Date that is accounted for under the “installment method” as described in Code Section 453 (or any corresponding provision of foreign, state or local Law); or (iii) any prepaid amount received on or prior to the Closing Date.

 

(g) Neither the Company nor any of the Company Subsidiaries is a party to, bound by or has any material Liability under any Tax allocation, Tax-sharing, Tax indemnification or similar agreements.

 

(h) Neither the Company nor any of the Company Subsidiaries is or has been a member of any affiliated, consolidated, combined or unitary group with respect to Taxes or has any material Liability for unpaid Taxes with respect thereto. Neither the Company nor any of the Company Subsidiaries has any material Liability for Taxes of any Person (other than the Company or any of the Company Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any comparable provision of local, state or foreign Law), as a transferee or successor, by Contract, or otherwise.

 

(i) For all Pre-Closing Tax Periods, the Company has been classified as a disregarded entity for federal income purposes and each Company Subsidiary has been classified as a disregarded entity for federal income tax purposes.

 

(j) All Tax elections that are in effect with respect to Taxes affecting the Company or the Company Subsidiaries as of the date hereof have been made on Tax Returns filed by Company or the Company Subsidiaries and delivered to Buyer.

 

(k) None of the assets of the Company or any Company Subsidiary (i) is “tax exempt use property” within the meaning of Section 168(h) of the Code; (ii) is property that the Company or any Company Subsidiary is required to treat as being owned by any other Person pursuant to the safe-harbor lease provisions of former Section 168(f)(8) of the Code; or (iii) directly or indirectly secures any debt the interest on which is tax-exempt under Section 103(a) of the Code.

 

     
 

 

(l) Neither the Company nor any Company Subsidiary has agreed to make, or is required to make, any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise.

 

(m) The amount of the Company’s and the Company Subsidiaries’ liability for unpaid Taxes for all periods ending on or before the Balance Sheet Date does not, in the aggregate, exceed, in any material respects, the amount of accruals for Taxes (excluding reserves for deferred Taxes) reflected on the Financial Statements. The amount of the Company’s and the Company Subsidiaries’ liability for unpaid Taxes for all periods following the Balance Sheet Date shall not, in the aggregate, exceed, in any material respects, the amount of accruals for Taxes on the Company’s books (excluding reserves for deferred Taxes) as adjusted for the passage of time in accordance with the past custom and practice of the Company and the Company Subsidiaries (and which accruals shall not exceed, in any material respects, comparable amounts incurred in similar periods in prior years).

 

(n) Except for the persons listed on Schedule 4.7(n) of the Company Disclosure Letter, none of the Company’s owners is a “foreign person” as that term is used in Treasury Regulations Section 1.1445-2.

 

(o) Neither the Company nor any of the Company Subsidiaries has requested or is the subject of or bound by any private letter ruling, technical advice memorandum or similar ruling or memorandum with any Governmental or Regulatory Authority with respect to any material Taxes, nor is any such request outstanding.

 

(p) Neither the Company nor any of the Company Subsidiaries has been a party to, or a promoter of, a “reportable transaction” within the meaning of section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011-4(b).

 

4.8 Undisclosed Liabilities . Except for any Liabilities arising out of or related to the matters set forth on Schedule 4.11 of the Company Disclosure Letter, neither the Company nor any of the Company Subsidiaries has any Liabilities other than Liabilities that (a) are reflected or recorded on the Company Balance Sheet (including in the notes thereto), or (b) were incurred since the Balance Sheet Date in the ordinary course of business, or (c) are incurred in connection with the transactions contemplated by this Agreement, or (d) do not exceed $50,000 in the aggregate.

 

4.9 Approvals, Consents and Notices . No consent, approval, waiver or authorization by or from, or notice or filing with, any Governmental or Regulatory Authority or other Person is required to be made or obtained in connection with the execution, delivery and performance by the Company of this Agreement or the consummation of the transactions contemplated hereby, except as set forth on Schedule 4.9 of the Company Disclosure Letter.

 

     
 

 

4.10 Contracts . Except for the Contracts listed on Schedule 4.10 of the Company Disclosure Letter (the “Company Contracts”), neither the Company nor any Company Subsidiary is a party to or otherwise bound by: (a) any Contract which could reasonably be expected to involve future payments by or to the Company or a Company Subsidiary of more than Two Hundred and Fifty Thousand Dollars ($250,000) in any twelve (12) month period and which are not cancelable by the Company or the Company Subsidiaries, as applicable, on less than sixty (60) days’ notice without penalty or payment in connection with such termination; (b) any employment, consulting, severance, bonus, change of control, retention, incentive or similar Contract, including without limitation any Contract providing for severance or incentive payments to employees in the event of a sale or change in control of the Company, with any current or former officer, director, manager or employee of the Company or any of the Company Subsidiaries; (c) any Contract providing for indemnification or any guaranty by the Company or any Subsidiary thereof, in each case relating to any Liability that could be in excess of Two Hundred Fifty Thousand Dollars ($250,000), other than any guaranty by the Company or any of the Company Subsidiaries of any of the obligations of the Company or any of the Company Subsidiaries; (d) any Contract that purports to limit in any material respect the right of the Company or any of the Company Subsidiaries (i) to engage in any line of business, or (ii) to compete with any Person or operate in any geographical location; (e) any Contract that contains any provision that requires the purchase of all of the Company’s or any of the Company Subsidiaries’ requirements for a given product or service from a given third party, which product or service is material to the Company and the Company Subsidiaries, taken as a whole; (f) any Contract that obligates the Company or any of its Subsidiaries (or, at any time after the Closing, Buyer or any of its Subsidiaries) to conduct business on an exclusive basis with any third party; (g) any partnership, joint venture or similar Contract; (h) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of Two Hundred Fifty Thousand Dollars ($250,000), other than loans to direct or indirect wholly-owned Subsidiaries of the Company; or (i) any Contract which is not otherwise described in clauses (a)-(h) above that is material to the Company and the Company Subsidiaries, taken as a whole. The Company has previously provided Buyer or its representatives with complete and accurate copies of all written Company Contracts and there are no amendments to or modifications of, or significant agreements of the parties relating to, any such Company Contract which have not been disclosed to Buyer. Each Company Contract is valid and binding on the Company (or the Company Subsidiary that is a party thereto), is in full force and effect. The Company (or such Company Subsidiary) has performed all material obligations required to be performed by it to date under each Company Contract. Except as set forth in Schedule 4.10 of the Company Disclosure Letter, there is no material violation or default under (nor does there exist any condition which with the passage of time or the giving of notice or both would result in such a material violation or default under) any Company Contract by the Company or any of the Company Subsidiaries or, to the knowledge of the Company, any other party thereto. Neither the Company nor any of the Company Subsidiaries has received written notice from a party to any of the Company Contracts that such party intends to terminate, other than in accordance with the terms of such Company Contract, its normal business with the Company as a result of transactions contemplated by this Agreement or otherwise.

 

     
 

 

4.11 Litigation and Pending Proceedings . Except as set forth on Schedule 4.11 of the Company Disclosure Letter, there are no material claims, actions, suits, proceedings, investigations, charges or complaints, pending or, to the knowledge of the Company, threatened against the Company or any of the Company Subsidiaries, any properties or rights of the Company or any of the Company Subsidiaries, or any officer, director or manager of the Company or any of the Company Subsidiaries in their capacities as such, in each case, before any court or other Governmental or Regulatory Authority. Except as set forth on Schedule 4.11 of the Company Disclosure Letter, neither the Company, nor the Company Subsidiaries, nor any of the Company’s or any of the Company Subsidiaries’ properties is subject to any material Order.

 

4.12 Real Property .

 

(a) Owned Real Property . Schedule 4.12(a) of the Company Disclosure Letter contains a complete and accurate list of all deeds for interests in real property, including mineral rights, mining rights, surface estates, rights of way, options and other interests in real property and easements owned by the Company or any Company Subsidiary (the instruments identified on Schedule 4.12(a) of the Company Disclosure Letter are hereinafter referred to as the “Deeds,” and the property and the property interests and rights conveyed therein, less the property described in the out-conveyances listed on Schedule 4.12(a) of the Company Disclosure Letter, are hereinafter referred to as the “Owned Real Property”).

 

(b) Leased Real Property . Schedule 4.12(b) of the Company Disclosure Letter hereto is a true and complete list of all interests in real property, including mineral interests, mining rights, and surface estates leased or licensed by the Company or any of the Company Subsidiaries (the leases and other Contracts identified on Schedule 4.12(b) of the Company Disclosure Letter are hereinafter referred to as the “Leases,” and the property and property rights granted therein are hereinafter referred to as the “Leased Real Property”). Schedule 4.12(b) of the Company Disclosure Letter also provides an identification of each of the Leases (whether a lease or sublease) (including parties and date). The Leased Real Property and the Owned Real Property are referred to herein collectively as the “Real Property”.

 

(c) Third Party Leases . Schedule 4.12(c) of the Company Disclosure Letter is a true and complete list of all documents pursuant to which the Company or any of the Company Subsidiaries has leased or subleased or otherwise granted any real property rights or interests to third parties, including mineral interests, mining rights, surface estates, rights of way, easements, options and other real property rights or interests, or pursuant to which the Company or any of the Company Subsidiaries may be entitled to receive income from any Person as a result of the use or occupancy of any real property by such Person (the leases, subleases and other Contracts identified on Schedule 4.12(c) of the Company Disclosure Letter are hereinafter referred to as the “Third Party Leases,” and the property and property rights granted therein are hereinafter referred to as the “Out Leased Property”).

 

(d) Copies Furnished . The Company has furnished or made available to Buyer true and complete copies of all of the Deeds, Leases, and Third Party Leases, including all amendments thereto, and true and complete copies of all title insurance policies, title opinions, abstracts, maps, surveys, lease files and conveyance files that, to the knowledge of the Company, are in the possession of the Company relating to the Real Property.

 

     
 

 

(e) Lease Defaults . Except as set forth on Schedule 4.12(e) of the Company Disclosure Letter, (i) there is no past due payment or other material default (or event that with notice or the lapse of time or both would become such a material default) by or with respect to the Company or the Company Subsidiaries with respect to the Leases or Third Party Leases, or to the knowledge of the Company, by or with respect to any other parties to the Leases or Third Party Leases; (ii) the Leases and Third Party Leases are in full force and effect with respect to the Company and the Company Subsidiaries and, to the knowledge of the Company, the other parties thereto; and (iii) the transactions contemplated by this Agreement or the other Acquisition Documents will not constitute a breach or default (or event that with notice or the lapse of time or both would constitute a breach or default) under the terms of any of the Leases.

 

(f) Encroachments . To the knowledge of the Company and except for Permitted Encumbrances, (i) there are no material encroachments on the Real Property by improvements or structures located on property adjoining the Real Property or upon any easements located on the Real Property, and (ii) no part of any improvements or structures located on the Real Property materially encroaches on any property adjacent to the Real Property.

 

(g) No Additional Property Interests . Other than the Real Property, there are no other interests in real property, including mineral interests, mining and surface rights, easements, rights-of-way or options leased by the Company or any of the Company Subsidiaries, other contractual rights in or to any real property held by the Company or any of the Company Subsidiaries, or rights by which the Company or any of the Company Subsidiaries may be entitled to receive income from any Person as a result of the use or occupancy of any real property by such Person.

 

(h) Condemnation and Options .

 

(i) Except as set forth on Schedule 4.12(h)(i) of the Company Disclosure Letter, there is no condemnation or eminent domain proceeding of any kind pending or, to the knowledge of the Company, threatened against any of the Real Property, or any portion thereof.

 

(ii) Except as set forth on Schedule 4.12(h)(ii) of the Company Disclosure Letter, there are no outstanding options, rights of first refusal or similar rights granted by the Company or any of the Company Subsidiaries to any third party to purchase the Owned Real Property or any portion thereof or interest therein.

 

(i) Title to Real Property .

 

(i) Except as expressly provided herein, the Company makes absolutely no warranty regarding the Company’s title to the Owned Real Property, except for a covenant of special warranty that the Company holds title to the Owned Real Property free and clear of Encumbrances (other than Permitted Encumbrances) created by, through, or under the Company and not otherwise.

 

(ii) Except as to matters shown in the lease files, property files, and abstracts in the possession of the Company and made available to Buyer, and except for the Permitted Encumbrances, (x) the Company has good and marketable title to the Leases without regard to Lessor’s title to such Leased Real Property and (y) to the knowledge of the Company, each of the lessors under the Leases of the Leased Real Property has good and marketable title to the Leased Real Property, subject to the Lease to which such lessor is a party.

 

     
 

 

(iii) The Company makes no representation or warranty, express or implied, as to quantity, quality, or recoverability of any coal reserves underlying the Real Property or the condition of any improvements, structures or facilities located thereon. BUYER ACCEPTS THE REAL PROPERTY AND ANY IMPROVEMENTS OR FACILITIES IN, ON, OR UNDER THE REAL PROPERTY AS IS, WHERE IS, FREE OF ANY REPRESENTATION OR WARRANTY (EXPRESS OR IMPLIED) WITH REGARD TO THE EXISTENCE, MINEABILITY, WASHABILITY, VOLUME, LOCATION, QUANTITY OR QUALITY OF ANY COAL RESERVE OR CONDITION OF ANY IMPROVEMENTS, STRUCTURE OR FACILITY; provided, however, the Company has made available to Buyer true and complete copies of all relevant studies in the Company’s possession relating to the quality and quantity of the coal reserves in, on or under the Real Property.

 

4.13 Personal Property . A true and complete list of all items of machinery, equipment, vehicles, and other tangible personal property owned or leased by the Company or the Company Subsidiaries and having a book value in excess of $20,000 is set forth on Schedule 4.13 of the Company Disclosure Letter (the “Personal Property”). The Company and the Company Subsidiaries own or lease, as the case may be, the Personal Property, free and clear of all Encumbrances other than Permitted Encumbrances. Schedule 4.13 of the Company Disclosure Letter identifies all Personal Property that is leased to third parties by the Company.

 

4.14 Mine Safety and Health . Except as set forth on Schedule 4.14 of the Company Disclosure Letter, the Company’s Operations are and have been, since March 17, 2016, in compliance, in all material respects, with all applicable health and safety Laws (including, without limitation, the Federal Coal Mine Health and Safety Act of 1969, as amended, the Federal Mine Safety and Health Act of 1977, as amended, and the Mine Improvement and New Emergency Response Act of 2006, and similar state Laws).

 

4.15 Banks, Managers and Officers . Schedule 4.15 of the Company Disclosure Letter sets forth a list of all banks with which the Company or any of the Company Subsidiaries has an account, deposit, certificate of deposit, or safe deposit box along with identifying numbers and the names of all Persons authorized to draw thereon or have access thereto.

 

4.16 Permits and Bonds .

 

(a) All material Permits held by the Company or the Company Subsidiaries are listed on Schedule 4.16(a)(i) of the Company Disclosure Letter (the “Company Permits”). True and complete copies of each Company Permit have been made available to Buyer. Except as set forth on Schedule 4.16(a)(ii) of the Company Disclosure Letter, no action or claim is pending, or, to the knowledge of the Company, threatened, to revoke, suspend, modify, alter, amend or terminate any Company Permit, or to declare any Company Permit invalid in any respect.

 

     
 

 

(b) Except as set forth on Schedule 4.16(b) of the Company Disclosure Letter, the Company’s Operations are and have been, since March 17, 2016, in compliance, in all material respects, with the Company Permits, the Surface Mining Control and Reclamation Act of 1977, as amended, and similar state Laws, and in accordance with reclamation plans submitted with respect to the Company Permits, including any such variances, deferrals, or temporary cessations as may have since been granted or otherwise be applicable thereto.

 

(c) The Company and the Company Subsidiaries have posted all reclamation and performance bonds required to be posted in connection with the Company’s Operations. All reclamation and performance bonds posted by the Company or any of the Company Subsidiaries in connection with the Company’s Operations are listed on Schedule 4.16(c) of the Company Disclosure Letter (collectively, the “Bonds”). Except as set forth on Schedule 4.16(c) of the Company Disclosure Letter, no action or claim is pending or, to the knowledge of the Company, threatened to forfeit, collect, or otherwise draw upon any Bonds.

 

4.17 Intellectual Property . Set forth in Schedule 4.17 of the Company Disclosure Letter is a true and complete list of all trademarks, service marks, trade names, copyrights, patents, patent rights, logos, domain names and other material proprietary intellectual property rights owned by, or registered or applied for in the name of, the Company or the Company Subsidiaries or utilized in, and material to, the operation of the Business (the “Company’s Intellectual Property”). The Company has not received written notice that the Company’s Intellectual Property infringes the rights of any third party or is being infringed by any third party. There are no material actions or claims pending or, to the knowledge of the Company, threatened involving the Company’s Intellectual Property. There is no material restriction affecting the use or transfer of any of the Company’s Intellectual Property, and no license has been granted by the Company to any third party with respect thereto.

 

4.18 Applicant Violator System . Neither the Company, any of the Company Subsidiaries, nor any Person “owned or controlled” by the Company or any of the Company Subsidiaries, nor to the knowledge of the Company, any Person which “owns or controls” the Company or the Company Subsidiaries, has been notified in writing by the U.S. Office of Surface Mining or the agency of any state administering the Surface Mining Control and Reclamation Act (30 U.S.C. §§ 1201 et seq.), or any comparable state statute, that it is: (a) ineligible to receive additional surface mining permits; or (b) under investigation to determine whether their eligibility to receive such permits should be revoked, i.e., “permit blocked.” As used herein, the terms “own,” “owner,” or “ownership” and “control” or “controller” shall be defined as set forth in 30 C.F.R. § 701.5.

 

4.19 Insurance . Schedule 4.19 of the Company Disclosure Letter sets forth a true and complete list of all insurance policies maintained by or for the benefit of the Company or any of the Company Subsidiaries. All such policies are in full force and effect. The Company has not received written notice of cancellation or nonrenewal with respect thereto, and no event has occurred which would constitute a breach or default or permit termination, modification or acceleration of any such policy.

 

     
 

 

4.20 Labor Relations; Employee Benefit Plans .

 

(a) Except as set forth on Schedule 4.20(a) of the Company Disclosure Letter, (i) each of the Company and the Company Subsidiaries is and has been, since March 17, 2016, in compliance, in all material respects, with all applicable Laws, rules, regulations and orders respecting employment and employment practices, terms and conditions of employment, wages, hours or work and occupational safety and health and (ii) there is no labor slowdown, stoppage or lockout pending, or, to the knowledge of the Company, threatened against or affecting the Company or any of the Company Subsidiaries.

 

(b) Neither the Company nor any of the Company Subsidiaries (i) is a party to or bound by any collective bargaining or similar agreement with any union or other labor organization or is engaged in any labor negotiations with any labor union, or (ii) is obligated under any agreement to recognize or bargain with any labor organization or union on behalf of its employees.

 

(c) The Company does not know, or have any reasonable grounds to know, of any union organizational or representational activities underway among any of the Company’s or any of the Company Subsidiaries’ employees. Neither the Company nor any of the Company Subsidiaries has been charged or threatened with a charge of any unfair labor practice.

 

(d) Neither the Company nor any of the Company Subsidiaries has committed any violation of the WARN Act.

 

(e) Schedule 4.20(e) of the Company Disclosure Letter sets forth a true and complete list of all employees employed by the Company and the Company Subsidiaries, and such list correctly reflects their salaries, wages, other compensation, dates of employment and positions. No employee of the Company or any of the Company Subsidiaries is employed other than “at-will” or is subject to any non-compete, confidentiality or similar agreement, other than as set forth on Schedule 4.20(e) of the Company Disclosure Letter.

 

(f) There are no discrimination or harassment charges (relating to sex, age, religion, race, national origin, ethnicity, disability or veteran status) pending or, to the knowledge of the Company, threatened before any Governmental or Regulatory Authority against the Company or the Company Subsidiaries and, to the knowledge of the Company, there is no basis therefor.

 

(g) Except for Seller’s 401k, life insurance, and disability insurance, the Company has no pension, retirement, profit sharing, savings, stock option, restricted stock, severance, termination, bonus, fringe benefit, insurance, medical, education reimbursement or other employee benefit plan, including each “employee benefit plan” as defined in Section 3(3) of ERISA, in each case whether written or unwritten, which is or has been sponsored, maintained or contributed to or required to be contributed to by the Company or any of the Company Subsidiaries for the benefit of current or former employees, directors, or managers of the Company or any of the Company Subsidiaries.

 

     
 

 

4.21 Potential Competing Interests . Except as set forth on Schedule 4.21 of the Company Disclosure Letter, no officer, manager or, to the knowledge of the Company, other employee of the Company or any of the Company Subsidiaries has any direct or indirect interest in any entity which competes with, is a supplier, customer or sales agent of, or is engaged in any business of the kind being conducted by, the Company. Except as set forth on Schedule 4.21 of the Company Disclosure Letter, no officer, manager or, to the knowledge of the Company, other employee of the Company or any of the Company Subsidiaries has any interest, direct or indirect, in any Contract or agreement with, commitment or obligation of or to, or claim against, the Company or any of the Company Subsidiaries. No real or personal property in which any officer, manager or, to the knowledge of the Company, any other employee of the Company or the Company Subsidiaries has an interest is used by the Company or any of the Company Subsidiaries in the operation of the Business, or located on or at any premises used by the Company or the Company Subsidiaries in the Business.

 

4.22 Environmental Matters .

 

(a) Except as set forth on Schedule 4.22(a) of the Company Disclosure Letter, the Company’s Operations are in compliance, in all material respects, with all applicable Environmental Laws. Except as set forth on Schedule 4.22(a) of the Company Disclosure Letter, neither the Company nor any of the Company Subsidiaries has received notice of, or has knowledge of, any fact(s) which would constitute noncompliance with any Environmental Law that would reasonably be expected to result in a material Liability to the Company or any of the Company Subsidiaries.

 

(b) The Company has made available to Buyer true and complete copies of all information, including such studies, reports, correspondence, notices of violation or noncompliance, audits, analyses and test results in the possession, custody or control of the Company relating to the material noncompliance by the Company, the Company Subsidiaries or the Company’s Operations with any Environmental Laws or Permits within the previous two (2) years.

 

(c) Except as set forth on Schedule 4.22(c) of the Company Disclosure Letter, to the knowledge of the Company, no substance, chemical or waste (including, without limitation, asbestos, asbestos-containing material, lead paint, polychlorinated biphenyls (“PCBs”) and petroleum) that is designated or defined (either by inclusion in a list of materials or by reference to exhibited characteristics) as hazardous, toxic, dangerous or words of similar import, or as a pollutant or contaminant under any Environmental Laws, including, in each case, any constituent, raw material, product or by-product thereof (“Hazardous Substance”) has been released, produced, processed, generated, treated, stored, disposed of, used, handled or manufactured at or in, or transported, shipped or disposed of from, the Company’s Operations or the Real Property except in material compliance with Environmental Laws, and there have been no releases of any Hazardous Substance in, on, under, from or affecting the Company’s Operations or the Real Property, except as has not and would not reasonably be expected to result, individually or in the aggregate, in a material Liability to the Company or any other Company Subsidiaries.

 

(d) Except as set forth on Schedule 4.22(d) of the Company Disclosure Letter, none of the Company or the Company Subsidiaries has received from any Governmental or Regulatory Authority or other third party any written notice that any of them is or may be a potentially responsible party in respect of, or may otherwise bear liability for, any actual or threatened release of any Hazardous Substance at any site that is, has been or could reasonably be expected to be listed on the National Priorities List, the Comprehensive Environmental Response, Compensation and Liability Information System, the National Corrective Action Priority System or any similar or analogous federal, state, provincial, territorial, municipal, county, local or other domestic or foreign list, schedule, inventory or database of Hazardous Substance sites or facilities.

 

     
 

 

(e) Except as set forth on Schedule 4.22(e) of the Company Disclosure Letter, neither the Company nor any of the Company Subsidiaries has received any material written complaint, order, directive, claim, citation or notice by any Governmental or Regulatory Authority with respect to: (i) air emissions; (ii) spills, releases or discharges to soils or any improvements located thereon, surface water, ground water or the sewer, septic system or waste treatment, storage or disposal systems servicing the Real Property; (iii) noise emissions; (iv) solid or liquid waste disposal; (v) the use, generation, storage, transportation or disposal of Hazardous Substances; or (vi) other environmental, health or safety matters, affecting the Company or any of the Company Subsidiaries, any of their respective assets, any of the Real Property, any improvements located thereon or the business conducted thereon, or arising from the actions or omissions of the Company or any of the Company Subsidiaries.

 

(f) To the Company’s knowledge, except as set forth on Schedule 4.22(f) of the Company Disclosure Letter, there have not been and are now no underground storage tanks “owned” or “operated” (as defined by applicable Law) by the Company or any of the Company Subsidiaries or located on the Real Property.

 

(g) To the Company’s knowledge, except as set forth on Schedule 4.22(g) of the Company Disclosure Letter, neither the Company nor any of the Company Subsidiaries has any material Liability for water treatment or similar obligations.

 

4.23 Brokers’ and Finders’ Fees . Except as set forth on Schedule 4.23 of the Company Disclosure Letter, the Company and Company Subsidiaries have not entered into and will not enter into any Contract, agreement, arrangement or understanding with any Person which will result in the obligation of the Company or any of the Company Subsidiaries to pay any finders’ fee, brokerage commission, or similar payment in connection with the transactions contemplated hereby.

 

4.24 Additional Compensation Payments . There are no Persons to whom the Company or any of the Company Subsidiaries has or will have, as of the Closing Date or as a result of, or in connection with, the consummation of the transactions contemplated by this Agreement or the other Acquisition Documents, an obligation to make any Additional Compensation Payments.

 

4.25 Transactions with Related Parties . Except as set forth on Schedule 4.25 of the Company Disclosure Letter, to the knowledge of the Company, no Related Party of the Company or any of the Company Subsidiaries has or has had, at any time since March 17, 2016, had any Contract, agreement or other arrangement (written or oral) with the Company or any of the Company Subsidiaries.

 

     
 

 

4.26 Compliance with Law . Except as set forth in Environmental Matters (as covered by Section 4.22 hereof), Employee Benefit Plans (as covered by Section 4.20), Labor Relations (as covered by Section 4.20), the Applicant Violator System (as covered by Section 4.18), Permits and Bonds (as covered by Section 4.16), Mine Safety and Health (as covered by Section 4.14), Real Property (as covered by Section 4.12), Tax Matters (as covered by Section 4.17) and except as set forth on Schedule 4.26 of the Company Disclosure Letter, the Company and the Company Subsidiaries are and have been, since March 17, 2016, in compliance, in all material respects, with all applicable Laws (including, without limitation, all reclamation requirements of the Permits required to date by Law) and Orders, and have not received written notice of, or been threatened or placed under, any investigation with respect to any charge concerning any material noncompliance or alleged material noncompliance with any Law or Order.

 

4.27 Powers of Attorney . Except as set forth in Schedule 4.27 of the Company Disclosure Letter, there are no outstanding powers of attorney executed on behalf of the Company or any of the Company Subsidiaries.

 

ARTICLE 5
Covenants and Obligations of Buyer

 

5.1 Company Permit and Bond Matters .

 

(a) Subject to required consents or approvals from any federal, state or other governmental body, effective as of the Closing (i) Seller and the pre-Closing Company hereby transfer to Buyer, as owner and controller of the post-Closing Company, all of their rights, interests, duties, obligations, and liabilities under the Company Permits, and (ii) Buyer, as owner and controller of the post-Closing Company, hereby assumes all of Seller’s and the Company’s rights, interests, duties, obligations, and liabilities under the Company Permits, including all obligations for reclamation under applicable laws and regulations.

 

(b) Buyer shall, within fifteen (15) days of the Effective Date, file all documents and information necessary to obtain, and thereafter shall diligently pursue (i) to the extent transfer is permitted under applicable law and regulation, the transfer to Buyer, as owner and controller of the post-Closing Company, of the Company Permits, and (ii) the obtaining of any necessary replacements of any Company Permits. Seller shall cooperate with Buyer in all commercially reasonable ways to file and prosecute such applications, at the sole cost and expense of Buyer. Buyer shall bear any risk or expense associated with not having all necessary and appropriate Permits issued, assigned, transferred or otherwise in effect for any period following the Closing. Buyer shall be responsible for all costs associated with the transfer of the Company Permits and the replacement of the substitute bonds with respect thereto.

 

(c) Within fifteen (15) days after the Effective Date, Buyer shall provide Seller with evidence satisfactory to Seller, in Seller’s sole discretion, that Buyer has posted substitute bonds for the Company Permits. Buyer shall cause the existing Bonds (and all security with respect thereto) obtained by Seller and/or the Company with respect to the Company Permits to be terminated, released, and returned to Seller as soon as possible, and shall take all such actions and execute all such documents as may be necessary to effect such termination, release, and return. The “Transition Period” with respect to each Bond shall be the period beginning on the Effective Date and ending on the date such Bond has been terminated in accordance with this Section 5.1(c).

 

     
 

 

(d) To the extent allowed by and in accordance with applicable Law and regulation, Seller hereby grants to Buyer the right, after the Effective Date, to conduct operations under any of the Company Permits (and Seller will, at Buyer’s request, designate Buyer or its Affiliate as an operator under the Company Permits for this purpose) until such time as the transfer or replacement of the Company Permits to Buyer is complete, but in no event for longer than ninety (90) days after the date hereof, or for so long thereafter as Buyer is diligently pursuing such transfer and Seller shall cooperate with Buyer and provide any reasonably requested assistance with respect thereto. Buyer agrees to comply in all respects with all conditions and requirements of, or pertaining to, any such Company Permits that Buyer, the Company, or its Affiliate operates under after the date hereof, and to comply in all respects with all applicable laws and regulations.

 

ARTICLE 6

Covenants and Obligations of Seller

 

6.1 Release of Existing Encumbrances . Except as set forth in Section 8.3(h) below, Seller agrees to secure, as of the Closing, the release of any Encumbrance held by any party with respect to the Interests or the assets of the Company. The Seller is delivering the Mortgage Lien Releases pursuant to Section 8.3(h) hereof, however, the filing of such Mortgage Lien Releases with the applicable clerk’s office in order to finalize the release of such Mortgages Liens shall take place post-Closing as soon as reasonably practicable.

 

6.2 Payables . Seller shall cause all payables and accruals of the Company (excluding bonding obligations with respect to the Company Permits and excluding unmined mineral and other real property taxes contemplated to be allocated between Seller and Buyer as of the Closing Date in accordance with Section 2.3 hereof) to be paid in full at the later of (a) Closing, or (b) the date on which a payable is due in accordance with its terms.

 

6.3 Conduct of the Company

. From the Effective Date until the Closing, except as otherwise provided in this Agreement or consented to in writing by Buyer (which consent shall not be unreasonably withheld or delayed), Seller shall (x) conduct the Business in the ordinary course of business consistent with past practice; and (y) use reasonable best efforts to maintain and preserve intact its current Business organization, operations and franchise and to preserve the rights, franchises, goodwill and relationships of its employees, customers, lenders, suppliers, regulators and others having relationships with the Business.

 

(a) Without limiting the foregoing, from the date hereof until the Closing Date, Seller cause the Company and the Company Subsidiaries to:

 

(1) pay the debts, Taxes and other obligations of the Business when due;

 

(2) preserve and maintain all Company Permits required for the conduct of the Business as currently conducted or the ownership and use of the Company;

 

(3) continue to collect Accounts Receivable in a manner consistent with past practice, without discounting such Accounts Receivable;

 

     
 

(4) maintain the Company’s and the Company’s Subsidiaries’ properties and assets in the same condition as they were on the date of this Agreement, subject to reasonable wear and tear;

 

(5) continue in full force and effect without modification all insurance policies with respect to the Company and the Company’s Subsidiaries and their respective assets, except as required by applicable Law;

 

(6) defend and protect the Company’s and the Company’s Subsidiaries’ properties and assets from infringement or usurpation;

 

(7) perform all of its obligations under all Contracts;

 

(8) maintain the Company and the Company Subsidiaries’ Books and Records in accordance with past practice;

 

(9) comply in all material respects with all Laws applicable to the conduct of the Business; and

 

(10) not take or permit any action that would cause any of the changes, events or conditions described in Section 4.6 to occur.

 

(b) Without limiting the foregoing, from the date hereof until the Closing Date, Seller shall not, and will not permit the Company or any Company Subsidiary to:

 

(1) Make any payment outside of the ordinary course of business in distribution to or redemption of any equity interest, except such distributions of cash by the Company in order to reduce the amount of all cash that is held by the Company, determined on a consolidated basis, at the close of business on the Business Day immediately preceding the Closing Date to zero;

 

(2) Issue or sell, or offer to issue or sell, any equity security or equity;

 

(3) Create, incur, assume or become responsible for the payment of any indebtedness, other than trade payables incurred in the ordinary course that are not material in the aggregate, or agree to the amendment of any existing indebtedness, or incur any liability to a Company Subsidiary connection with the acquisition of any asset from such Company Subsidiary;

 

(4) (A) Engage in any sale or series of related sales of any material assets other than sales in the ordinary course of business or (B) sell or agree to sell or otherwise dispose of all or substantially all of the assets of;

 

(5) Incur, assume or suffer any lien upon or in respect of any of its property or assets to secure any indebtedness, other than (A) municipal, tax, association and similar liens on property owned by the Company or any Company Subsidiary typically imposed on similar properties, or (B) construction, workman’s or materialman’s liens on property owned by the Company or any Company Subsidiary incurred in the ordinary course;

 

     
 

(6) Consolidate or merge with any other entity or reorganize;

 

(7) Liquidate or dissolve or file for bankruptcy protection;

 

(8) Except as otherwise specifically set forth in this Agreement, to become a party to any transaction or other arrangement with a Related Party, their family members or any entity owned or controlled by any of them;

 

(9) Adopt any change in its Charter Documents or create any new Company Subsidiary; or

 

(10) Pay, discharge, settle or satisfy any material Claim.

 

6.4 Restrictive Covenants .

 

(a) For a period of twelve (12) months commencing on the Closing Date (the “Restricted Period”), Seller and Seller’s Management shall not, and shall not permit any of its or their respective Affiliates to, directly or indirectly, hire or solicit any person who is employed by the Buyer, the Company or any of the Company Subsidiaries, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided , that nothing in this Section 6.4(a) shall prevent Seller or any of its Affiliates from hiring (i) any employee whose employment has been terminated by Buyer or the Company during the Restricted Period or thereafter, or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.

 

(b) From and after the Closing, Seller and Seller’s Management shall, and shall cause their respective Affiliates to, hold, and shall use its reasonable best efforts to cause its or their respective Representatives to hold, in confidence any and all information, whether written or oral, concerning the Business, except to the extent that Seller can show that such information (a) is generally available to and known by the public through no fault of Seller or Seller’s Management, any of their respective Affiliates or their respective Representatives; or (b) is lawfully acquired by Seller or Seller’s Management, any of their respective Affiliates or their respective Representatives from and after the Closing from sources which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If Seller, any of Seller’s Management or any of their respective Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, Seller shall promptly notify Buyer in writing and shall disclose only that portion of such information which Seller is advised by its counsel in writing is legally required to be disclosed, provided that Seller shall use reasonable best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.

 

     
 

 

(c) Each of Seller and Seller’s Management acknowledges that a breach or threatened breach of this Section 6.4 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller or any of Seller’s Management of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).

 

(d) Each of Seller and each of Seller’s Management acknowledges that the restrictions contained in this Section 6.4 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.4 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.4 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

 

6.5 Access to Information . From the date hereof until the Closing, Seller shall (a) afford Buyer and its Representatives full and free access to and the right to inspect all of the Real Property, properties, assets, premises, Books and Records, Contracts and other documents and data related to the Business; (b) furnish Buyer and its Representatives with such financial, operating and other data and information related to the Business as Buyer or any of its Representatives may reasonably request; and (c) instruct the Representatives of Seller to cooperate with Buyer in its investigation of the Business. Without limiting the foregoing, if requested, Seller shall permit Buyer and its Representatives to conduct environmental due diligence of the Real Property, including the collecting and analysis of samples of indoor or outdoor air, surface water, groundwater or surface or subsurface land on, at, in, under or from the Real Property. Any investigation pursuant to this Section 6.5 shall be conducted in such manner as not to interfere unreasonably with the conduct of the Business or any other businesses of Seller. No investigation by Buyer or other information received by Buyer shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller in this Agreement.

 

6.6 Notice of Certain Events . From the date hereof until the Closing, Seller shall promptly notify Buyer in writing of:

 

(a) any fact, circumstance, event or action the existence, occurrence or taking of which (i) has had, or could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) has resulted in, or could reasonably be expected to result in, any representation or warranty made by Seller hereunder not being true and correct or (iii) has resulted in, or could reasonably be expected to result in, the failure of any of the conditions set forth in Section 8.1 or Section 8.3 to be satisfied;

 

     
 

 

(i) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement;

 

(ii) any notice or other communication from any Governmental or Regulatory Authority in connection with the transactions contemplated by this Agreement; and

 

(iii) any Actions commenced or, to Seller’s knowledge, threatened against, relating to or involving or otherwise affecting the Business, the assets or liabilities of the Company or any Company Subsidiary that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to Section 4.6 or Section 4.11 or that relates to the consummation of the transactions contemplated by this Agreement.

 

(b) Buyer’s receipt of information pursuant to this Section 6.6 shall not operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller in this Agreement and shall not be deemed to amend or supplement the Company Disclosure Letter.

 

6.7 Books and Records .

 

(a) In order to facilitate the resolution of any claims made by or against or incurred by the Company after the Closing, or for any other reasonable purpose, for a period of seven (7) years following the Closing, Seller shall:

 

(i) retain the books and records (including personnel files) of Seller which relate to the Business and its operations for periods prior to the Closing; and

 

(ii) upon reasonable notice, afford the Buyer’s Representatives reasonable access (including the right to make, at Buyer’s expense, photocopies), during normal business hours, to such books and records.

 

6.8 Closing Conditions . From the Effective Date until the Closing, Seller shall use its best efforts to take such actions as are necessary to expeditiously satisfy the closing conditions set forth in Article 8 hereof.

 

6.9 Employees .

 

(a) Commencing on the Closing Date, Seller shall be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, director, independent contractor or consultant of the Business, including, without limitation, hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the service with Seller at any time on or prior to the Closing Date and Seller shall pay all such amounts to all entitled persons on or prior to the Closing Date, or as soon as reasonably practicable thereafter in accordance with Seller’s normal payroll practices.

 

     
 

 

(b) Except for those claims set forth on Schedule 4.11 to the Company Disclosure Letter, the Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect of current or former employees, officers, directors, independent contractors or consultants of the Business or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing Date. Except for those claims set forth on Schedule 4.11 to the Company Disclosure Letter, Seller also shall remain solely responsible for all worker’s compensation claims of any current or former employees, officers, directors, independent contractors or consultants of the Business which relate to events occurring on or prior to the Closing Date. Seller shall pay, or cause to be paid, all such amounts to the appropriate persons as and when due.

 

ARTICLE 7

Mutual Covenants

 

7.1 Post-Closing Tax Matters .

 

(a) The Seller shall prepare or cause to be prepared, and shall file or cause to be filed, at the Seller’s sole expense, all federal and state tax returns for the Company for all periods ending on or prior to the Closing Date which are due to be filed after the Closing Date (the “Final Tax Returns”). The Buyer shall be responsible for filing all federal and state tax returns for the Company, and for paying all Taxes of the Company, for all periods ending after the Closing Date.

 

(b) Buyer agrees to pay all sales or use, transfer and other taxes (except income taxes) arising from or related to the transactions contemplated hereby (“Transfer Taxes”) up to $50,000 and any Transfer Taxes in excess of $50,000 shall be paid 50% by Seller and 50% by Buyer to be paid in full at the later of (a) Closing, or (b) the date on which such Transfer Tax is due. The Buyer and Seller shall cooperate to facilitate the payment of such Transfer Taxes in excess of $50,000.

 

(c) Buyer and Seller shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with the filing of tax returns and any audit, litigation or other proceeding with respect to taxes. Such cooperation shall include the retention and (upon the other party’s request) the provision of records and information reasonably relevant to any such tax return, audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Buyer and Seller agree (i) to retain all books and records with respect to tax matters pertinent to the Company relating to any taxable period beginning before the Closing Date until expiration of the statute of limitations of the respective taxable periods (and to the extent notified by Buyer, any extensions thereof), and to abide by all record retention agreements entered into with any taxing authority, and (ii) to give the other party reasonable written notice prior to transferring, destroying or discarding any such books and records and, if the other party so requests, Buyer or Seller, as the case may be, shall allow the other party to take possession of such books and records.

 

     
 

 

7.2 Further Assurances . Upon the reasonable request of any party at any time after the Closing, the other parties shall promptly execute and deliver such documents and instruments and take such additional action as the requesting party may request to effectuate the intents and purposes of this Agreement.

 

7.3 Public Disclosure . No party hereto shall issue or cause the publication of any press release or other announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the other parties, except where such release or announcement is required by applicable Law, court process or the requirements of any national securities exchange and provided that the other parties are notified in writing as to the content of such release or announcement prior to the publication thereof and are given a reasonable opportunity to comment thereon. Wexford Capital LP shall have the right to consent to any use of its name (or the name of any of its affiliates) in any publicity (including press releases and announcements).

 

7.4 Expenses . Whether or not the transactions contemplated hereby are consummated, all costs and expenses incurred in connection with the negotiation and consummation of the terms and conditions of this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

 

7.5 No Other Representations or Warranties . Buyer agrees that, except for the representations and warranties made by the Seller that are expressly set forth in Article 4 (as modified by the Company Disclosure Letter) and in any certificate provided pursuant to Section 8.3(c), neither Seller nor the Company has made and shall not be deemed to have made any representation or warranty of any kind. Without limiting the generality of the foregoing, Buyer agrees that neither the Seller, the Company, any Company Subsidiary, nor any of their respective Affiliates or representatives, makes or has made any representation or warranty to Buyer or its Affiliates with respect to:

 

(a) any projections, forecasts or other estimates, plans or budgets of future revenues, expenses or expenditures, future results of operations (or any component thereof), future cash flows (or any component thereof) or future financial condition (or any component thereof) of the Company or any Company Subsidiary or the future business, operations or affairs of the Company or any Company Subsidiary heretofore or hereafter delivered to or made available to Buyer or its representatives or Affiliates; or

 

(b) any other information, statement or documents heretofore or hereafter delivered or made available to Buyer or its representatives or Affiliates, except to the extent and as expressly covered by a representation or warranty made by the Seller and contained in Article 4 of this Agreement (as modified by the Company Disclosure Letter).

 

7.6 Cooperation . In the event that any administrative or judicial proceeding is instituted (or threatened to be instituted) by a Governmental or Regulatory Authority or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, each of Buyer and Seller shall, and Seller shall cause the Company to, cooperate with each other and use its respective commercially reasonable efforts to contest and resist any such proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement. Buyer shall cause the Company to reasonably cooperate, at Seller’s cost and expense, after the Closing Date with respect to the handling and use of Seller’s information technology assets and employees located on the Company’s property. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all required hereunder consents, authorizations, orders and approvals.

 

     
 

 

7.7 Allocation of Purchase Price . The Purchase Price and Liabilities of the Company (plus other relevant items) shall be allocated among the assets of the Company for all purposes (including Tax and financial accounting) as shown on the allocation schedule (the “Allocation Schedule”). A draft of the Allocation Schedule shall be prepared by Buyer and delivered to Seller within thirty (30) days following the Closing Date. If the Seller does not notify Buyer, in writing within thirty (30) days of receipt of the Allocation Schedule, that it objects to one or more items reflected therein, then the Seller shall be deemed to have accepted the Allocation Schedule. If the Seller notifies Buyer, in writing within thirty (30) days of receipt of the Allocation Schedule, that it objects to one or more items reflected in the Allocation Schedule, Seller and Buyer shall negotiate in good faith to resolve such dispute; provided, however , that if they are unable to resolve any dispute with respect to the Allocation Schedule within thirty (30) days following Buyer’s receipt of Seller’s notice of objection, such dispute shall be submitted to the Independent Auditor for resolution as a tax expert and not an arbiter, and the parties shall use reasonable efforts to cause the Independent Auditor to resolve the disagreements within thirty (30) days. The Allocation Schedule, as accepted or agreed to by the parties or finally determined by the Independent Auditor, shall be binding on Seller, Buyer, and the Company. The fees and expenses of the Independent Auditor shall be borne half by Seller and half by Buyer. The parties shall file all Tax Returns (including amended returns and claims for refund) and information reports in a manner consistent with the Allocation Schedule. Any adjustments to the Purchase Price pursuant to this Agreement shall be allocated in a manner consistent with the Allocation Schedule.

 

ARTICLE 8

Conditions Precedent

 

8.1 Conditions to Obligations of the Parties . The obligations of each of the Parties to consummate the Transactions are subject to the satisfaction of the following conditions:

 

(c) No provision of any Law shall prohibit the consummation of the transactions contemplated hereby;

 

(d) there shall not be pending any action by any Governmental or Regulatory Authority seeking to prohibit the consummation of the Transactions; and

 

(e) All consents, authorizations, orders and approvals from Governmental or Regulatory Authorities that are required to be obtained or given prior to or upon the Closing Date, in each case, in form and substance reasonably satisfactory to Buyer and Seller, and no such consent, authorization, order and approval shall have been revoked.

 

8.2 Conditions Precedent to Seller’s Obligations . The obligation of Seller to consummate the transactions contemplated to be completed by the Closing Date under this Agreement shall be subject to the satisfaction of each of the following conditions at or before the Closing Date:

 

     
 

 

(a) Representations, Warranties and Covenants . The representations and warranties of Buyer contained herein, without taking into account any materiality or material adverse effect qualifiers set forth therein, shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing (except for such representations and warranties that are made as of a specific date, which representations and warranties shall be true and correct at and as of such specific date), except where the failure of such representations and warranties to be true and correct in all respects has not had and would not be reasonably expected to have, individually or in the aggregate, a material adverse effect on the ability of Buyer to consummate the Transactions or perform its obligations hereunder. Buyer shall have performed all obligations and complied with all covenants and obligations required by this Agreement to be performed or complied with by it at or prior to the Closing Date.

 

(b) Other Acquisition Documents . Buyer shall have executed and delivered all other Acquisition Documents.

 

(c) Consents and Approvals . All consents and approvals required to be obtained by Seller in connection with the transactions contemplated hereby shall have been obtained.

 

8.3 Conditions Precedent to Buyer’s Obligations . The obligation of Buyer to consummate the transactions contemplated to be completed by the Closing Date under this Agreement shall be subject to the satisfaction of each of the following conditions at or before the Closing Date:

 

(a) Representations, Warranties and Covenants . The representations and warranties of Seller contained hereinshall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing (except for such representations and warranties that are made as of a specific date, which representations and warranties shall be true and correct at and as of such specific date), and each of the Fundamental Representations shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing (except for Fundamental Representations that are made as of a specific date, which Fundamental Representations shall be true and correct at and as of such specific date). Seller shall have performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it prior to the Closing Date.

 

(b) Other Acquisition Documents . Seller shall have executed and delivered all other Acquisition Documents.

 

(c) Consents and Approvals . All consents and approvals required to be obtained by Buyer in connection with the transactions contemplated hereby shall have been obtained.

 

(d) Material Adverse Effect . Since the Most Recent Balance Sheet Date, there shall have been no Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.

 

     
 

 

(e) Seller Certification . Buyer shall have received a certificate signed by the Seller to the effect that the conditions in Section 8.3(a) and Section 8.3(d) have been satisfied (the “Seller Certification”).

 

(f) Secretary Certificate . Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, delivery and performance of this Agreement and the other Acquisition Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.

 

(g) Incumbency Certificate . Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying the names and signatures of the officers of Seller authorized to sign this Agreement, the Acquisition Documents and the other documents to be delivered hereunder and thereunder.

 

(h) Release of Encumbrances . All Encumbrances relating to the Interests and the Real Property and other assets of the Company and the Company Subsidiaries shall have been released in full, other than Permitted Encumbrances, and at Closing Seller shall have delivered to Buyer written evidenceof the Bank’s release of such Encumbrances (the “Mortgage Lien Releases”); provided however, that the Encumbrances created and maintained pursuant to that Amended and Restated Credit Agreement, dated as of July 29, 2011, as amended, by and among Seller, each of the guarantors party thereto, the Lenders party thereto, and PNC Bank, National Association (the “Bank”), as Administrative Agent (the “Mortgage Liens”), shall be released upon the filing of such Mortgage Lien Releases after the Closing Date as soon as reasonably practicable.

 

(i) Resignations . Seller shall have delivered to Buyer resignations of all directors and officers of the Company and the Company Subsidiaries and provided evidence of its removal of all signatories from the Company’s and the Company Subsidiaries’ bank accounts.

 

(j) Additional Documents and Instruments . Seller shall have delivered to Buyer such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.

 

8.4 Frustration of Closing Conditions . None of the Buyer or the Seller may rely on the failure of any condition set forth in Section 8.1, Section 8.2 or Section 8.3, as the case may be, to be satisfied if such failure was caused by such Party’s failure to use the standard of effort required from such Party to consummate the Transactions, as required by and subject to Section 7.6 and Section 11.11.

 

     
 

 

ARTICLE 9
Closing and Termination

 

9.1 Closing . The Closing shall take place at the Seller’s office in Lexington, Kentucky on August ___, 2016 (the “Closing Date”).

 

9.2 The Closing Date . For tax and accounting purposes, the Closing shall be deemed to have occurred at one minute before midnight on the Closing Date.

 

9.3 Termination . This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Closing only as provided below:

 

(a) by mutual written agreement of the Buyer and the Seller;

 

(b) by either the Buyer or the Seller if the transactions contemplated by this Agreement have not been consummated on or before September __, 2016; provided, that the right to terminate this Agreement pursuant to this Section 9.3(b) will not be available to any Party hereto whose knowing or willful breach of any provision of this Agreement results in the failure of the Transactions to be consummated by such time;

 

(c) by either the Seller or Buyer if consummation of the transactions contemplated hereby would violate any non-appealable final order, decree or judgment of any Governmental or Regulatory Authority having competent jurisdiction;

 

(d) by Buyer if either (i) there has been a breach of, or inaccuracy in, any representation or warranty of the Sellers contained in Article 4 of this Agreement or (ii) the Seller has breached or violated any covenant contained in this Agreement, in each case which breach, inaccuracy or violation (A) would result in the failure to satisfy a condition set forth in Section 8.1 or Section 8.3 and (B) cannot be or has not been cured by the date which is twenty (20) days after Buyer notifies the Seller of such breach, inaccuracy or violation; or

 

(e) by the Seller if either (i) there has been a breach of, or inaccuracy in, any representation or warranty of any of Buyer contained in Article 3 of this Agreement or (ii) the Buyer has breached or violated any covenant contained in this Agreement, in each case which breach, inaccuracy or violation (A) would result in the failure to satisfy a condition set forth in Section 8.1 or Section 8.2 and (B) cannot be or has not been cured by the date which is twenty (20) days after such Seller notifies Buyer of such breach, inaccuracy or violation.

 

The Party hereto desiring to terminate this Agreement pursuant to clauses (b), (c), (d), or (e) above will give notice of such termination to the other Party.

 

9.4 Effect of Termination . If this Agreement is terminated as permitted by Section 9.3, the representations and warranties of the Buyer and the Seller shall terminate, there shall be no liability of any Party hereto arising from or relating to any breaches by such Party of its representations and warranties, and termination shall be each Party’s exclusive remedy for any breach by another party of its representations and warranties; provided, however:

 

(a) that nothing herein is intended or shall be construed to limit the liability of any Party hereto if such termination results from such Party’s intentional (i) failure to fulfill a condition to the performance of the obligations of the other Party or (ii) failure to perform a covenant under this Agreement;

 

     
 

 

(b) that the rights and obligations of the Buyer and Seller under Sections 5.1, 6.4, 6.7, 6.9 and 7.1, 7.2, 7.3, 7..4, 7.6, 7,7 and 9.4 and Articles 10 and 11 will survive any termination hereof pursuant to Section 8.

 

ARTICLE 10
Survival of Representations, Warranties and Covenants; Indemnification

 

10.1 Survival of Representations, Warranties and Covenants . Each representation and warranty (other than the Fundamental Representations) contained in this Agreement shall expire on the one-year anniversary of the Closing Date, except that any such representation or warranty that has been made the subject of a Claim prior to such expiration date shall survive with respect to such Claim until the final resolution of such Claim pursuant to this Article 10. Unless otherwise expressly stated herein, all Fundamental Representations, covenants and agreements of the parties contained in this Agreement shall survive the Closing indefinitely. The Fundamental Representations set forth in Section 4.7 (Tax Matters) and in Section 4.22 (Environmental Matters) will survive the Closing until the date that is 30 days following the expiration of the applicable statute of limitations. The Fundamental Representations, other than the Tax Matters representations and Environmental Matters representations, will survive the Closing indefinitely.

 

10.2 Indemnification Provisions for Benefit of Buyer . Subject to the limitations set forth in this Article 10, after the Closing, Buyer and its representatives (each, an “Indemnified Party” and collectively, the “Indemnified Parties” and the party against whom such claims are asserted under this Article 10 is referred to as the “Indemnifying Party”) shall be indemnified and held harmless from and in respect of any and all damages, losses, claims, deficiencies, liabilities, suits, demands, judgments and costs and expenses (including costs of investigations and reasonable attorneys’ fees) (each a “Loss” and collectively “Losses”) related to, resulting from, arising out of, or caused by, directly or indirectly:

 

(a) any breach Seller or Seller’s Management of any representation, warranty, covenant or agreement contained in this Agreement (including any inaccuracy in the Seller Certification with respect to any of the matters to be set forth thereon) or any other Acquisition Document (a “Company Breach Claim”);

 

(b) the Seller’s fraud (a “Company Fraud Claim”);

 

(c) Company Indemnified Taxes (“Company Tax Claim”);

 

(d) Additional Compensation Payments that are not included as a current liability on the Balance Sheet (a “Compensation Claim”);

 

(e) any Third Party Claim based upon, resulting from or arising out of the business, operations, properties, assets or obligations of the Company, any Company Subsidiary or any of their respective Affiliates conducted, existing or arising on or prior to the Closing Date, but only to the extent not disclosed in the Seller’s representations herein or the Company Disclosure Letter (each a “Pre-Closing Third Party Claim”);

 

     
 

 

(g) any and all liabilities arising from or related to operations under the existing Bonds (including, without limitation, all Bond premium payments) for the Company Permits prior to the Transition Period, but only to the extent not disclosed in the Seller’s representations herein or the Company Disclosure Letter (“Company Bond Claims”); and

 

(h) any and all liabilities arising prior to the Closing from or related to violations of mining and environmental laws or regulation under the Company Permits arising or resulting from operations of Seller the Company, or their Affiliates prior to the Closing, but only to the extent not disclosed in the Seller’s representations herein or the Company Disclosure Letter (“Company Permit Claims”).

 

10.3 Certain Limitations .

 

(a) The indemnification provided in Section 10.2 is subject to the following limitations:

 

(i) No Indemnified Party may recover any Losses with respect to a Company Breach Claim (other than a Company Breach Claim that constitutes a breach of any of the Fundamental Representations, a Company Fraud Claim, a Pre-Closing Third Party Claim, a Company Tax Claim, a Company Bond Claim, a Company Permit Claim or a Compensation Claim) until the cost of all Losses incurred by the Indemnified Party based on the same or a substantially similar set of facts giving rise to a Company Breach Claim exceeds $10,000 (“Excluded Company Claims”). Additionally, no Indemnified Party may recover any Losses under this Article relating to a Company Breach Claim (other than a Company Breach Claim that constitutes a breach of any of the Fundamental Representations, a Company Fraud Claim, a Pre-Closing Third Party Claim, a Company Tax Claim, a Company Bond Claim, a Company Permit Claim or a Compensation Claim) unless and until the aggregate amount of all such Losses (without regard to any Excluded Company Claims) exceeds the Threshold Amount and then only with respect to amounts in excess of the Threshold Amount.

 

(ii) The maximum liability of the Company and the Seller, in the aggregate for all claims under Section 10.2 (other than a Company Breach Claim that constitutes a breach of any of the Fundamental Representations, a Company Fraud Claim, or a Pre-Closing Third Party Claim), shall be limited to Five Million Dollars ($5,000,000).

 

(iii) No Indemnified Party shall have any indemnification rights with respect to a Company Breach Claim (other than a Company Breach Claim that constitutes a breach of any of the Fundamental Representations, a Company Fraud Claim, a Pre-Closing Third Party Claim, a Company Tax Claim, a Company Bond Claim, a Company Permit Claim or a Compensation Claim) and no Indemnifying Party shall have any obligation to provide indemnity hereunder with respect to such claims, unless such Claim is brought in accordance with this Article 10 on or before the date that is one (1) year following the Closing Date.

 

(b) The indemnification provided in Section 10.4 is subject to the following limitations:

 

(i) The Seller may not recover any Losses with respect to a Buyer Breach Claim until the cost of all Losses incurred by the Seller based on the same or a substantially similar set of facts giving rise to a Buyer Breach Claim exceeds $10,000 (“Excluded Buyer Claims”). Additionally, the Seller may not recover any Losses under this Article relating to a Buyer Breach Claim unless and until the aggregate amount of all such Losses (without regard to any Excluded Buyer Claims) exceeds the Threshold Amount and then only with respect to amounts in excess of the Threshold Amount.

 

     
 

 

(ii) The maximum liability of the Company and Buyer for all claims under Section 10.4 shall be limited to $1,000,000.

 

(iii) The Seller shall not have any indemnification rights with respect to a Buyer Breach Claim and no Indemnifying Party shall have any obligation to provide indemnity hereunder with respect to such claims, unless such Claim is brought in accordance with this Article 10 on or before the date that is one (1) year following the Closing Date.

 

10.4 Indemnification Provisions for Benefit of Seller . Subject to the limitations set forth in this Article 10, after the Closing, Seller shall be indemnified and held harmless from and in respect of any and all Losses arising from and after the Closing Date related to, resulting from, arising out of, or caused by, directly or indirectly:

 

(a) operations under each of the existing Bonds (including, without limitation, all Bond premium payments) for the Permits during the Transition Period with respect thereto; and

 

(b) violations of mining and environmental laws or regulation under the Permits arising or resulting from operations of Buyer, the Company, or its Affiliates post-Closing (each of the foregoing, a “Buyer Breach Claim”).

 

10.5 Claims .

 

(a) Notice. Any Indemnified Party seeking indemnification hereunder shall promptly notify the Seller of any action, suit, proceeding, demand, claim or breach (a “Claim”) with respect to which the Indemnified Party claims indemnification hereunder, and such notice shall specify in reasonable detail the individual items of Loss, the basis for the anticipated liability and the nature of the breach of representation, warranty, covenant or agreement giving rise to such Losses, provided that the failure to give such prompt notice shall not relieve the Indemnifying Party of its obligations under this Article 10 except to the extent, if at all, that such Indemnifying Party shall have been prejudiced thereby.

 

     
 

 

(b) Third-Party Claims . If such Claim relates to any action, suit, proceeding or demand instituted against the Indemnified Party by a third party (a “Third-Party Claim”), the Indemnifying Party shall be entitled to assume the defense of such Third-Party Claim in its own name, or, if necessary, in the name of the Indemnified Party; provided the following conditions must be satisfied: (i) the Indemnifying Party shall have confirmed in writing, within thirty (30) days after receiving notice of such Third-Party Claim, that it is assuming such defense, (ii) the Indemnified Party shall not have given the Indemnifying Party written notice that it has determined, in the exercise of its reasonable discretion, that matters of corporate or management policy or a conflict of interest make separate representation by the Indemnified Party’s own counsel advisable, and (iii) such Third Party Claim does not involve a Claim for equitable relief involving the ongoing operations of Buyer, the Company, or any of their respective Subsidiaries. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 10.5(c), (A) it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third- Party Claim, and (B) the Indemnified Party shall have the right, at its own cost and expense, to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. If the Indemnifying Party elects not to defend such Third-Party Claim, by failing to give notice as provided in this Agreement or otherwise, or is not permitted to defend such Third-Party Claim, or fails to diligently prosecute the defense of such Third-Party Claim, the Indemnified Party may, subject to Section 10.5(c), pay, compromise and/or defend such Third-Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim.

 

(c) Settlement of Third-Party Claims . Notwithstanding any other provision of this Agreement to the contrary, the Indemnifying Party shall not compromise or settle any Third- Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless such compromise or settlement (i) provides for the unconditional release of the Indemnified Party from all Liabilities in connection with such Third- Party Claim, and (ii) relates to a Claim for monetary relief only. If the Indemnified Party has assumed the defense of the Third-Party Claim, it shall not compromise or settle such Third-Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).

 

(d) Direct Claims . Following receipt of notice of a Claim on account of a Loss which does not result from a Third-Party Claim (a “Direct Claim”), the Indemnifying Party shall have 30 days to respond in writing to such Direct Claim. If the Indemnifying Party does not respond within such 30 day period, the Indemnifying Party will be deemed to have accepted such Direct Claim. If the Indemnifying Party rejects all or any part of such Direct Claim, the Indemnifying Party and the Indemnified Party shall attempt in good faith for 30 days to resolve such Direct Claim. If no such agreement can be reached through good faith negotiation within 30 days, either the Indemnifying Party or the Indemnified Party may resolve such dispute using such remedies as may be available on the terms and subject to the provisions of this Agreement.

 

(e) Method and Manner of Paying Claims . In the event of any Claims under this Article 10, the claimant shall advise the Indemnifying Party by written notice specifying in reasonable detail the individual items of damages for which indemnification is being sought, the date each such item was paid, or properly accrued or arose, and the nature of the misrepresentation, breach of warranty or claim to which such item is related. The Indemnifying Party shall first satisfy any such obligation by offsetting such amount against the unpaid Deferred Payments, if any, and thereafter if this amount is insufficient to permit recovery in full with respect to such claims or unavailable, by seeking redress from the Seller which shall satisfy such Claim by wire transfer of immediately available funds within 15 Business days of the date upon which such a Claim is agreed to by the Indemnifying Party or is finally adjudicated to be payable pursuant to this Article.

 

     
 

 

10.6 Remedy . Notwithstanding anything to the contrary in this Agreement, the parties hereto acknowledge that, after the Closing Date, the indemnification provisions set forth in this Article constitute the sole and exclusive recourse and remedy of the Indemnified Parties with respect to the breach of any representation, warranty, covenant or agreement of the Seller contained in this Agreement, the other Acquisition Documents or in any closing certificate executed and delivered by the Seller in connection herewith or otherwise in connection with the transactions contemplated hereby. Notwithstanding any provision in this Agreement to the contrary, no party hereto shall in any event be liable to any Person, on account of any indemnity obligations set forth in this Article 10 or otherwise, for, and each party hereto waives any right it may have to claim or recover, any indirect, consequential, special, incidental or punitive damages (including lost profits, diminution in value, loss of use, damage to goodwill or loss of business) other than any such damages paid to a third party in connection with a Third-Party Claim. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligations set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective representatives arising under or based upon any Law, except pursuant to the indemnification provision set forth in this Article 10 and except for any such rights, claims, or causes of action arising from fraud, intentional misrepresentation or willful misconduct. Nothing in this Section shall limit any Person’s right to seek and obtain any injunctive or other equitable relief, including pursuant to Section 11.7, to which any Person shall be entitled.

 

10.7 Amount of Losses .

 

(a) The amount of any Loss payable hereunder shall be reduced by any insurance proceeds actually received by the Indemnified Party with respect to the event or occurrence giving rise to such Losses and shall be reduced by any amounts which the Indemnified Party actually receives from third parties in connection with Losses for which indemnification is sought under this Article in each case net of any expenses incurred in obtaining such proceeds or amounts. The Indemnified Party shall use commercially reasonable efforts to pursue insurance or other claims that may reduce or eliminate Losses. If the Indemnified Party both collects proceeds from any insurance company or other Person and receives a payment from the Indemnifying Party pursuant to this Article, and the sum of such proceeds and payment is in excess of the amount payable with respect to the matter that is the subject of the indemnity, then the Indemnified Party shall promptly refund the amount of such excess (up to, but not exceeding, the amount of the payment received from the Indemnifying Party) to the Indemnifying Party.

 

(b) Each Indemnified Party shall take, and shall cause its Affiliates to take, all commercially reasonable steps to mitigate Losses in connection with claims for which a party seeks indemnification under this Article.

 

(c) The representations, warranties, covenants and agreements of the Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its representatives) or by reason of the fact that the Indemnified Party or any of its representatives knew or should have known that any such representation, warranty, covenant or agreement is, was or might be inaccurate or unsatisfied.

 

     
 

 

10.8 Tax Treatment of Indemnification Payments . All indemnification payments made under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by Law.

 

ARTICLE 11
Miscellaneous

 

11.1 Entire Agreement . This Agreement and the other Acquisition Documents, including all amendments, schedules, annexes and attachments hereto and thereto, constitute the entire agreement of the parties with respect to the subject matter hereof and thereof, and supersede all prior understandings with respect to the subject matter hereof and thereof. No extension, change, modification, addition or termination of this Agreement shall be enforceable unless in writing and signed by the party against whom enforcement is sought.

 

11.2 Benefit and Assignment . This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective executors, administrators, heirs, successors, and permitted assigns. This Agreement, and the rights and obligations hereunder, may not be assigned by either party hereto without the prior written consent of the other party hereto.

 

11.3 Notices . All notices under this Agreement (“Notices”) shall be given (a) by personal delivery; (b) by registered or certified mail, postage prepaid, return receipt requested; or (c) by nationally recognized overnight or other express courier services. Either the Seller or Buyer may change its address by Notice to the other party.

 

  (a) If to the Seller:
     
    Rhino Energy LLC
    424 Lewis Hargett Circle, Suite 250
    Lexington, Kentucky 40503
     
  (b) If to Buyer:
     
    c/o Wexford Capital LP
    411 West Putnam Avenue
    Greenwich, CT 06830
    Attention: Mark Zand and Arthur Amron, Esq.
    Facsimile No.: 203-862-7490 and 203-862-7312

 

All such notices, requests and other communications shall (a) if delivered personally to the address as provided in this Section 11.3, be deemed given upon delivery; (b) if delivered by facsimile transmission to the facsimile number as provided for in this Section 11.3, be deemed given upon receipt of facsimile confirmation; (c) if delivered by overnight courier to the address as provided in this Section 11.3, be deemed given on the earlier of the first Business Day following the date sent by such overnight courier or upon receipt (in each case regardless of whether such notice, request or other communication is received by any other Person to whom a copy of such notice is to be delivered pursuant to this Section 11.3). Any party from time to time may change its address, facsimile number or other information for the purpose of notices to that party by giving notice specifying such change to the other party hereto.

 

     
 

 

11.4 Amendment and Modification . This Agreement may not be amended or modified in any manner nor may any of its provisions be waived except by written amendment executed by the Buyer and the Seller. A waiver or amendment shall only be effective if (a) it is in writing and signed by the Buyer and the Seller, (b) it specifically refers to this Agreement and (c) it specifically states that the applicable Party is waiving or amending its rights hereunder. Any such amendment, modification or waiver shall be effective only in the specific instance and for the purpose for which it was given.

 

11.5 No Assignment; Binding Effect. Neither this Agreement nor any right, interest or obligation hereunder may be assigned (by operation of Law or otherwise) by any party without the prior written consent of the other parties hereto and any attempt to do so shall be void. Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns.

 

11.6 Invalid Provisions . If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future Law, and if the rights or obligations of any party hereto under this Agreement will not be materially and adversely affected thereby, (a) such provision shall be fully severable; (b) this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; (c) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom and (d) in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible.

 

11.7 Specific Performance . The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which such party is entitled at law or in equity.

 

11.8 Headings . The headings used in this Agreement have been included solely for ease of reference and shall not be considered in the interpretation or construction of this Agreement.

 

11.9 Multiple Counterparts . This Agreement may be executed in two or more counterparts (including via e-mail transmission), each of which shall be an original, but all of which together shall constitute one and the same instrument.

 

11.10 Waiver . No waiver or failure to insist upon strict compliance with any agreement or condition shall operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only as against such party and only if set forth in an instrument in writing signed by such party, which expressly states that it is intended to extend a deadline or waive a right hereunder.

 

     
 

 

11.11 Time of the Essence . The parties hereto acknowledge and agree that time is of the essence in the performance of this Agreement.

 

11.12 Further Assurances . At the request and the sole expense of the requesting party, at any time after the Closing Date, each party shall execute and deliver such documents as the other party or its counsel may reasonably request to effectuate the intents and purposes of this Agreement.

 

11.13 Governing Law; Jurisdiction .

 

(a) This Agreement shall be construed, interpreted and the rights of the parties determined in accordance with the laws of the State of Delaware, without regard to its conflict of laws rules. Notwithstanding the foregoing, any construction or interpretation of a matter with its primary nexus in the Commonwealth of Kentucky, which shall include only matters related to real property, leases, Permits, labor and employment, and mining and environmental matters, shall be determined in accordance with the laws of the Commonwealth of Kentucky, without regard to its conflict of laws rules.

 

(b) Each of the parties hereto irrevocably and unconditionally consents and submits to the jurisdiction of the courts of the Commonwealth of Kentucky and agrees that any action involving any equitable or other claim shall be brought exclusively in the courts of the Commonwealth of Kentucky situated in Lexington, Fayette County, Kentucky. In the event that the courts of the Commonwealth of Kentucky situated in Lexington, Fayette County, Kentucky do not accept jurisdiction over any such action, the parties hereto irrevocably agree that any such action then shall be brought exclusively in the United States District Court for the Eastern District of Kentucky. Each of the parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in (i) the courts of the Commonwealth of Kentucky situated in Lexington, Fayette County, Kentucky or (ii) the United States District Court for the Eastern District of Kentucky, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

 

(c) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.13.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

 

     
 

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.

 

Rhino Energy LLC  
     
By: /s/ Richard Boone  
Name: Richard Boone  
Title: Executive Vice President and CFO  
     
Elk Horn Coal Acquisition LLC  
     
By: /s/ Arthur Amron  
Name: Arthur Amron  
Title: Vice President and Assistant Secretary  
     
Only with respect to Section 6.4 and Article 11  
     
Seller’s Management:  
     
  /s/ William Tuorto  
Name: William Tuorto  
Title: Executive Chairman  
     
  /s/ Richard Boone  
Name: Richard Boone  
Title: Executive Vice President and CFO  
     
  /s/ Whitney Kegley  
Name: Whitney Kegley  
Title: VP, Secretary, and General Counsel  
     
  /s/ Brian Aug  
Name: Brian Aug  
Title: Vice President of Sales  
     
  /s/ Chad Hunt  
Name: Chad Hunt  
Title: Senior VP of Business Development  
     
  /s/ Elizabeth Branham  
Name: Elizabeth Branham  
Title: VP, Controller, and Assistant Secretary  
     
  /s/ Scott Morris  
Name: Scott Morris  
Title: VP of Finance  

 

Guaranty

 

In order to induce Seller to enter into this Agreement, the undersigned, The Elk Horn Coal Company, LLC (“Guarantor”) hereby unconditionally and irrevocably guarantees the full payment and performance when due of any and all obligations and liabilities of the Buyer with respect to Deferred Payments, as set forth in Section 2.2(b) of this Agreement (the “Guaranteed Payments”). If Buyer fails to pay all or any part of the Guaranteed Payments when due, Guarantor, immediately on demand of Seller, will pay the amount due and unpaid by Buyer, in like manner as if the amount constituted the direct and primary obligation of Guarantor.

 

The Elk Horn Coal Company, LLC  
     
By: /s/ Joseph Funk  
Name: Joseph Funk  
Title: President/CEO  

 

     
 

 

 

SIXTH AMENDMENT and consent TO AMENDED AND RESTATED CREDIT AGREEMENT

 

THIS SIXTH AMENDMENT AND CONSENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the “ Amendment ”) dated as of July 19, 2016, is made by and among RHINO ENERGY LLC , a Delaware limited liability company (the “ Borrower ”), each of the GUARANTORS (as hereinafter defined), the LENDERS (as hereinafter defined), and PNC BANK, NATIONAL ASSOCIATION , in its capacity as administrative agent for the Lenders under the Credit Agreement (hereinafter referred to in such capacity as the “ Administrative Agent ”).

 

W I T N E S S E T H:

 

WHEREAS, the Borrower, the Administrative Agent and the Lenders are parties to that certain Amended and Restated Credit Agreement dated July 29, 2011, as amended by that certain First Amendment to Amended and Restated Credit Agreement dated April 18, 2013, as amended by that certain Second Amendment and Consent to Amended and Restated Credit Agreement dated March 19, 2014, as amended by that certain Third Amendment to Amended and Restated Credit Agreement dated April 28, 2015, as amended by that certain Fourth Amendment to Amended and Restated Credit Agreement dated March 17, 2016, and further amended by that certain Fifth Amendment to Amended and Restated Credit Agreement dated as of May 13, 2016 (as the same may be further amended, modified or supplemented from time to time, the “ Credit Agreement ”);

 

WHEREAS, the Borrower has requested that the Required Lenders consent under the Credit Agreement to, among other things, the sale of its subsidiary, The Elk Horn Coal Company, LLC, and agree to the application of the proceeds, all as set forth below.

 

NOW, THEREFORE, the parties hereto, in consideration of their mutual covenants and agreements hereinafter set forth and intending to be legally bound hereby, covenant and agree as follows:

 

1.        Definitions . Except as set forth in this Amendment, defined terms used herein shall have the meanings given to them in the Credit Agreement:

 

2.        Amendment to Credit Agreement

 

(a)        Defined Terms - New . Section 1.1 of the Credit Agreement shall be amended by adding the following new definitions thereto in appropriate alphabetical order:

 

Elk Horn ” shall mean the Borrower’s Subsidiary, The Elk Horn Coal Company, LLC.

 

Elk Horn Closing Net Proceeds ” shall mean the cash proceeds received by the Loan Parties at the time of closing on the Elk Horn Purchase Agreement after deducting reasonable costs, expenses and other adjustments associated with such disposition of not more than $665,000.

 

 
 

 

Elk Horn Letter of Intent ” means that certain non-binding letter of intent, dated June 7, 2016, by and between the Borrower and Wexford.

 

Elk Horn Purchase Agreement ” shall mean the agreement to be entered into between the Borrower and Wexford for the purchase of one hundred percent (100%) of the equity interests of Elk Horn, which shall be on terms and conditions no less favorable than those set forth in the Elk Horn Letter of Intent and otherwise in form and substance reasonably acceptable to the Administrative Agent.

 

Elk Horn Royalty ” shall mean the $1,500,000 of royalty payments which may be payable in equal monthly installments to the Loan Parties subsequent to the sale of Elk Horn, all as contemplated by the Elk Horn Letter of Intent.

 

Sixth Amendment Effective Date shall mean July 19, 2016.”

 

Wexford ” shall mean Wexford Capital LP or one or more of its affiliates.

 

(b)        Consent to Sale of Elk Horn . So long as there has been no sale, conveyance, assignment, lease, abandonment or other transfer or disposal of assets or assumption of liabilities between any of the Loan Parties and Elk Horn since December 31, 2015, the Required Lenders (i) consent to the sale of the equity interests in Elk Horn pursuant to the Elk Horn Purchase Agreement for a purchase price of at least $12,500,000 payable either as (A) Eleven Million Dollars ($11,000,000.00) at closing plus an Elk Horn Royalty of $1,500,000 or (B) Twelve Million Five Hundred Thousand Dollars ($12,500,000) at closing, notwithstanding the restrictions set forth in Section 8.2.7(vi) of the Credit Agreement and (ii) agree to release the liens and security interests of the Administrative Agent and the Lenders in the equity interests of Elk Horn and its assets upon the sale of the Elk Horn pursuant to the Elk Horn Purchase Agreement and the receipt of at least $11,000,000 of the purchase price, at closing, by the Loan Parties.

 

(c)        Reduction of Revolving Credit Commitments . In the event that Elk Horn is sold, notwithstanding the provisions of Section 2.12 of the Credit Agreement, the Revolving Credit Commitments shall be reduced (ratably among the Lenders in proportion to their Ratable Shares) as follows:

 

(i)       If the sale of Elk Horn includes the Elk Horn Royalty, then

 

(A)       by an amount equal to the greater of (1) the Elk Horn Closing Net Proceeds and (2) $10,335,000, immediately upon the sale of Elk Horn; and

 

(B)       $375,000 on each of the following dates: September 30, 2016; December 31, 2016; March 31, 2017 and June 30, 2017;

 

or

 

(ii)       If the sale of Elk Horn is for all cash paid at closing, then by an amount equal to the greater of (1) the Elk Horn Closing Net Proceeds and (2) $11,835,000, immediately upon the sale of Elk Horn.

 

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The reduction(s) in Revolving Credit Commitments shall be accompanied by a prepayment of the Notes, to the extent necessary, to cause the aggregate Revolving Facility Usage after giving effect to such prepayment to be equal to or less than the Revolving Credit Commitments as so reduced. For the avoidance of doubt, it is acknowledged and agreed that the contemplated commitment reduction(s) occurring as a result of the sale of Elk Horn do not reduce or in any way affect the Scheduled Reductions in Revolving Credit Commitments required by Section 2.12(iv) or Scheduled Equity Contributions required by Section 8.1.17.

 

(d)        Schedules . Upon the sale of Elk Horn, the Borrower shall submit, to the extent necessary, updated schedules to the Credit Agreement.

 

3.        Conditions Precedent . The Borrower acknowledges and agrees that this Amendment and the Administrative Agent and Lenders’ consent set forth in this Amendment are subject to the following conditions precedent as determined by the Administrative Agent to its satisfaction:

 

(a)        Execution and Delivery of Amendment . The Borrower, the Loan Parties, the Administrative Agent, and the Required Lenders shall have executed and delivered this Amendment, and all other documentation necessary for effectiveness of this Amendment shall have been executed and delivered all to the satisfaction of the Borrower, the Required Lenders and the Administrative Agent.

 

(b)        Officer’s Certificate . The representations and warranties of the Loan Parties contained in Section 6 of the Credit Agreement, as amended by the modifications and additional representations and warranties of this Amendment, and in each of the other Loan Documents shall be true and accurate on and as of the date hereof with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein), and each of the Loan Parties shall have performed and complied with all covenants and conditions hereof and thereof after giving effect to this Amendment, no Event of Default or Potential Default shall have occurred and be continuing or shall exist after giving effect to this Amendment; and there shall be delivered to the Administrative Agent for the benefit of each Lender a certificate of the Borrower dated the date hereof and signed by the Chief Executive Officer, President, or Chief Financial Officer of the Borrower to each such effect.

 

(c)        Secretary’s Certificate . There shall be delivered to the Administrative Agent for the benefit of each Lender a certificate dated the date hereof and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to:

 

(i)       all action taken by each Loan Party in connection with this Amendment and the other Loan Documents;

 

(ii)       the names of the officer or officers authorized to sign this Amendment and the other Loan Documents and the true signatures of such officer or officers and specifying the Authorized Officers permitted to act on behalf of each Loan Party for purposes of this Amendment and the true signatures of such officers, on which the Administrative Agent and each Lender may conclusively rely; and

 

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(iii)       copies of its organizational documents, including its certificate of incorporation and bylaws, certificate of limited partnership and limited partnership agreement or limited liability company certificate and operating agreement, as the case may be, as in effect on the date hereof and certified by the appropriate state official where such document is filed in a state office (or, in the event that no change has been made to such organizational documents previously delivered to the Administrative Agent, so certified by the Secretary or Assistant Secretary of such Loan Party), together with certificates from the appropriate state officials as to the continued existence and good standing of the Borrower in the state of its formation and the state of its principal place of business.

 

(d)        Legal Details . All legal details and proceedings in connection with the transactions contemplated by this Amendment and the other Loan Documents, including but limited to all documentation and information required by the regulatory authorities under applicable “know your customer”, anti-money laundering, and Patriot Act rules and regulations with respect to the Loan Parties, shall be in form and substance satisfactory to the Administrative Agent, and the Administrative Agent shall have received all such other counterpart originals or certified or other copies of such documents and proceedings in connection with such transactions, in form and substance satisfactory to the Administrative Agent, as the Administrative Agent or its counsel may reasonably request.

 

4.        Representations and Warranties . By its execution and delivery of this Amendment to Administrative Agent, Borrower, and each of the other Loan Parties represents and warrants to Administrative Agent and Lenders as follows:

 

(a)        Authorization, Etc . Each Loan Party has duly authorized, executed, and delivered this Amendment.

 

(b)        Material Adverse Change . After giving effect to this Amendment, no Material Adverse Change shall have occurred with respect to Borrower or any of the other Loan Parties since the Closing Date of the Credit Agreement.

 

(c)        Litigation . After giving effect to this Amendment, there are no actions, suits, investigations, litigation, or governmental proceedings pending or, to Borrower’s or any other Loan Party’s knowledge, threatened against any of the Loan Parties that could reasonably be expected to result in a Material Adverse Change.

 

(d)        Loan Documents . The representations and warranties set forth in the Credit Agreement and the Loan Documents shall be true and correct on and as of the date of this Amendment after giving effect to this Amendment with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties that relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein), and no Event of Default shall exist and be continuing under the Credit Agreement or under any Loan Document as of the date of this Amendment after giving effect to this Amendment.

 

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5.        Miscellaneous .

 

(a)        Full Force and Effect . Nothing contained herein shall operate to release the Borrower, any other Loan Party, or any other person or persons from their liability to keep and perform the provisions, conditions, obligations, and agreements contained in the Credit Agreement or the other Loan Documents, except as expressly herein modified, and the Borrower and each other Loan Party hereby reaffirms that each and every provision, condition, obligation, and agreement in the Credit Agreement and the other Loan Documents shall continue in full force and effect, except as expressly herein modified. The Borrower and each other Loan Party acknowledge that there are no agreements to make any further amendments or modifications of the Credit Agreement and the Loan Documents, nor are the Administrative Agent and the Lenders under any obligation to make any further amendments or modifications to the Credit Agreement and the Loan Documents other than those changes expressly set forth in this Amendment . This Amendment shall not constitute or be construed as a waiver of any Event of Default or event which with the giving of notice or the passage of time or both would constitute an Event of Default by Borrower under any of the Loan Documents or any of the Administrative Agent’s or the Lenders’ rights and remedies with respect thereto. The validity, priority and perfection of all security interests and other liens granted or created by the Loan Documents is hereby acknowledged and confirmed, and the Loan Documents shall continue to secure the Loans, as amended by this Amendment, without any change, loss or impairment of the priority of such security interests or other liens.

 

(b)        Release of Administrative Agent and Lenders . The Borrower and each of the other Loan Parties hereby fully and unconditionally release and forever discharge the Administrative Agent and the Lenders, their employees, directors, officers, attorneys, branches, affiliates, subsidiaries, successors and assigns and all persons, firms, corporations and organizations acting on any of their behalves (the “ Released Parties ”) of and from any and all claims, liabilities, demands, obligations, damages, losses, actions and causes of action whatsoever which the Borrower or any of the other Loan Parties may now have or claim to have against the Released Parties as of the date hereof, whether presently known or unknown and of any nature and extent whatsoever, including, without limitation, on account of or in any way affecting, concerning or arising out of or founded upon this Amendment, the Credit Agreement, or any of the Loan Documents, including but not limited to all such loss or damage of any kind heretofore sustained or that may arise as a consequence of the dealings between the parties up to and including the date hereof, including but not limited to, the administration or enforcement of the Obligations, the Loan or any of the Loan Documents. The obligations of the Borrower and the other Loan Parties under the Loan Documents and the Credit Agreement, as amended by this Amendment, shall be absolute and unconditional and shall remain in full force and effect without regard to, and shall not be released, discharged or in any way affected by:

 

(i)       any exercise or non-exercise of any right, remedy, power or privilege under or in respect of the Credit Agreement, as amended by this Amendment, the Loan Documents or any document relating to or evidencing any of the Lender’s liens or applicable law, including, without limitation, any waiver, consent, extension, indulgence or other action or inaction in respect thereof; or

 

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(ii)       any other act or thing or omission or delay to do any other act or thing which could operate to or as a discharge of the Borrower or any other Loan Party as a matter of law, other than payment in full of all Obligations, including but not limited to all obligations under the Loan Documents and the Credit Agreement, as amended by this Amendment.

 

(c)        Counterparts . This Amendment may be signed in counterparts (by facsimile transmission or otherwise), but all of which together shall constitute one and the same instrument.

 

(d)        Incorporation into Credit Agreement . This Amendment shall be incorporated into the Credit Agreement by this reference. All representations, warranties, Events of Default, and covenants set forth herein shall be a part of the Credit Agreement as if originally contained therein.

 

(e)        Governing Law . This Amendment shall be deemed to be a contract under the Laws of the Commonwealth of Pennsylvania and for all purposes shall be governed by and construed and enforced in accordance with the internal laws of the Commonwealth of Pennsylvania without regard to its conflict of laws principles.

 

(f)        No Novation . Except as amended hereby, all of the terms and conditions of the Credit Agreement and the other Loan Documents shall remain in full force and effect. Borrower, the other Loan Parties, each Lender, and Administrative Agent acknowledge and agree that this Amendment is not intended to constitute, nor does it constitute, a novation, interruption, suspension of continuity, satisfaction, discharge or termination of the obligations, loans, liabilities, or indebtedness under the Credit Agreement or the other Loan Documents.

 

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[SIGNATURE PAGE – SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties have executed this instrument as of the day and year first above written.

 

  BORROWER :
   
  RHINO ENERGY LLC , a Delaware limited liability company
       
  By: /s/ Richard A. Boone (SEAL)
  Name: Richard A. Boone  
  Title: Executive Vice President and CFO  

 

 
 

 

[SIGNATURE PAGE – SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT]

 

GUARANTORS :

 

  BUCK COAL, INC.
  CAM AIRCRAFT LLC
  CAM-BB LLC
  CAM coal trading LLC
  CAM-COLORADO LLC
  CAM-KENTUCKY REAL ESTATE LLC
  CAM MINING LLC
  CAM-ohio real estate LLC
  CASTLE VALLEY MINING LLC
  CLINTON STONE LLC
  HOPEDALE MINING LLC
  LEESVILLE LAND, LLC
  MCCLANE CANYON MINING LLC
  PENNYRILE ENERGY LLC
  RAM PROCESSING, INC.
  RHINO COALFIELD SERVICES LLC
  RHINO EXPLORATION LLC
  RHINO NORTHERN HOLDINGS LLC
  RHINO OILFIELD SERVICES LLC
  RHINO SERVICES LLC
  RHINO TECHNOLOGIES LLC
  RHINO TRUCKING LLC
  SANDS HILL MINING LLC
  SPRINGDALE LAND, LLC
  TAYLORVILLE MINING LLC
  THE ELK HORN COAL COMPANY, LLC
  THE ELK HORN CORPORATION
  TRIAD ROOF SUPPORT SYSTEMS LLC

 

  By: /s/ Richard A. Boone
  Name: Richard A. Boone
  Title: Executive Vice President and CFO of each
    Guarantor listed above on behalf of each
    such Guarantor

 

 
 

 

[SIGNATURE PAGE – SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT]

 

  RHINO RESOURCE PARTNERS LP
     
  By: Rhino GP LLC, its general partner
     
  By: /s/ Richard A. Boone
  Name: Richard A. Boone
  Title: Executive Vice President and CFO

 

 
 

 

[SIGNATURE PAGE – SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT]

 

  PNC BANK, NATIONAL ASSOCIATION ,
individually and as Administrative Agent
     
  By: /s/ Christopher B. Gribble
  Name: Christopher B. Gribble
  Title: Senior Vice President

 

 
 

 

[SIGNATURE PAGE – SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT]

 

  MUFG UNION BANK, N.A.
     
  By: /s/ Timothy C. Hintz
  Name: Timothy C. Hintz
  Title: Director

 

 
 

 

[SIGNATURE PAGE – SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT]

 

  RAYMOND JAMES BANK, N.A.
   
  By: /s/ H. Fred Coble, Jr.
  Name: H. Fred Coble, Jr.
  Title: Senior Vice President

 

 
 

 

[SIGNATURE PAGE – SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT]

 

  THE HUNTINGTON NATIONAL BANK
     
  By: /s/ Bruce G. Shearer
  Name: Bruce G. Shearer
  Title: Senior Vice President

 

 

 
 

 

[SIGNATURE PAGE – SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT]

 

  WELLS FARGO BANK, NATIONAL ASSOCIATION
     
  By: /s/ Stephanie Micua
  Name: Stephanie Micua
  Title: Senior Vice President

 

 
 

 

[SIGNATURE PAGE – SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT]

 

  FIFTH THIRD BANK
     
  By: /s/ David R. Garcia
  Name: David R. Garcia
  Title: Vice President

 

 
 

 

[SIGNATURE PAGE – SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT]

 

  ROYAL BANK OF CANADA
     
  By: /s/ Leslie P. Vowell
  Name: Leslie P. Vowell
  Title: Attorney-in-Fact

 

 
 

 

[SIGNATURE PAGE – SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT]

 

  BRANCH BANKING AND TRUST COMPANY
     
  By: /s/ Mary McElwain
  Name: Mary McElwain
  Title: Senior Vice President

 

 
 

 

[SIGNATURE PAGE – SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT]

 

  FIRST COMMONWEALTH BANK
     
  By: /s/ Stephen J. Orban
  Name: Stephen J. Orban
  Title: Senior Vice President

 

 
 

 

 

 

  Richard A. Boone

Employment Agreement

 

THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into this 16 th day of August 2016, effective as of the 1st day of September, 2016 (the “Effective Date”), by and between Rhino GP LLC , a Delaware limited liability company (the “Employer”) and Richard A. Boone (“Executive”).

 

RECITALS

 

Executive is employed by Employer as its Chief Financial Officer, pursuant to an Employment Agreement, originally dated May 31, 2011, as amended (the “Prior Agreement”), which Prior Agreement terminated on May 31, 2016. The Employer is the general partner of Rhino Resource Partners L.P. (the “Partnership”) and seeks to continue the Executive’s employment with the Employer, pursuant to the terms of this Agreement, as its President.

 

The Employer and Executive desire to enter into this Agreement in order to state the terms of Executive’s future employment. Executive desires to enter into this Agreement, and to accept employment by Employer on the terms hereinafter set forth in this Agreement. This Agreement amends, restates and supercedes the Prior Agreement, and any other agreement, oral or written.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the premises and mutual covenants herein and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

 

1. Term of Employment . Unless terminated earlier in accordance with the provisions of Section 7, Executive’s employment under this Agreement shall be effective for a term commencing on the Effective Date and ending on December 31, 2017 (the “Employment Term”) .

 

2.  Position and Duties . As of the Effective Date, Executive shall serve as the President of the Employer. In such positions, Executive shall report directly to the CEO of the Employer except, where appropriate and/or required by the rules of the New York Stock Exchange, NASDAQ, Employer’s charter documents and/or other applicable rule or regulation, to the Board of Directors of Employer and/or Employer’s Audit Committee. Executive shall have the customary authority, responsibilities and duties of such position(s), subject to the direction and definition of such authority, responsibilities, and duties from time to time by Employer. During the Employment Term, Executive will devote all of his business time and efforts to the performance of his duties hereunder. Executive shall be subject to all of the employment and personnel policies and procedures in effect from time to time and applicable to executive employees of Employer. Executive’s regular place of employment during the Employment Term shall be at Employer’s executive offices in Lexington, Fayette County, Kentucky, and Executive shall engage in such travel as may be reasonably required in connection with the performance of his duties hereunder.

 

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3.  Base Salary . The Employer shall pay Executive a base salary (the “Base Salary”) at the initial annual rate of $300,000 per year, which Base Salary shall be evaluated annually for potential increase, payable in regular installments in accordance with the usual executive payroll practices of Employer.

 

4.  Incentive Compensation.  During the Employment Term, Executive shall participate in any annual or long-term cash or equity based incentive plans or other similar arrangements of the Employer on a comparable basis as Employer’s other executives, in each case, in accordance with the terms of such plans, provided that the specific grant to Executive under any such plan or arrangement shall be in Employer’s sole discretion.

 

5.  Discretionary Bonus. The Employer may consider and approve in its sole discretion a performance-based discretionary bonus (“Discretionary Bonus”) for Executive of up to one hundred percent (100%) of Executive’s Base Salary at any time during the Employment Term.

 

6.  Other Benefits.

 

(a)  Retirement Benefits. During the Employment Term, Executive shall be provided with the opportunity to participate in the Employer’s qualified 401(k) plan and profit sharing and non-qualified deferred compensation plans (if any), as they may exist from time to time, in each case, in accordance with the terms of such plans.

 

(b)  Welfare Benefits; Vacation. During the Employment Term, Executive shall be provided with the opportunity to participate in the Employer’s medical plan and other employee welfare benefits on a comparable basis as such benefits are generally provided by the Employer from time to time to Employer’s other executives, in each case, in accordance with the terms of such plans. Executive shall be entitled to three (3) weeks of paid vacation each year during the Employment Term.

 

(c)  Indemnification. Employer shall indemnify and hold harmless Executive from and against any loss, cost, damage, expense, or liability incurred by Executive for any action taken by Executive in the scope of Executive’s employment for the Employer, provided such action (i) is within the scope, duties, and authority of Executive, (ii) is not in willful violation of any law, regulation, or code of conduct adopted by the Employer, and (iii) does not constitute gross negligence or intentional misconduct by Executive. The obligations of Employer under this Section 6(c) shall survive the termination of this Agreement.

 

(d)  Reimbursement of Business Expenses. During the Employment Term, all reasonable business expenses incurred by Executive in the performance of his duties hereunder shall be reimbursed by the Employer upon receipt of documentation of such expenses in a form reasonably acceptable to the Employer, and otherwise in accordance with the Employer’s expense reimbursement policies.

 

(e)  Vehicle. Employer shall provide Executive with the use of a vehicle suitable for the intended duties of the Executive.

 

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7.  Termination . Notwithstanding any other provision of this Agreement:

 

(a)  For Cause by the Employer . If Executive is terminated by Employer for Cause (as defined in Section 12(d)), Executive shall be entitled to receive as soon as reasonably practicable after his date of termination or such earlier time as may be required by applicable statute or regulation: (i) any earned but unpaid Base Salary through the date of termination; (ii) payment in respect of any vacation days accrued but unused through the date of termination; and (iii) reimbursement for all business expenses properly incurred in accordance with Employer’s policy prior to the date of termination and not yet reimbursed by the Employer (the aggregate benefits payable pursuant to clauses (i), (ii), and (iii) hereafter referred to as the “Accrued Obligations”); and except as provided herein Executive shall have no further rights to any compensation (including any Base Salary or bonus, if any) or any other benefits under this Agreement.

 

(b)  Without Cause by the Employer . If Executive is terminated by the Employer other than for Cause, Disability (as defined in Section 12(g)) or death, Executive shall receive: (i) the Accrued Obligations; and (ii) subject to Section 7(f), Base Salary for the period from termination through the expiration of the Employment Term herein, specifically December 31, 2017, payable in a lump sum within thirty (30) days of the date of termination. Except as provided herein, Executive shall have no further rights to any compensation (including any Base Salary or bonus, if any) or any other benefits under this Agreement.

 

(c)  Death . Following termination of employment for death, Executive’s estate shall be entitled to receive the Accrued Obligations as well a pro-rated annual discretionary bonus as awarded by Employer as well as any other compensation Executive’s estate or beneficiary(ies) are entitled to receive under Employer’s workmen’s compensation insurance program and (if any) other death benefits payable to Executive’s estate or beneficiary(ies) under Employer’s benefits plans according to their terms if Executive has elected to participate in any such plans, as they may be amended from time to time. Except as provided herein, Executive’s estate shall have no further rights to any other compensation or any other benefits under this Agreement.

 

(d)  Disability . Following termination of employment for Disability, Executive shall be entitled to receive the Accrued Obligations. Except as provided herein, Executive shall have no further rights to any compensation (including any Base Salary) or any other benefits under this Agreement.  

 

(e) Accrued & Vested Benefits . Upon any termination of Executive’s employment, whether by Executive or Employer, Executive shall be entitled, in addition to any other benefits that may be payable hereunder, to all benefits accrued and vested as of the date of such termination, due to Executive under any plan, policy or practice of Employer (such as, for example, accrued health benefits or reimbursements) (collectively, “Accrued and Vested Benefits”).

 

(f)  Release Etc. Notwithstanding any other provision of this Agreement to the contrary, Executive acknowledges and agrees that any and all payments to which Executive is entitled under this Section 7 which are described as being subject to this Section 7(f) are conditioned upon and subject to (i) Executive’s execution of an agreement in such reasonable and customary form as shall be prepared by the Employer reaffirming Executive’s obligations under Section 8 hereof, and (ii) Executive’s execution of, and not having revoked within any applicable revocation period, a general release and waiver, in such reasonable and customary form as shall be prepared by the Employer, of all claims Executive may have against the Employer and its directors, officers, subsidiaries and affiliates, except as to (x) matters covered by provisions of this Agreement that expressly survive the termination of this Agreement or are covered by the grant referred to in Section 9 hereof, and (y) any Accrued and Vested Benefits to which Executive may be entitled.

 

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(g)  Resignation . Upon Executive’s termination of employment for any reason, Executive shall be deemed to have immediately resigned from all offices with the Employer and any of the Employer’s subsidiaries or affiliates and shall, immediately upon the request of the Employer, confirm such resignations in writing. 

 

8. Covenants.

 

(a)  Confidentiality . Executive agrees that Executive will not at any time during Executive’s employment with the Employer or thereafter, except in performance of Executive’s duties for and obligations to the Employer hereunder, use or disclose, either directly or indirectly, any Confidential Information (as hereinafter defined) of the Employer or its subsidiaries or affiliates that Executive may learn by reason of his association with the Employer. The term “Confidential Information” shall mean any past, present, or future confidential or sensitive plans, programs, documents, agreements, internal management reports, financial information, or other material relating to the business, strategies, services, or activities of the Employer, including, without limitation, information with respect to the Employer’s operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, including leases, regulatory status, compensation paid to employees, or other terms of employment, and trade secrets, market reports, customer investigations, customer lists, and other similar information that is proprietary information of the Employer or its subsidiaries or affiliates; provided, however, the term “Confidential Information” shall not include any of the above forms of information which has become public knowledge, unless such Confidential Information became public knowledge due to an act or acts by Executive or his representative(s) in violation of this Agreement. Notwithstanding the foregoing, Executive may disclose such Confidential Information when required to do so by a court of competent jurisdiction, by any governmental agency having supervisory authority over the business of the Employer or its subsidiaries or affiliates, as the case may be, or by any administrative body or legislative body (including a committee thereof) with jurisdiction to order Executive to divulge, disclose or make accessible such information; provided, further, that in the event that Executive is ordered by any such court or other government agency, administrative body, or legislative body to disclose any Confidential Information, Executive shall (i) promptly notify the Employer of such order, (ii) at the reasonable written request of the Employer, diligently contest such order at the sole expense of the Employer as expenses occur or at the election of Employer, cooperate with Employer’s effort to contest such order, and (iii) at the reasonable written request of the Employer, seek to obtain, at the sole expense of the Employer, such confidential treatment as may be available under applicable laws for any information disclosed under such order or at the election of Employer, cooperate with Employer’s effort to obtain such confidential treatment.

 

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(b)  Non-Compete . During the Employment Term and for one (1) year immediately following a termination of employment for any reason, Executive shall not, without the prior written consent of the Employer, participate or engage in, directly or indirectly (as an owner, partner, employee, officer, director, independent contractor, consultant, advisor or in any other capacity calling for the rendition of services, advice, or acts of management, operation or control) any business for an individual or entity whose principal business involves coal mining or coal marketing in the following regions: Central Appalachia,Northern Appalachia, Illinois Basin, Western Bituminous and any other region in which the Employer or any of the Employer’s subsidiaries conduct business.

 

(c)  Non-Solicitation . During the Employment Term and for two (2) years immediately following a termination of Employment for any reason, Executive shall not, without the prior written consent of the Employer, solicit or induce any then-existing employee of the Employer or any of its subsidiaries or affiliates to leave employment with the Employer or any of its subsidiaries or affiliates, or contact any then-existing customer or vendor under contract with the Employer or any of its affiliates or subsidiaries for the purpose of obtaining business similar to that engaged in, or received (as appropriate), by the Employer or any of its affiliates or subsidiaries.

 

(d)  Cooperation . Executive agrees that during the Employment Term or following a termination of employment for any reason, Executive shall, upon reasonable advance notice, assist and cooperate with the Employer with regard to any investigation or litigation related to a matter or project in which Executive was involved during Executive’s employment. The Employer shall reimburse Executive for all reasonable and necessary expenses related to Executive’s services under this Section 8(d) (i.e., consulting, travel, lodging, meals, telephone, overnight courier) within ten (10) business days of Executive submitting to the Employer appropriate receipts and expense statements.

 

(e)  Survivability . The duties and obligations of Executive pursuant to this Section 8 shall survive the termination of this Agreement and Executive’s termination of employment for any reason.

 

(f)  Remedies . Executive acknowledges that the protections of the Employer set forth in this Section 8 are fair and reasonable, and that any violation of such protections would cause serious and irreparable harm and damage to the Employer and its subsidiaries and affiliates. Executive agrees that remedies at law for a breach or threatened breach of the provisions of this Section 8 would be inadequate and, therefore, the Employer shall be entitled, in addition to any other available remedies (including money damages), without posting a bond, to equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction, or any other equitable remedy that may be then available.

 

(g)  Limitation . The terms of this Section 8 are intended to limit disclosure and competition by the Executive to the maximum extent permitted by law. If the duration, scope, or nature of any limitation or restriction imposed by any provision of this Section 8 is finally determined by any court or tribunal of competent jurisdiction to be in excess of what is valid and enforceable under applicable law, such provision shall be construed to cover only that duration, scope or activity that is valid and enforceable. Executive hereby acknowledges that this Section 8 shall be given the construction which renders its provisions valid and enforceable to the maximum extent, not exceeding its express terms, possible under applicable law

 

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9.  [Intentionally Omitted]  

 

10.  Representations of Executive . Executive hereby represents to the Employer that Executive has full lawful right to enter into this Agreement and carry out Executive’s duties hereunder, and that performance of Executive’s obligations hereunder will not constitute a breach of or default under any employment, confidentiality, non-competition or other agreement. Executive further represents to the Employer that Executive is not listed in the Office of Surface Mining’s Applicant Violator System database. Executive shall provide prompt notice to the Employer of Executive’s first employment subsequent to a termination of employment. 

 

11. Miscellaneous .

 

(a)  Satisfaction of Obligations Under Prior Agreement . Employer, Rhino and Executive hereby acknowledge that this Agreement supersedes the Prior Agreement.

 

(b)  [Intentionally Omitted]

 

(c)  Governing Law. This Agreement will be governed by, and interpreted in accordance with, the laws of the Commonwealth of Kentucky applicable to agreements made and to be wholly performed within the Commonwealth of Kentucky, without regard to the conflict of laws provisions of any jurisdiction which would cause the application of any law other than that of the Commonwealth of Kentucky. Executive hereby consents to the jurisdiction of the state and federal courts of the Commonwealth of Kentucky, including the Fayette Circuit Court, and hereby waives any objection to venue of any action brought in such courts.

 

(d)  Entire Agreement; Amendments . This Agreement contains the entire understanding of the parties with respect to the employment of Executive by the Employer. There are no restrictions, agreements, promises, warranties, covenants or undertakings between the parties with respect to the subject matter herein other than those expressly set forth or referred to herein. This Agreement may not be altered, modified, or amended, nor may any of its provisions be waived, except by written instrument signed by the parties hereto which states that it is intended to alter, modify or amend this agreement or waive a right hereunder. Sections 7 and 8 hereof shall survive the termination of Executive’s employment with the Employer, except as otherwise specifically stated therein.

 

(e)  Neutral Interpretation . This Agreement constitutes the product of the negotiation of the parties hereto and the enforcement of this Agreement shall be interpreted in a neutral manner, and not more strongly for or against any party based upon the source of the draftsmanship of the Agreement. Each party has been provided ample time and opportunity to review and negotiate the terms of this Agreement and consult with legal counsel regarding the Agreement.

 

(f)  No Waiver . The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.

 

6  
 

   

(g)  Severability . In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby. 

 

(h) Successors .

 

(i) This Agreement is personal to Executive and shall not be assignable by Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives.

 

(ii) This Agreement shall inure to the benefit of and be binding upon the Employer and its successors and assigns. The Employer shall require any successor (whether direct or indirect, by purchase, merger, reorganization, consolidation, acquisition of property or stock, liquidation, or otherwise) to all or a substantial portion of its business and/or assets, by agreement in form and substance reasonably satisfactory to Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform this Agreement if no such succession had taken place. Regardless of whether such an agreement is executed, this Agreement shall be binding upon any successor of the Employer and such successor shall be deemed the “Employer” for purposes of this Agreement. Notwithstanding anything to the contrary contained herein, the Executive shall have the right to terminate this Agreement if Employer’s assets or membership units are sold to an entity that is not a subsidiary or an affiliate of the Employer. Such a sale shall include a merger, consolidation, sale of assets or membership units or other corporate reorganization; however it shall not include a change in ownership as a result of a public offering. Such a termination by Executive shall not be deemed a termination for “Good Reason” as herein defined, under which Executive would be entitled to the severance payment set out in Section 7 (b) (ii) above.

 

(i)  Notice . For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally, if delivered by overnight courier service, if sent by facsimile transmission or if mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the respective addresses or sent via facsimile to the respective facsimile numbers, as the case may be, as set forth below, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt; provided, however, that (i) notices sent by personal delivery or overnight courier shall be deemed given when delivered; (ii) notices sent by facsimile transmission shall be deemed given upon the sender’s receipt of confirmation of complete transmission, and (iii) notices sent by United States registered mail shall be deemed given two days after the date of deposit in the United States mail.

 

If to the Employer, to:

 

Rhino GP LLC

424 Lewis Hargett Circle

Suite 250

Lexington, Kentucky 40503

Attn: CEO

 

7  
 

 

cc:

 

Rhino GP LLC

56 Broad Street, Suite 2

Charleston, South Carolina 29401

Attn: Chairman

 

If to Executive, to such address as shall most currently appear on the records of the Employer.

 

(j)  Withholding . The Employer may withhold from any amounts payable under this Agreement such Taxes (as defined in Section 12(k)) as may be required to be withheld pursuant to any applicable law or regulation.

 

(k)  Counterparts . This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

(l)  Code Section 409A . It is intended that any amounts payable under this Agreement and the Employer’s and Executive’s exercise of authority or discretion hereunder shall comply with Code Section 409A (including the Treasury regulations and other published guidance relating thereto) so as not to subject Executive to the payment of any interest or additional tax imposed under Code Section 409A. To the extent any amount payable under this Agreement would trigger the additional tax imposed by Code Section 409A, the Agreement shall be modified to avoid such additional tax.

 

(m)  Confidential Terms . Executive agrees to maintain as confidential the terms and conditions of this Agreement, provided however Executive may disclose the terms of this Agreement to his legal counsel, and accountant or tax preparer, or as may be otherwise required by law.Waiver of Jury Trial. The parties hereby voluntarily and irrevocably waive the right to a trial by jury with regard to any action arising under or in connection with this agreement or the employment of the Executive by the Employer.

 

12. Definitions .

 

(a)  Accrued Obligations . “Accrued Obligations” has the meaning set forth in Section 7(a).

 

(b)  Base Salary . “Base Salary” has the meaning set forth in Section 3.

 

(c)  Board . “Board” means the Board of Directors of the Employer.

 

(d)  Cause . “Cause” for termination by the Employer of Executive’s employment with the Employer means any of the following:

 

8  
 

 

(i) the failure of Executive to perform substantially his duties (other than any such failure resulting from incapacity due to disability), within ten days after written notice from the Employer;

 

(ii) Executive’s conviction of, or plea of guilty or no contest to (A) a felony or (B) a misdemeanor involving dishonesty or moral turpitude; or

 

(iii) Executive engaging in any illegal conduct, gross misconduct, or other material breach of this Agreement which is materially and demonstrably injurious to the business or reputation of the Employer; or

 

(iv) Executive engaging in any act of dishonesty or fraud involving Employer or any subsidiary or affiliate of Employer.

 

(e)  Code . “Code” means the Internal Revenue Code of 1986, as amended from time to time.

 

(f)  Employer . “Employer” means Rhino GP LLC, a Delaware limited liability company.

 

(g)  Disability . “Disability” means the inability of Executive to perform his normal duties as a result of any physical or mental injury or ailment for (i) any consecutive forty five (45) day period or (ii) any ninety (90) days (whether or not consecutive) during any three hundred sixty five (365) calendar day period.

 

(h)  Employment Term . “Employment Term” has the meaning set forth in Section 1.

 

(i)  Executive . “Executive” means Richard A. Boone.

 

(j)  Good Reason . “Good Reason” for termination by Executive of Executive’s employment means the occurrence (without Executive’s express written consent) of any one of the following acts by the Employer or failures by Employer to act:

 

(i) the assignment to Executive of any duties inconsistent in any material respect with those of the office to which Executive is assigned pursuant to Section 2 hereof (including status, office, title and reporting requirements), or any other diminution in any material respect in such position, authority, duties or responsibilities unless agreed to by Executive;

 

(ii) a reduction in Base Salary;

 

(iii) a reduction in Executive’s welfare benefits plans, qualified retirement plan, or paid time off benefit, other than a reduction as a result of a general change in any such plan; or

 

(iv) any purported termination of Executive’s employment under this Agreement by the Employer other than for Cause, death or Disability.

 

9  
 

 

Prior to Executive’s right to terminate this Agreement, he shall give written notice to the Employer of his intention to terminate his employment on account of Good Reason. Such notice shall state in detail the particular act or acts of the failure or failures to act that constitute the grounds on which Executive’s Good Reason termination is based and such notice shall be given within six (6) months of the occurrence of the act or acts or the failure or failures to act which constitute the grounds for Good Reason. The Employer shall have thirty (30) days upon receipt of the notice in which to cure such conduct, to the extent such cure is possible and reasonable.

 

(k)  Taxes . “Taxes” mean the incremental United States federal, state and local income, excise and other taxes payable by Executive with respect to any applicable item of income. 

 

[SIGNATURE PAGE TO FOLLOW]

 

10  
 

  

IN WITNESS WHEREOF , the parties hereto have duly executed this Agreement as of the dates written below.

 

EXECUTIVE:  
     
By: /s/ Richard A. Boone  
  Richard A. Boone  
     
Date signed: 9/1/2016

   

Rhino GP LLC  
     
By: /s/ Whitney Kegley  
     
Name: Whitney Kegley  
     
Title: VP/General Counsel  

 

Date signed: 9/1/2016

 

11  
 

 

 

 

EMPLOYMENT AGREEMENT AMENDMENT

 

THIS EMPLOYMENT AGREEMENT AMENDMENT (the "Amendment") is entered into effective as of September 1, 2016 (the “Effective Date”), is between Rhino GP LLC ("Employer") and Scott Morris ("Employee").

 

W I T N E S S E T H

WHEREAS , Employee is currently employed by Employer pursuant to an Employment Agreement dated October 1, 2015 (the “Prior Agreement”).

 

WHEREAS , Employer and Employee now desire to amend the Prior Agreement, and have executed this Amendment to evidence the terms of their agreement.

 

NOW, THEREFORE , in consideration of the mutual covenants herein contained, the parties agree as follows:

 

1.        Section 1 of the Prior Agreement is hereby deleted and replaced in its entirety with the following language:

 

Terms and Duties. The Employer hereby shall employ Employee as its Chief Financial Officer continuing from the Effective Date until December 31, 2017 unless sooner terminated as herein provided or extended by mutual agreement of the parties (the “Employment Term"), with such duties customary to such position as Employer may reasonably designate during the Employment Term. The Employee shall also serve as an officer of those other subsidiaries of Rhino Resource Partners LP (OTC Markets: RHNO) that Employer designates. The Employee agrees to devote all of his business time and his best efforts to the business of Employer as may be necessary to perform his duties in accordance with the policies and budgets established from time to time by Employer. During the Employment Term, the Employee will not have any other paid employment. Employee shall be bound by, and agree to comply with, all policies, procedures, and employment conditions of Employer in effect from time to time applicable to its employees. Employee further agrees at all times to adhere to and perform all duties in accordance with all applicable federal, state or local laws, rules and regulations, and applicable stock exchange regulations.”

 

2.        Section 2 of the Prior Agreement is hereby deleted and replaced in its entirety with the following language:

 

Compensation ” For Employee’s services hereunder during the Employment Term, Employer shall pay to Employee a salary at the rate of $200,000 per year (“Base Salary”), payable periodically in accordance with Employer’s usual executive payroll payment procedures, subject to periodic review for possible increase consistent with Employer’s customary salary review practices.

 

3.        All other terms and conditions in the Prior Agreement shall remain unchanged except to the extent specifically modified herein.

 

[SIGNATURE PAGE TO FOLLOW]

 

 

 

 

IN WITNESS WHEREOF , the parties hereto have executed and delivered this Agreement as of the day and year first above written.

 

  EMPLOYER:
     
  Rhino GP LLC
     
  By: /s/ Whitney Kegley
   
  EMPLOYEE:s
     
    /s/ Scott Morris
    Scott Morris

 

 

 

 

 

August 22, 2016

 

Joseph Funk

P. O. Box 2540

Coeburn, VA 24230

 

  Re: Employment Agreement (the “Agreement”) dated November 14, 2014 between Rhino GP LLC (“Rhino”) and Joseph Funk (“Employee”)

 

Dear Joe:

 

As we have discussed, the parties hereby agree to the modification of the Agreement as provided herein in connection with a successful sale of the equity interests of The Elk Horn Coal Company, LLC (“Elk Horn”) and employment of Employee by purchaser of the equity interest. Employee waives no other rights or privileges contained in the Agreement. If neither the sale and the employment of Employee by purchaser occurs, this modification of the Agreement is not valid or binding. Rhino and Employee agree as follows:

 

  1. The term of the Agreement shall be amended to end on December 31, 2016. Employee will remain an employee of Rhino, with current benefits (including company automobile, health insurance, and reimbursement of expenses), until the end of such term. However, company shall provide health insurance at same terms for a period of 90 days after final termination, including any extensions of term.
     
  2. In exchange for all compensation under the EBITDA plan and in exchange for shorting of the term of the Agreement, employee agrees to a total compensation paid on or prior to December 31, 2016 of $465,000. The payment shall consist of $150,000 in cash paid by August 16, 2016 and $115,000 in salary payments for the period starting 14 days after the close of the EHCC sale and December 31, 2016. The balance of $200,000 will be paid in units (or cash at option of Rhino) with adequate guarantees to ensure the total cash received by Employee to not be less than $200,000 and must be received by Employee prior to December 31, 2016. The security for payment will be in form acceptable by Employee. Any amounts not yet received by Employee at December 31, 2016, will be paid by Rhino within 3 business days.

 

     
 

 

Page 2

 

  3. Rhino agrees that Employee may enter into an employment and or consulting agreement with Elk Horn, and hereby releases any noncompetition provisions contained in the Agreement.
     
  4. Employee agrees to use his commercially reasonable efforts and devote sufficient time to the performance of his duties under the Agreement, including travel to and from Rhino’s Lexington, Kentucky office.
     
  5. Employee agrees to promptly notify the management of Rhino if he becomes aware of any conflict or potential conflict between Elk Horn and Rhino occurring prior to December 30, 2016.
     
  6. Employee agrees to continue employment under same terms at the option of Rhino for the period of January 1, 2017 to March 31, 2017 at a monthly rate of $25,000 per month paid on the beginning of each month. In addition to the monthly salary, Rhino will grant to Employee on the beginning of each month $5,000 in value of Rhino units without restriction. Should Rhino terminate employment prior to March 31, 2017, then the Employee will be entitled to a termination payment of $15,000 cash paid immediately.
     
  7. Effective as of the date of termination and fulfilment of all obligations of Rhino, Employee hereby releases, relinquishes, waives, and forever discharges Rhino (and its directors, officers, owners, and employees) from any and all liabilities, obligations, causes of action, suits, debts, covenants, controversies, agreements (except for obligations and agreements under the Agreement as amended hereby), warranties, representations, promises, damages, understandings, demands and claims, of whatever kind and nature, known and unknown, now existing which Employee now has or has had or may have had against Rhino, whether in law or equity, arising out of or relating to his employment, officer, and director relationship with Rhino (the “Relationship”), including, without limitation, any tort or tortious act, whether of commission or omission.
     
  8. Effective as of the date hereof, Rhino hereby releases, relinquishes, waives, and forever discharges Employee from any and all liabilities, obligations, causes of action, suits, debts, covenants, controversies, agreements (except for obligations and agreements under the Agreement as amended hereby), warranties, representations, promises, damages, understandings, demands and claims, of whatever kind and nature, known and unknown, now existing or hereafter arising, which Rhino now has or has had or may have had or will have against Employee, whether in law or equity, arising out of or relating to the Relationship, including, without limitation, any tort or tortious act, whether of commission or omission.
     
  9. Company will provide Directors and Officer coverage against all claims and litigation against employee and pay any and all defense cost arising out of any and all claims relating to his employment with Rhino and for the time of his employment with Rhino.

 

Except as specifically modified hereby, the Agreement shall remain in full force and effect, and is hereby ratified and affirmed. In the event that no sale and no employment by Elk Horn occurs, then the modifications above are without meaning and not effective.

 

     
 

 

Page 3

 

If the forgoing reflects your understanding and agreement, please execute this letter where indicated below, and return it to us.

 

  Very truly yours,
     
  Rhino GP LLC
     
  By: /s/ Whitney Kegley
  Title: VP/General Counsel

 

The foregoing is acknowledged and agreed:

 

/s/ Joseph Funk  
Joseph Funk  

 

     
 

 

Exhibit 31.1

 

CERTIFICATION

 

I, Joseph E. Funk, certify that:

 

1. I have reviewed this Quarterly Report on Form 10-Q of Rhino Resource Partners LP;
   
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
   
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
   
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

 

  a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
     
  b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
     
  c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
     
  d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting.

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
     
  b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: November 10, 2016

 

/s/ Joseph E. Funk  
Joseph E. Funk  
Chief Executive Officer  

 

     
 

 

Exhibit 31.2

 

CERTIFICATION

 

I, W. Scott Morris, certify that:

 

1. I have reviewed this Quarterly Report on Form 10-Q of Rhino Resource Partners LP;
   
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
   
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
   
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

 

  a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
     
  b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
     
  c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
     
  d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting.

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
     
  b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: November 10, 2016

 

/s/ W. Scott Morris  
W. Scott Morris  
Vice President and Chief Financial Officer  

 

     
 

 

Exhibit 32.1

 

CERTIFICATION OF
CHIEF EXECUTIVE OFFICER
OF RHINO GP LLC
PURSUANT TO 18 U.S.C. SECTION 1350

 

In connection with this Quarterly Report on Form 10-Q of Rhino Resource Partners LP (the “Partnership”) for the quarter ended September 30, 2016 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Joseph E. Funk, as Chief Executive Officer of the Partnership, hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes Oxley Act of 2002, that, to his knowledge:

 

1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
   
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Partnership.

 

Date: November 10, 2016

 

/s/ Joseph E. Funk  
Joseph E. Funk  
Chief Executive Officer  

 

     
 

 

Exhibit 32.2

 

CERTIFICATION OF
CHIEF FINANCIAL OFFICER
OF RHINO GP LLC
PURSUANT TO 18 U.S.C. SECTION 1350

 

In connection with this quarterly report on Form 10-Q of Rhino Resource Partners LP (the “Partnership”) for the quarter ended September 30, 2016 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), W. Scott Morris, as Chief Financial Officer of the Partnership, hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes Oxley Act of 2002, that, to his knowledge:

 

1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
   
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Partnership.

 

Date: November 10, 2016

 

/s/ W. Scott Morris  
W. Scott Morris  
Vice President and Chief Financial Officer  

 

     
 

 

 

Federal Mine Safety and Health Act Information

 

The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) requires issuers to include in periodic reports filed with the SEC certain information relating to citations or orders for violations of standards under the Federal Mine Safety and Health Act of 1977 (the “Mine Act”). The following disclosures respond to that legislation.

 

Whenever MSHA believes that a violation of the Mine Act, any health or safety standard, or any regulation has occurred, it may issue a citation that describes the violation and fixes a time within which the operator must abate the violation. In these situations, MSHA typically proposes a civil penalty, or fine, as a result of the violation, that the operator is ordered to pay. In evaluating the information below regarding mine safety and health, investors should take into account factors such as: (a) the number of citations and orders will vary depending on the size of a coal mine, (b) the number of citations issued will vary from inspector to inspector and mine to mine, and (c) citations and orders can be contested and appealed, and during that process are often reduced in severity and amount, and are sometimes dismissed.

 

Responding to the Dodd-Frank Act legislation, we report that, for the three months ended September 30, 2016, none of our subsidiaries received written notice from MSHA of (a) a violation under section 110(b)(2) of the Mine Act for failure to make reasonable efforts to eliminate a known violation of a mandatory safety or health standard that substantially proximately caused, or reasonably could have been expected to cause, death or serious bodily injury, (b) a pattern of violations of mandatory health or safety standards under section 104(e) of the Mine Act, or (c) a violation under section 107(a) of the Mine Act for alleged conditions or practices that could reasonably be expected to cause death or serious physical harm. In addition, none of our subsidiaries suffered any mining related fatalities during the three months ended September 30, 2016.

 

The following table sets out information required by the Dodd-Frank Act for the three months ended September 30, 2016. The mine data retrieval system maintained by MSHA may show information that is different than what is provided herein. Any such difference may be attributed to the need to update that information on MSHA’s system and/or other factors. The table also displays pending legal actions before the Federal Mine Safety and Health Review Commission (the “Commission”) that were initiated during the three months ended September 30, 2016 as well as total pending legal actions that were pending before the Commission as of September 30, 2016, which includes the legal proceedings before the Commission as well as all contests of citations and penalty assessments which are not before an administrative law judge. All of these pending legal actions constitute challenges by us of citations issued by MSHA. Since none of our subsidiaries received notice from MSHA of a pattern of violations of mandatory health or safety standards under section 104(e) of the Mine Act, the column that would normally display this information in the table below has been omitted for ease of presentation.

 

 
 

 

For the three months ended September 30, 2016

 

Company   Mine 1   MSHA ID   104(a)S & S 2     104 (b) 3     104 (d) 4     107 (a) 5     110 (b)(2) 6     Proposed Assessments 7     Pending Legal Proceedings 8     Legal Proceedings Initiated     Legal Proceedings Resolved  
Hopedale Mining LLC   Hopedale Mine   33-00968     7       0       0       0       0     $ 1,684       1       0       0  
    Nelms Plant   33-04187     0       0       0       0       0     $ -       0       0       0  
                                                                                 
Sands Hill Mining LLC   Big Valley Mine   33-01358     0       0       0       0       0     $ -       0       0       0  
    Kanauga Dock   33-02044     0       0       0       0       0     $ -       0       0       0  
    Clinton Stone   33-04041     0       0       0       0       0     $ -       0       0       0  
     Strip #2   33-03336     0       0       0       0       0     $ 342       0       0       0  
                                                                                 
CAM/Deane Mining LLC   Mine #28   15-18911     0       0       0       0       0     $ 1,140       1       0       2  
    Three Mile Mine #1   15-17659     0       0       0       0       0     $ -       0       0       0  
    Grapevine South   46-08930     6       0       0       0       0     $ 910       0       0       0  
    Remining No. 3   46-09345     0       0       0       0       0     $ -       0       0       0  
    Rob Fork Processing   15-14468     0       0       0       0       0     $ 259       0       0       0  
    Jamboree Loadout   15-12896     0       0       0       0       0     $ -       0       0       0  
    Mill Creek Prep Plant   15-16577     0       0       0       0       0     $ -       0       0       0  
    Tug Fork Plant   46-08626     0       0       0       0       0     $ -       0       0       0  
    Rhino Trucking   Q569     0       0       0       0       0     $ -       0       0       0  
    Rhino Reclamation Services   R134     0       0       0       0       0     $ -       0       0       0  
    Rhino Services   S359     0       0       0       0       0     $ -       0       0       0  
                                                                                 
Rhino Eastern LLC   Eagle #1   4608758     0       0       0       0       0     $ -       0       0       0  
    Eagle #3   4609427     0       0       0       0       0     $ -       0       0       0  
                                                                                 
Pennyrile Energy LLC   Riveredge Mine   15-19424     26       0       3       0       0     $ 75,758       5       1       1  
    Riveredge Surface Ops   15-19749     0       0       0       0       0     $ -       0       0       1  
                                                                                 
McClane Canyon Mining LLC   McClane Canyon Mine   05-03013     0       0       0       0       0     $ -       0       0       0  
                                                                                 
Castle Valley Mining LLC   Castle Valley Mine #3   42-02263     2       0       0       1       0     $ 579       0       0       0  
    Castle Valley Mine #4   42-02335     1       0       0       0       0     $ 566       1       0       0  
    Bear Canyon Loading Facility   42-02395     2       0       0       0       0     $ 456       0       0       0  
                                                                                 
Total             44       0       3       1       0     $ 81,694       8       1       4  

 

1 The foregoing table does not include the following: (i) facilities which have been idle or closed unless they received a citation or order issued by MSHA; and (ii) permitted mining sites where we have not begun operations and therefore have not received any citations.

 

2 Mine Act section 104(a) citations shown above are for alleged violations of health or safety standards that could significantly and substantially contribute to a serious injury if left unabated.

 

 
 

 

3 Mine Act section 104(b) orders are for alleged failures to totally abate a citation within the period of time specified in the citation. These orders result in an order of immediate withdrawal from the area of the mine affected by the condition until MSHA determines that the violation has been abated.

 

4 Mine Act section 104(d) citations and orders are for an alleged unwarrantable failure (i.e. aggravated conduct constituting more than ordinary negligence) to comply with a mandatory mining health or safety standard or regulation. These types of violations could significantly and substantially contribute to a serious injury; however, the conditions do not cause imminent danger.

 

5 Mine Act section 107(a) orders are for alleged conditions or practices which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated and result in orders of immediate withdrawal from the area of the mine affected by the condition.

 

6 The total number of flagrant violations issued under section 110(b)(2) of the Mine Act.

 

7 Total dollar value of MSHA assessments proposed during the three months ended June 30, 2016.

 

8 Any pending legal action before the Federal Mine Safety and Health Review Commission (the “Commission”) involving a coal mine owned and operated by us. The number of legal actions pending as of June 30, 2016 that fall into each of the following categories is as follows:

 

(a) Contests of citations and orders: 3

 

(b) Contests of proposed penalties: 5

 

(c) Complaints for compensation under Section 111 of the Mine Act: 0

 

(d) Complaints of discharge, discrimination or interference under Section 105 of the Mine Act: 0

 

(e) Applications for temporary relief under Section 105(b)(2) of the Mine Act: 0

 

(f) Appeals of judges’ decisions or orders to the Commission: 0