CONTRIBUTION AGREEMENT

Exhibit 2.1

 

Execution Copy

 

 

CONTRIBUTION AGREEMENT

 

 

By and Among

 

 

ALLIANCE HOLDINGS GP, L.P.,

 

 

ALLIANCE GP, LLC,

 

ALLIANCE MANAGEMENT HOLDINGS, LLC,

 

AMH II, LLC

 

and

 

ALLIANCE RESOURCE GP, LLC

 

 

Dated as of November 18, 2005

TABLE OF CONTENTS

 

ARTICLE I

DEFINITIONS

 

ARTICLE II

CONTRIBUTION TRANSACTIONS

 

 

i

 

ii

CONTRIBUTION AGREEMENT

 

This Contribution Agreement, dated as of November 18, 2005 (this “ Contribution Agreement ”), is by and among Alliance Holdings GP, L.P., a Delaware limited partnership (“ AHGP ”), Alliance GP, LLC, a Delaware limited liability company (the “ General Partner ”), Alliance Management Holdings, LLC, a Delaware limited liability company (“ AMH ”), AMH II, LLC, a Delaware limited liability company (“ AMH II ”) and Alliance Resource GP, LLC, a Delaware limited company (“ SGP ”).

 

W I T N E S S E T H :

 

WHEREAS, AMH and AMH II currently own a 25.9% interest and a 74.1% interest, respectively, in Alliance Resource Management GP, LLC, a Delaware limited liability company (“ MGP ”);

 

WHEREAS, AMH and AMH II currently own 19,522 common units and 220,484 common units, respectively, of Alliance Resource Partners, L.P., a Delaware limited partnership (the “ ARLP ”), which are referred to herein as “ ARLP Common Units ”;

 

WHEREAS, SGP currently owns 15,310,622 ARLP Common Units;

 

WHEREAS, AMH, AMH II and SGP wish to enter into a series of transactions whereby:

 

(i) MGP becomes a wholly owned subsidiary of AHGP; and

 

(ii) 15,550,628 ARLP Common Units held by AMH, AMH II and SGP become owned by AHGP; and

 

WHEREAS, pursuant to such business combination and transfers:

 

(i) AMH will contribute its limited liability company interest in MGP and 19,522 ARLP Common Units to AHGP in exchange for cash and common units of AHGP (“ AHGP Common Units ”);

 

(ii) AMH II will contribute its limited liability company interest in MGP and 220,484 ARLP Common Units to AHGP in exchange for cash and AHGP Common Units; and

 

(iii) SGP will contribute 15,310,622 ARLP Common Units to AHGP in exchange for AHGP Common Units.

 

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements herein contained, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

 

The terms set forth below in this Article I shall have the meanings ascribed to them below or in the part of this Contribution Agreement referred to below:

 

“ Affiliate ” shall have the meaning ascribed to such term in Rule 12b-2 of the general rules and regulations under the Securities Exchange Act of 1934, as in effect on the date of this Contribution Agreement.

 

“ AHGP ” has the meaning set forth in the introductory paragraph hereto.

 

“ AHGP Certificate of Limited Partnership ” means the Certificate of Limited Partnership of AHGP, dated as of November 10, 2005, as amended.

 

“ AHGP Common Unit Price ” means the common unit price of the AHGP Common Units on the Pricing Date.

 

“ AHGP Common Units ” means the common units of AHGP, representing limited partner interests.

 

“ AHGP Initial Public Offering ” means the initial public offering of AHGP Common Units contemplated by the AHGP Registration Statement.

 

“ AHGP Initial Public Offering Proceeds ” means the net proceeds received from the AHGP Initial Public Offering, after deducting estimated offering expenses and underwriting discounts and commissions.

 

“ AHGP Limited Partnership Agreement ” means the agreement of limited partnership of AHGP, dated as of November 10, 2005, as amended.

 

“ AHGP Material Adverse Effect ” means a material adverse effect on the combined business, operations, prospects, properties (including intangible properties), assets, operating results or condition (financial or otherwise), liabilities or reserves of AHGP, the General Partner, MGP, ARLP and its subsidiaries, taken as a whole; provided, however, that a general decline in the business or prospects of the coal industry as a whole shall not be deemed to be an AHGP Material Adverse Effect.

 

“ AHGP Registration Statement ” means the Registration Statement on Form S-1 relating to AHGP Common Units to be filed with the Commission by AHGP in accordance with Section 9.4, and any amendments thereto.

 

“ AMH ” has the meaning set forth in the introductory paragraph hereto.

 

“ AMH Certificate of Formation ” means the Certificate of Formation of AMH, dated as of August 16, 1999, as amended.

 

“ AMH IPO Proceeds ” means the amount equal to the product of 0.259 multiplied by the AHGP Initial Public Offering Proceeds.

 

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“ AMH Operating Agreement ” means the Amended and Restated Operating Agreement of AMH, dated as of May 8, 2002, as amended.

 

“ AMH II ” has the meaning set forth in the introductory paragraph hereto.

 

“ AMH II Certificate of Formation ” means the Certificate of Formation of AMH II, dated as of May 6, 2002, as amended.

 

“ AMH II IPO Proceeds ” means the amount equal to the product of 0.741 multiplied by the AHGP Initial Public Offering Proceeds.

 

“ AMH II Operating Agreement ” means the Operating Agreement of AMH II, dated as of May 8, 2002, as amended.

 

“ ARLP ” has the meaning set forth in the recitals hereto.

 

“ ARLP Common Units ” means the common units of ARLP, representing limited partner interests.

 

“ ARLP Discounted Common Unit Price ” means the amount equal to the product of 0.2 multiplied by the common unit price of the ARLP Common Units on the Pricing Date.

 

“ Board ” means the board of directors of the General Partner.

 

“ Business Day ” means any day other than a Saturday, a Sunday or any other day when banks are not open for business generally in the State of Delaware.

 

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

 

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

 

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

 

“ Commission ” means the U.S. Securities and Exchange Commission.

 

“ Contribution Agreement ” has the meaning set forth in the introductory paragraph hereto.

 

“ Delaware LLC Act ” means the Limited Liability Company Act of the State of Delaware, as amended and any successor to such act.

 

“ Delaware LP Act ” means the Delaware Revised Uniform Limited Partnership Act, as amended and any successor to such act.

 

“ DGCL ” means the General Corporation Law of the State of Delaware, as amended.

 

“ Effective Time ” means immediately prior to the closing under the Underwriting Agreement.

 

“ General Partner ” has the meaning set forth in the introductory paragraph hereto.

 

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“ Governmental Authorities ” means the federal, state, county, city and political subdivisions in which any property of AHGP, the General Partner, AMH, AMH II, SGP, MGP and ARLP, respectively, is located or which exercises jurisdiction over any such property or entity, and any agency, department, commission, board, bureau or instrumentality of any of them which exercises jurisdiction over any such property or entity.

 

“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

 

“ Lien ” means a lien, mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, easement, preference, priority, assessment, security interest, lease, sublease, charge, claim, adverse claim, levy, interest of other Persons or other encumbrance of any kind.

 

“ MGP ” has the meaning set forth in the recitals hereto.

 

“ MGP LLC Agreement ” means the Limited Liability Company Operating Agreement of MGP, dated as of August 20, 1999, as amended by Amendment No. 1 thereto, dated as of November 30, 1999, Amendment No. 2 thereto, dated as of August 22, 2000 and Amendment No. 3 thereto, dated as of May 8, 2002, as amended.

 

“ MGP Value Allocation ” means the amount obtained by subtracting (a) the product of the ARLP Discounted Common Unit Price multiplied by 15,550,628 from (b) the Net AHGP Equity Capitalization.

 

“ Net AHGP Equity Capitalization ” means the amount obtained by subtracting (a) the fees associated with the AHGP Initial Public Offering from (b) the product of the total number of outstanding AHGP Common Units on the Closing Date multiplied by the AHGP Common Unit Price.

 

“ Permitted Liens ” means Liens (including mechanics’, workers’, repairers’, materialmens’, warehousemens’, landlord’s and other similar Liens) arising in the ordinary course of business as would not individually or in the aggregate materially adversely affect the value of, or materially adversely interfere with the use of, the property subject to them.

 

“ Person ” means an individual, corporation, partnership (limited or general), limited liability company, trust, joint stock company, Governmental Authority, unincorporated association or other legal entity.

 

“ Pricing Date ” means the date of the Underwriting Agreement.

 

“ Registration Rights Agreement ” means the registration rights agreement providing for the registration under the Securities Act of the shares of AHGP Common Units to be received by AMH, AMH II and SGP pursuant to this Contribution Agreement in such form as is attached in Annex A .

 

“ Securities Act ” means the Securities Act of 1933, as amended.

 

“ SGP ” has the meaning set forth in the introductory paragraph hereto.

 

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“ SGP Certificate of Formation ” means the Certificate of Formation of SGP, dated as of May 17, 1999, as amended.

 

“ SGP Limited Liability Company Agreement ” means the Limited Liability Company Agreement of SGP, dated as of May 17, 1999, as amended.

 

“ Underwriting Agreement ” has the meaning set forth in Section 10.1(d).

 

ARTICLE II

CONTRIBUTION TRANSACTIONS

 

Section 2.1 Contribution of MGP and ARLP Common Units to AHGP . Subject to Section 2.7, immediately prior to the Effective Time:

 

(a) AMH will contribute its 25.9% limited liability company interest in MGP and 19,522 ARLP Common Units to AHGP in exchange for an amount of cash equal to the AMH IPO Proceeds and an amount of AHGP Common Units equal to the quotient obtained by dividing

 

(i) the amount obtained by subtracting

 

(A) the AMH IPO Proceeds from

 

(B) the sum of (1) the product of 19,522 multiplied by the ARLP Discounted Common Unit Price, plus (2) the product of 0.259 multiplied by the MGP Value Allocation by

 

(ii) the AHGP Common Unit Price;

 

(b) AMH II will contribute its 74.1% limited liability company interest in MGP and 220,484 ARLP Common Units to AHGP in exchange for an amount of cash equal to the AMH II IPO Proceeds and an amount of AHGP Common Units equal to the quotient obtained by dividing

 

(i) the amount obtained by subtracting

 

(A) the AMH II IPO Proceeds from

 

(B) the sum of (1) the product of 220,484 multiplied by the ARLP Discounted Common Unit Price, plus (2) the product of 0.741 multiplied by the MGP Value Allocation by

 

(ii) the AHGP Common Unit Price; and

 

(c) SGP will contribute 15,310,622 ARLP Common Units to AHGP in exchange for an amount of AHGP Common Units equal to the quotient obtained by dividing

 

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(i) the product of 15,310,622 multiplied by the ARLP Discounted Common Unit Price by

 

(ii) the AHGP Common Unit Price.

 

Section 2.2 Issuance of New Certificates . At the Closing, AHGP shall issue to each of AMH, AMH II and SGP a certificate or certificates representing the number of AHGP Common Units to be issued to such Person pursuant to Section 2.1. Each such certificate shall be registered in the name of the Person or Persons specified by the recipient thereof to AHGP in writing at least two Business Days prior to the Closing.

 

Section 2.3 Certificate Legends . The certificates evidencing AHGP Common Units delivered pursuant to Section 2.2 shall bear a legend substantially in the form set forth below and containing such other information as AHGP may deem necessary or appropriate:

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND SUCH LAWS OR PURSUANT TO AN EXEMPTION THEREFROM WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO COUNSEL FOR THIS LIMITED PARTNERSHIP, IS AVAILABLE.

 

Section 2.4 Fractional Units . No fractional units of AHGP Common Units or scrip shall be issued as a result of the transactions contemplated by Section 2.1. Instead of any fractional units of AHGP Common Units which would otherwise be issuable as a result of the such transactions, the applicable party shall pay a cash adjustment in respect of such fractional interest in a per unit amount equal to the initial public offering price of AHGP Common Units.

 

Section 2.5 Example of Contribution Transactions . Annex 2.5 is provided solely for purposes of illustrating the method of calculation and allocation of the contribution transactions described in Section 2.1. To the extent the ultimate terms of the AHGP Initial Public Offering vary from those assumed in Annex 2.5 , the actual number of AHGP Common Units held by AMH, AMH II and SGP and the cash received by AMH and AMH II following the completion of the AHGP Initial Public Offering will vary accordingly, but shall be calculated in accordance with the terms of this Article II.

 

Section 2.6 Certain Adjustments . The Board may adjust the number of AHGP Common Units to be received by each of AMH, AMH II and SGP pursuant to Section 2.1 in order to reflect a capitalization of AHGP that the Board reasonably determines to be in the best interests of AHGP and its unitholders based on the actual pricing of the initial public offering of AHGP Common Units; provided, however, that any such adjustment shall be made on a pro rata basis in accordance with the relative percentages of total outstanding AHGP Common Units contemplated by Section 2.1.

 

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ARTICLE III

CLOSING

 

Section 3.1 Time and Place . The closing of the transactions contemplated hereby (the “Closing”) shall be held at the offices of Vinson & Elkins L.L.P., 1001 Fannin, Houston, Texas 77002 at 10:00 a.m., Houston time, immediately following the satisfaction or waiver of the conditions contained in Article IX or at such other place or time as the parties hereto may mutually agree. The date of the Closing is referred to herein as the “Closing Date.”

 

Section 3.2 Deliveries at Closing . Subject to the provisions of Article IX hereof, at the Closing there shall be delivered the certificates and other documents required to be delivered pursuant to Article IX hereof.

 

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF AMH

 

AMH represents and warrants to AHGP, AMH II and SGP that the statements contained in this Article IV are correct and complete as of the date hereof.

 

Section 4.1 Organization and Qualification of AMH . AMH is a limited liability company duly organized under the Delaware LLC Act and is validly existing and in good standing under the laws of the State of Delaware. AMH has all requisite limited liability company power and authority to own, operate or lease its properties and to carry on its business as now being conducted. AMH is duly qualified to do business as a foreign limited liability company and is in good standing in each jurisdiction where the character of its properties owned, operated or leased, or the nature of its activities, makes such qualifications necessary, except where the failure to be so qualified and in good standing will not have a material adverse effect on the business, operations, prospects, properties, assets, operating results or condition (financial or otherwise) of AMH.

 

Section 4.2 Authority, Authorization and Enforceability . AMH has the requisite power and authority (corporate or otherwise) to execute and deliver this Contribution Agreement and each instrument required hereby to be executed and delivered by it at the Closing, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by AMH of this Contribution Agreement and each instrument required hereby to be executed and delivered by it at the Closing and the performance of its obligations hereunder and thereunder have been duly and validly authorized by the board of directors of AMH, and no other corporate proceedings of AMH are necessary to authorize the execution and delivery of this Contribution Agreement or the consummation of the transactions contemplated hereby. This Contribution Agreement and each instrument required hereby have been duly executed and delivered by AMH and (assuming due authorization, execution and delivery hereof and thereof by the other parties hereto and thereto) constitute the valid and legally binding obligations of AMH, enforceable against AMH in accordance with their terms, except that (A) such enforceability may be subject to bankruptcy, insolvency, reorganization, moratorium or other laws, decisions or equitable principles now or hereafter in effect relating to or affecting the enforcement of creditors’ rights or debtors’ obligations generally, and to general equity principles, and (B) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

 

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Section 4.3 No Violation . Assuming effectuation of all filings and registrations with, termination or expiration of any applicable waiting periods imposed by, and receipt of all permits and orders of Governmental Authorities required in connection with the consummation of the transactions contemplated by this Contribution Agreement, and the receipt of all approvals or consents required to be obtained from third parties other than AMH, AMH II and SGP (none of which the failure to obtain would, individually or in the aggregate, have a material adverse effect on the ability of AMH to consummate the transactions contemplated by this Contribution Agreement), neither the execution and delivery by AMH of this Contribution Agreement or any instrument required hereby to be executed and delivered by them at the Closing nor the performance by AMH of its obligations hereunder or thereunder will (i) violate or breach the terms of or cause a default under, or result in the termination of, or accelerate the performance required by, or result in a right of termination, cancellation or acceleration of any obligation under, or result in the creation of any Lien upon any of the properties or assets of AMH under (A) any law, regulation or order of any Governmental Authority applicable to AMH, (B) the AMH Operating Agreement or the AMH Certificate of Formation, or (C) any contract, agreement or other instrument or obligation to which AMH is a party or by which it or any of its properties or assets is bound, or (ii) with the passage of time, the giving of notice or the taking of any action by a third party, have any of the effects set forth in clause (i) of this Section 4.3, except in any such case for any matters described in this Section 4.3 that would not have an AHGP Material Adverse Effect.

 

Section 4.4 Title to Assets . AMH has good and indefeasible title to all of its assets and properties, free and clear of all Liens, except for (i) Permitted Liens or (ii) Liens arising in connection with any loan or credit agreement to which AMH is a party.

 

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF AMH II

 

AMH II represents and warrants to AHGP, AMH and SGP that the statements contained in this Article V are correct and complete as of the date hereof.

 

Section 5.1 Organization and Qualification of AMH II . AMH II is a limited liability company duly organized under the Delaware LLC Act and is validly existing and in good standing under the laws of the State of Delaware. AMH II has all requisite limited liability company power and authority to own, operate or lease its properties and to carry on its business as now being conducted. AMH II is duly qualified to do business as a foreign limited liability company and is in good standing in each jurisdiction where the character of its properties owned, operated or leased, or the nature of its activities, makes such qualifications necessary, except where the failure to be so qualified and in good standing will not have a material adverse effect on the business, operations, prospects, properties, assets, operating results or condition (financial or otherwise) of AMH II.

 

Section 5.2 Authority, Authorization and Enforceability . AMH II has the requisite power and authority (corporate or otherwise) to execute and deliver this Contribution Agreement and each instrument required hereby to be executed and delivered by it at the Closing, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by AMH II of this Contribution Agreement and

 

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each instrument required hereby to be executed and delivered by it at the Closing and the performance of its obligations hereunder and thereunder have been duly and validly authorized by the board of directors of AMH II, and no other corporate proceedings of AMH II are necessary to authorize the execution and delivery of this Contribution Agreement or the consummation of the transactions contemplated hereby. This Contribution Agreement and each instrument required hereby have been duly executed and delivered by AMH II and (assuming due authorization, execution and delivery hereof and thereof by the other parties hereto and thereto) constitute the valid and legally binding obligations of AMH II, enforceable against AMH II in accordance with their terms, except that (A) such enforceability may be subject to bankruptcy, insolvency, reorganization, moratorium or other laws, decisions or equitable principles now or hereafter in effect relating to or affecting the enforcement of creditors’ rights or debtors’ obligations generally, and to general equity principles, and (B) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

 

Section 5.3 No Violation . Assuming effectuation of all filings and registrations with, termination or expiration of any applicable waiting periods imposed by, and receipt of all permits and orders of Governmental Authorities required in connection with the consummation of the transactions contemplated by this Contribution Agreement, and the receipt of all approvals or consents required to be obtained from third parties other than AMH, AMH II and SGP (none of which the failure to obtain would, individually or in the aggregate, have a material adverse effect on the ability of AMH II to consummate the transactions contemplated by this Contribution Agreement), neither the execution and delivery by AMH II of this Contribution Agreement or any instrument required hereby to be executed and delivered by them at the Closing nor the performance by AMH II of its obligations hereunder or thereunder will (i) violate or breach the terms of or cause a default under, or result in the termination of, or accelerate the performance required by, or result in a right of termination, cancellation or acceleration of any obligation under, or result in the creation of any Lien upon any of the properties or assets of AMH II under (A) any law, regulation or order of any Governmental Authority applicable to AMH II, (B) the AMH II Operating Agreement or the AMH II Certificate of Formation, or (C) any contract, agreement or other instrument or obligation to which AMH II is a party or by which it or any of its properties or assets is bound, or (ii) with the passage of time, the giving of notice or the taking of any action by a third party, have any of the effects set forth in clause (i) of this Section 5.3, except in any such case for any matters described in this Section 5.3 that would not have an AHGP Material Adverse Effect.

 

Section 5.4 Title to Assets . AMH II has good and indefeasible title to all of its assets and properties, free and clear of all Liens, except for (i) Permitted Liens or (ii) Liens arising in connection with any loan or credit agreement to which AMH II is a party.

 

ARTICLE VI

REPRESENTATIONS AND WARRANTIES OF SGP

 

SGP represents and warrants to AHGP, AMH and AMH II that the statements contained in this Article VI are correct and complete as of the date hereof.

 

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Section 6.1 Organization and Qualification of SGP . SGP is a limited liability company duly organized under the Delaware LLC Act and is validly existing and in good standing under the laws of the State of Delaware. SGP has all requisite limited liability company power and authority to own, operate or lease its properties and to carry on its business as now being conducted. SGP is duly qualified to do business as a foreign limited liability company and is in good standing in each jurisdiction where the character of its properties owned, operated or leased, or the nature of its activities, makes such qualifications necessary, except where the failure to be so qualified and in good standing will not have a material adverse effect on the business, operations, prospects, properties, assets, operating results or condition (financial or otherwise) of SGP.

 

Section 6.2 Authority, Authorization and Enforceability . SGP has the requisite power and authority (corporate or otherwise) to execute and deliver this Contribution Agreement and each instrument required hereby to be executed and delivered by it at the Closing, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by SGP of this Contribution Agreement and each instrument required hereby to be executed and delivered by it at the Closing and the performance of its obligations hereunder and thereunder have been duly and validly authorized by the board of directors of SGP, and no other corporate proceedings of SGP are necessary to authorize the execution and delivery of this Contribution Agreement or the consummation of the transactions contemplated hereby. This Contribution Agreement and each instrument required hereby have been duly executed and delivered by SGP and (assuming due authorization, execution and delivery hereof and thereof by the other parties hereto and thereto) constitute the valid and legally binding obligations of SGP, enforceable against SGP in accordance with their terms, except that (A) such enforceability may be subject to bankruptcy, insolvency, reorganization, moratorium or other laws, decisions or equitable principles now or hereafter in effect relating to or affecting the enforcement of creditors’ rights or debtors’ obligations generally, and to general equity principles, and (B) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

 

Section 6.3 No Violation . Assuming effectuation of all filings and registrations with, termination or expiration of any applicable waiting periods imposed by, and receipt of all permits and orders of Governmental Authorities required in connection with the consummation of the transactions contemplated by this Contribution Agreement, and the receipt of all approvals or consents required to be obtained from third parties other than AMH, AMH II and SGP (none of which the failure to obtain would, individually or in the aggregate, have a material adverse effect on the ability of SGP to consummate the transactions contemplated by this Contribution Agreement), neither the execution and delivery by SGP of this Contribution Agreement or any instrument required hereby to be executed and delivered by them at the Closing nor the performance by SGP of its obligations hereunder or thereunder will (i) violate or breach the terms of or cause a default under, or result in the termination of, or accelerate the performance required by, or result in a right of termination, cancellation or acceleration of any obligation under, or result in the creation of any Lien upon any of the properties or assets of SGP under (A) any law, regulation or order of any Governmental Authority applicable to SGP, (B) the SGP Limited Liability Company Agreement or the SGP Certificate of Formation, or (C) any contract, agreement or other instrument or obligation to which SGP is a party or by which it or any of its

 

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properties or assets is bound, or (ii) with the passage of time, the giving of notice or the taking of any action by a third party, have any of the effects set forth in clause (i) of this Section 6.3, except in any such case for any matters described in this Section 6.3 that would not have an AHGP Material Adverse Effect.

 

Section 6.4 Title to Assets . SGP has good and indefeasible title to all of its assets and properties, free and clear of all Liens, except for (i) Permitted Liens or (ii) Liens arising in connection with any loan or credit agreement to which SGP is a party.

 

ARTICLE VII

REPRESENTATIONS AND WARRANTIES OF AHGP

AND THE GENERAL PARTNER

 

Each of AHGP and the General Partner severally represents and warrants to the other parties to this Contribution Agreement that the statements contained in this Article VII are correct and complete as of the date hereof.

 

Section 7.1 Organization of AHGP and General Partner . AHGP is a limited partnership duly organized under the Delaware LP Act and is validly existing and in good standing under the laws of the State of Delaware. The General Partner is a limited liability company duly organized under the Delaware LLC Act and is validly existing and in good standing under the laws of the State of Delaware. AHGP is a recently formed limited partnership and has no assets, liabilities, business or operations. The General Partner is a recently formed limited liability company and has no assets, liabilities, business or operations.

 

Section 7.2 Capitalization .

 

(a) The General Partner is the sole general partner of AHGP with a general partner interest in AHGP; such general partner interest has been duly authorized and validly issued in accordance with the AHGP Limited Partnership Agreement and is owned by the General Partner free and clear of all Liens (other than those arising under this Contribution Agreement and restrictions on sales to the public of securities under applicable securities laws) and has no outstanding agreement, understanding or obligation to sell, transfer or deliver such general partner interest.

 

(b) Except with respect to the AHGP Initial Public Offering, there are no outstanding subscriptions, options, calls, contracts, commitments, understandings, restrictions, arrangements, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreement obligating AHGP or any subsidiary of AHGP to issue, deliver or sell, or cause to be issued, delivered or sold, additional common units of AHGP or any subsidiary of AHGP or obligating AHGP or any subsidiary of AHGP to grant, extend or enter into any such agreement or commitment.

 

Section 7.3 Authority, Authorization and Enforceability . Each of AHGP and the General Partner has the requisite power and authority (corporate or otherwise) to execute and deliver this Contribution Agreement and each instrument required hereby to be executed and delivered by it at the Closing, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by

 

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the General Partner of this Contribution Agreement and each instrument required hereby to be executed and delivered by it at the Closing and the performance of its obligations hereunder and thereunder have been duly and validly authorized by the board of directors of the General Partner, and no other corporate proceedings of the General Partner are necessary to authorize the execution and delivery of this Contribution Agreement or the consummation of the transactions contemplated hereby. This Contribution Agreement and each instrument required hereby have been duly executed and delivered by each of AHGP and the General Partner and (assuming due authorization, execution and delivery hereof and thereof by the other parties hereto and thereto) constitute the valid and legally binding obligations of each of AHGP and the General Partner, enforceable against each of AHGP and the General Partner in accordance with their terms, except that (A) such enforceability may be subject to bankruptcy, insolvency, reorganization, moratorium or other laws, decisions or equitable principles now or hereafter in effect relating to or affecting the enforcement of creditors’ rights or debtors’ obligations generally, and to general equity principles, and (B) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

 

Section 7.4 No Violation . Assuming effectuation of all filings and registrations with, termination or expiration of any applicable waiting periods imposed by and receipt of all permits and orders of, Governmental Authorities required in connection with the consummation of the transactions contemplated by this Contribution Agreement, neither the execution and delivery by each of AHGP or the General Partner of this Contribution Agreement or any instrument required hereby to be executed and delivered by it at the Closing nor the performance by each of AHGP or the General Partner of its obligations hereunder or thereunder will (i) violate or breach the terms of or cause a default under (A) any law, regulation or order of any Governmental Authority applicable to each of AHGP or the General Partner or (B) the AHGP Certificate of Limited Partnership and the AHGP Limited Partnership Agreement or (ii) with the passage of time, the giving of notice or the taking of any action by a third party, have any of the effects set forth in clause (i) of this Section 7.4, except in any such case for any matters described in this Section 7.4 that would not have an AHGP Material Adverse Effect.

 

ARTICLE VIII

REPRESENTATIONS AND WARRANTIES CONCERNING MGP

 

Each of AMH and AMH II represents and warrants to the other parties hereto that the statements contained in this Article VIII are correct and complete as of the date hereof.

 

Section 8.1 Organization of MGP . MGP is a limited liability company duly organized under the Delaware LLC Act and is validly existing and in good standing under the laws of the State of Delaware. MGP has all requisite limited liability company power and authority to own, operate or lease its properties and to carry on its business as now being conducted. MGP is duly qualified to do business as a foreign limited liability company and is in good standing in each jurisdiction where the character of its properties owned, operated or leased, or the nature of its activities, makes such qualifications necessary, except where the failure to be so qualified and in good standing will not have a material adverse effect on the business, operations, prospects, properties, assets, operating results or condition (financial or otherwise) of MGP.

 

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Section 8.2 Capitalization of MGP . AMH owns beneficially and of record an 25.9% limited liability company interest in MGP. AMH II owns beneficially and of record a 74.1% limited liability company interest in MGP. Each such limited liability company interest has been duly authorized and validly issued in accordance with the MGP LLC Agreement, is fully paid (to the extent required under the MGP LLC Agreement) and nonassessable (except as such nonassessability may be affected by Section 18-607 of the Delaware LLC Act) and is owned free and clear of all Liens (other than those arising under this Contribution Agreement and restrictions on sales to the public of securities under applicable securities laws). There are no outstanding subscriptions, options, calls, contracts, commitments, understandings, restrictions, arrangements, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreement obligating MGP to issue, deliver or sell, or cause to be issued, delivered or sold, additional limited liability company interests in MGP.

 

ARTICLE IX

COVENANTS

 

Section 9.1 Ordinary Course of Business . Between the date of this Contribution Agreement and the earlier to occur of the Effective Time or the termination of this Contribution Agreement, AMH and AMH II will cause MGP to carry on its business diligently and in the ordinary and usual course and consistent with past practice, and, without limiting the generality of the foregoing, and AMH and AMH II will use commercially reasonable efforts to preserve the business organization of MGP intact, keep available the services of its present executive officers and employees and preserve its present relationships with persons having business dealings with it.

 

Section 9.2 HSR and Other Regulatory Matters . Each of the parties hereto agrees to make all necessary filings on a timely basis with respect to the HSR Act, and other applicable laws and will use its commercially reasonable efforts to obtain any other regulatory approvals which may be required to consummate the transactions contemplated herein. Notwithstanding anything in this Contribution Agreement to the contrary, if any party hereto or any Affiliate thereof is required to make a filing under any such acts in connection with the transactions contemplated by this Contribution Agreement, the filing fees of such Person shall be borne by the party whose equity ownership gave rise to such filing obligation.

 

Section 9.3 Commercially Reasonable Efforts . Upon the terms and subject to the conditions hereof, each of the parties hereto agrees to use its commercially reasonable efforts to take, or cause to be taken, all appropriate action, and to do or cause to be done, all things necessary, proper or advisable to consummate and make effective the transactions as contemplated by this Contribution Agreement and to cooperate in connection with the foregoing, including commercially reasonable efforts:

 

(a) to obtain any necessary waivers, consents and approvals from other parties to material notes, licenses, agreements and other instruments and obligations;

 

(b) to obtain any material consents, approvals, authorizations and permits required to be obtained under any federal, state or local statute, rule or regulation;

 

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(c) to defend all lawsuits or other legal proceedings challenging this Contribution Agreement or the consummation of the transactions as contemplated hereby; and

 

(d) to effect promptly all necessary filings and notifications including, but not limited to, filings under the HSR Act, and prompt submissions of information requested by Governmental Authorities.

 

Section 9.4 AHGP Registration Statement. Each of the parties hereto shall cooperate in the preparation and filing of the AHGP Registration Statement and to consummate the AHGP Initial Public Offering. As promptly as is practicable following the execution of this Contribution Agreement, AMH, AMH II and SGP shall cooperate with AHGP to cause such AHGP Registration Statement to be filed with the Commission under and pursuant to the provisions of the Securities Act for the purpose of registering AHGP Common Units for sale to the public in the AHGP Initial Public Offering.

 

Section 9.5 Dissolution . Each of AMH and AMH II shall have dissolved in accordance with Section 18-801 of the Delaware LLC Act within 30 days of the Closing Date and shall take all actions necessary and appropriate to consummate the following within such 30 day period in connection with the foregoing dissolution:

 

(a) each of AMH and AMH II shall have completed the winding up of their respective affairs and distributed their respective assets in accordance with Section 18-803 and Section 18-804 of the Delaware LLC Act; and

 

(b) each of AMH and AMH II shall have filed certificates of cancellation in the office of the Secretary of State of Delaware in accordanc