EXHIBIT 1.1
NATURAL RESOURCE PARTNERS L.P.
4,500,000 COMMON UNITS
REPRESENTING LIMITED PARTNER INTERESTS
UNDERWRITING AGREEMENT
Xxxxxxx Xxxxx Xxxxxx Inc. ______________, 2002
Xxxxxx Brothers Inc.
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxxx Xxxxxxxx Xxxxxx
RBC Xxxx Xxxxxxxx Inc.
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Natural Resource Partners L.P., a limited partnership
organized under the laws of Delaware (the "Partnership"), proposes to issue and
sell to the several underwriters named in Schedule 1 hereto (the "Underwriters")
2,598,750 Common Units and Ark Land Company (the "Selling Unitholder"), a
Delaware corporation and a wholly owned subsidiary of Arch Coal, Inc., a
Delaware corporation ("Arch Coal"), proposes to sell to the Underwriters
1,901,250 Common Units (collectively, the "Firm Units"), in each case
representing limited partner interests in the Partnership (the "Common Units").
The Partnership and the Selling Unitholder also propose to grant to the
Underwriters an option to purchase up to 675,000 additional Common Units to
cover over-allotments (the "Option Units"). The Firm Units and the Option Units,
if purchased, are hereinafter collectively called the "Units." As part of the
public offering of the Units contemplated hereby (the "Offering"), the
Underwriters have agreed to reserve out of the Firm Units up to 315,000 Common
Units for sale to certain officers, employees and directors of our General
Partner (as defined below) or to persons who are otherwise associated or
affiliated with us (collectively, the "Participants"), as set forth in the
Prospectus (as defined herein) under the caption "Underwriting" (the "Directed
Unit Program").
It is understood and agreed to by all parties that the
Partnership was formed to acquire, own and operate certain coal properties and
related assets and liabilities owned by (1) Western Pocahontas Properties
Limited Partnership, a Delaware limited partnership ("WPP"), Great Northern
Properties Limited Partnership, a Delaware limited partnership ("Great
Northern"), and New Gauley Coal Corporation, a West Virginia corporation ("New
Gauley") (collectively the "WPP Coal Business"), and (2) the Selling Unitholder
(the "Arch Coal, Inc. Contributed Properties"), and, thereafter, to manage such
coal properties and related assets and liabilities as more particularly
described in the Prospectus. WPP, Great Northern and New Gauley are sometimes
collectively referred to herein as the "WPP Group."
-1-
It is further understood and agreed by all parties that as of
the date hereof:
(i) NNG LLC, a Delaware limited liability company ("New Gauley
LLC"), is a wholly owned direct subsidiary of New Gauley; WPP LLC, a
Delaware limited liability company ("WPP LLC"), is a wholly owned
direct subsidiary of WPP; GNP LLC, a Delaware limited liability company
("Great Northern LLC"), is a wholly owned direct subsidiary of Great
Northern; and ACIN LLC, a Delaware limited liability company ("Ark
LLC"), is a wholly owned direct subsidiary of the Selling Unitholder;
(ii) GP Natural Resource Partners LLC, a Delaware limited
liability company (the "Managing General Partner"), is directly owned
by Xxxxxxxxx Coal Management LLC ("RCM LLC"), a Delaware limited
liability company, and the Selling Unitholder;
(iii) NRP (GP) LP, a Delaware limited partnership (the
"General Partner"), is owned by New Gauley, WPP, Great Northern, the
Selling Unitholder (as limited partners) and the Managing General
Partner (as its sole general partner);
(iv) the General Partner is the sole general partner of the
Partnership and the Managing General Partner is the sole limited
partner of the Partnership;
(v) NRP (Operating) LLC, a Delaware limited liability company
(the "Operating Company"), is a wholly owned direct subsidiary of the
Partnership; and
(vi) The Operating Company will enter into a $100 million
revolving credit facility (the "Credit Facility") with PNC Bank.
On or prior to the Closing Date (as defined herein), the
Partnership, the Managing General Partner, the General Partner, WPP, WPP LLC,
Great Northern, Great Northern LLC, New Gauley, New Gauley LLC, RCM LLC, the
Selling Unitholder and Ark LLC will enter into a Contribution, Conveyance and
Assumption Agreement (the "Contribution Agreement") pursuant to which the
following transactions will occur:
(b) New Gauley will contribute assets to New Gauley LLC as a
capital contribution in exchange for the assumption by New Gauley LLC of
$1,635,000 in debt related to the assets;
(c) WPP will contribute assets to WPP LLC as a capital
contribution in exchange for the assumption by WPP LLC of $36,000,000 in debt
related to the assets;
(d) Great Northern will contribute assets to Great Northern
LLC as a capital contribution in exchange for the assumption by Great Northern
LLC of $8,922,937 of debt related to the assets;
(e) The Selling Unitholder will contribute assets to Ark LLC
as a capital contribution;
(f) New Gauley will contribute its interest in New Gauley LLC
to the Partnership in exchange for the following Partnership interests: a
0.0368% special limited
-2-
partner interest; 127, 555 Common Units; 220,892 units representing subordinated
limited partnership interests ("Subordinated Units"); and 0.80% of the incentive
distribution rights as defined in the Partnership's partnership agreement
("Incentive Distribution Rights");
(g) WPP will contribute its interest in WPP LLC to the
Partnership in exchange for the following Partnership interests: a 0.9216%
special limited partner interest, 3,458,304 Common Units, 5,531,904 Subordinated
Units and 19.94% of the Incentive Distribution Rights;
(h) Great Northern will contribute its interest in Great
Northern LLC to the Partnership in exchange for the following Partnership
interests: a 0.1966% special limited partner interest, 671,389 Common Units,
1,180,092 Subordinated Units and 4.26% of the Incentive Distribution Rights;
(i) The Selling Unitholder will contribute its interest in Ark
LLC to the Partnership in exchange for the following Partnership interests: a
0.8450% special limited partner interest, 5,072,112 Common Units, 5,072,112
Subordinated Units and 10.00% of the Incentive Distribution Rights;
(j) the Offering of the Firm Units contemplated hereby will be
consummated pursuant to which the public, through the Underwriters, (i) will
contribute $48,596,625 (net of the Underwriters' discount as provided for
herein) to the Partnership in exchange for 2,598,750 Common Units and (ii) will
pay to the Selling Unitholder $38,025,000 (net of the Underwriters' discount as
provided for herein) in exchange for 1,901,250 Common Units;
(k) New Gauley, WPP, Great Northern and the Selling Unitholder
will contribute their special limited partner interests to the General Partner
to maintain their percentage interests in the General Partner, and the special
limited partner interests will be converted to an additional general partner
capital interest in the Partnership;
(l) the Partnership will use the net proceeds of the Offering
to pay transaction expenses in connection with the Offering of the Firm Units
and (i) will retain $1,000,000 for working capital and (ii) will contribute a
portion of the remaining cash to New Gauley LLC, WPP LLC and Great Northern LLC,
each of which will, in turn, use the funds received to repay all or a portion of
their outstanding debt, aggregating $45,120,105; and
(m) the Partnership will contribute its interests in New
Gauley LLC, WPP LLC, Great Northern LLC and Ark LLC to the Operating Company as
a capital contribution.
The transactions described above in clauses (a) through (d)
are referred to as the "Conveyances." The transactions described above in
clauses (a) through (l) are referred to as the "Transactions." In connection
with the Transactions, the parties to the Transactions entered into or will
enter into various bills of sale, assignments, conveyances, contribution
agreements and related documents (collectively, the "Contribution Documents").
New Gauley LLC, WPP LLC, GNP LLC and Arch LLC are collectively
referred to herein as the "Operating Subsidiaries." The Managing General
Partner, the General Partner, the Partnership, the Operating Company and the
Operating Subsidiaries are collectively referred
-3-
to as the "Partnership Group." The members of the Partnership Group together
with Arch Coal, the Selling Unitholder, RCM LLC and the members of the WPP Group
constitute the "NRP Entities."
This is to confirm the agreement among the NRP Entities and
the Underwriters concerning the purchase of the Firm Units and the Option Units
from the Partnership and the Selling Unitholder by the Underwriters.
1. Representations, Warranties and Agreements of the NRP
Entities. Each of the NRP Entities, jointly and severally, represent and warrant
to, and agree with, each Underwriter that:
(a) Definitions. The Partnership has prepared and filed with
the Securities and Exchange Commission (the "Commission") a registration
statement (file number 333-86582) on Form S-1, including a related preliminary
prospectus, in conformity with the requirements of the Securities Act of 1933,
as amended (the "Act"), and the rules and regulations of the Commission
thereunder (the "Rules and Regulations"), for registration under the Act of the
offering and sale of the Units. The registration statement has been declared
effective by the Commission in such form. The Partnership may have filed one or
more amendments thereto, including a related preliminary prospectus, each of
which has previously been furnished to you. A final prospectus containing
information permitted to be omitted at the time of effectiveness by Rule 430A of
the Act will be filed promptly by the Partnership with the Commission in
accordance with Rule 424(b) of the Act. The term "Registration Statement" as
used herein means the registration statement as amended at the time it became
effective under the Act (the "Effective Date"), including financial statements
and all exhibits and, if applicable, the information deemed to be included by
Rule 430A of the Act. If it is contemplated, at the time this Agreement is
executed, that a post-effective amendment to such registration statement will be
filed and must be declared effective before the offering of Units may commence,
the term "Registration Statement" as used herein means the registration
statement as amended by said post-effective amendment. If an abbreviated
registration statement is prepared and filed with the Commission in accordance
with Rule 462(b) or Rule 462(d) under the Act (an "Abbreviated Registration
Statement"), the term "Registration Statement" as used in this Agreement
includes the Abbreviated Registration Statement. The term "Prospectus" as used
herein means the prospectus as first filed with the Commission pursuant to Rule
424(b) of the Act. The term "Preliminary Prospectus" as used herein means each
prospectus included in the Registration Statement or amendment thereto before it
became effective under the Act and any prospectus filed with the Commission by
the Partnership with the consent of the Underwriters pursuant to Rule 424(a) of
the Rules and Regulations. For purposes of this Agreement, the words "amend,"
"amendment," "amended," "supplement" or "supplemented" with respect to the
Registration Statement or the Prospectus shall mean amendments or supplements to
the Registration Statement or the Prospectus, as the case may be.
(b) No Material Misstatements or Omissions. Neither the
Commission nor any state or other jurisdiction or other regulatory body has
issued, and neither is threatening to issue, any stop order under the Act or
other order suspending the effectiveness of the Registration Statement (as
amended or supplemented) or preventing or suspending the use of the Preliminary
Prospectus or the Prospectus or suspending the qualification or registration of
the
-4-
Units for offering or sale in any jurisdiction nor instituted or threatened to
institute proceedings for any such purpose. The Registration Statement conforms,
and any further amendments or supplements to the Registration Statement will,
when they become effective, conform in all material respects to the requirements
of the Act and the Rules and Regulations and do not and will not, as of the
applicable effective date contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus and any supplement or
amendment thereto when filed with the Commission under Rule 424(b) will conform
in all material respects to the requirements of the Act and the Rules and
Regulations, and do not or will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Each of the forward-looking statements made by the Partnership in
such documents, including (but not limited to) statements with respect to future
available cash or future cash distributions of the Partnership or the
anticipated ratio of taxable income to distributions, was made or will be made
with a reasonable basis and in good faith. Notwithstanding the foregoing, no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Partnership by the
Underwriters specifically for inclusion therein.
(c) Formation and Qualification of the Partnership and the
General Partner. Each of the Partnership and the General Partner has been duly
formed and is validly existing in good standing as a limited partnership under
the Delaware Revised Uniform Limited Partnership Act (the "Delaware LP Act")
with full partnership power and authority to own or lease its properties to be
owned or leased at the Closing Date, to assume the liabilities being assumed by
it pursuant to the Contribution Documents and to conduct its business to be
conducted at the Closing Date, and, in the case of the General Partner, to act
as the general partner of the Partnership, in each case in all material respects
as described in the Registration Statement and the Prospectus. Each of the
Partnership and the General Partner is, or at the Closing Date will be, duly
registered or qualified as a foreign limited partnership for the transaction of
business under the laws of each jurisdiction in which the character of the
business conducted by it or the nature or location of the properties owned or
leased by it makes such registration or qualification necessary, except where
the failure so to register or qualify would not (i) have a material adverse
effect on the condition (financial or otherwise), business, prospects, assets or
results of operations of the Partnership Group taken as a whole (a "Material
Adverse Effect") or (ii) subject the limited partners of the Partnership to any
material liability or disability.
(d) Formation and Qualification of the Managing General
Partner. The Managing General Partner has been duly formed and is validly
existing in good standing as a limited liability company under the Delaware
Limited Liability Company Act (the "Delaware LLC Act") with full limited
liability company power and authority to own or lease its properties to be owned
or leased at the Closing Date, to assume the liabilities being assumed by it
pursuant to the Contribution Documents, to conduct its business to be conducted
at the Closing Date and to act as managing general partner of the Partnership,
in all material respects as described in the Registration Statement and the
Prospectus. The Managing General Partner is, or at the Closing Date will be,
duly registered or qualified as a foreign limited liability company for the
transaction of business under the laws of each jurisdiction in which the
character of the business conducted by it or the nature or location of the
properties owned or leased by it makes such
-5-
registration or qualification necessary, except where the failure so to register
or qualify would not (i) have a Material Adverse Effect or (ii) subject the
limited partners of the Partnership to any material liability or disability.
(e) Formation and Qualification of the Operating Company, the
Operating Subsidiaries and RCM LLC. Each of the Operating Company, the Operating
Subsidiaries and RCM LLC has been duly formed and is validly existing in good
standing as a limited liability company under the Delaware Limited Liability
Company Act (the "Delaware LLC Act") with full limited liability company power
and authority to own or lease its properties to be owned or leased at the
Closing Date, to assume the liabilities being assumed by it pursuant to the
Contribution Documents and to conduct its business to be conducted at the
Closing Date, in each case in all material respects as described in the
Registration Statement and the Prospectus. Each of the Operating Company and the
Operating Subsidiaries is, or at the Closing Date will be, duly registered or
qualified as a foreign limited liability company for the transaction of business
under the laws of each jurisdiction in which the character of the business
conducted by it or the nature or location of the properties owned or leased by
it makes such registration or qualification necessary, except where the failure
so to register or qualify would not (i) have a Material Adverse Effect or (ii)
subject the limited partners of the Partnership to any material liability or
disability.
(f) Existence and Good Standing of Arch Coal and the Selling
Unitholder. Each of Arch and the Selling Unitholder is a corporation duly
incorporated and validly existing in good standing under the Delaware General
Corporation Law (the "DGCL") with full corporate power and authority to own and
lease its properties to be owned and leased at the Closing Date and to conduct
its business at the Closing Date.
(g) Existence and Good Standing of the WPP Group. Each of WPP
and Great Northern has been duly formed and validly existing in good standing as
a limited partnership under the Delaware LP Act with full partnership power and
authority to own or lease its properties to be owned or leased at the Closing
Date and to conduct its business at the Closing Date. New Gauley is a
corporation duly incorporated and validly existing in good standing under the
laws of the State of West Virginia with full corporate power and authority to
own and lease its properties to be owned and leased at the Closing Date, and to
conduct its business at the Closing Date.
(h) Ownership of the General Partner Interest in the
Partnership. At the Closing Date and the Option Closing Date, after giving
effect to the Transactions, the General Partner will be the sole general partner
of the Partnership with a 2.0% general partner interest in the Partnership; such
general partner interest will be duly authorized and validly issued in
accordance with the partnership agreement of the Partnership (as the same may be
amended and restated at or prior to the Closing Date, the "Partnership
Agreement"); and the General Partner will own such general partner interest free
and clear of all liens, encumbrances, security interests, equities, charges or
claims.
(i) Ownership of the Sponsor Units and Incentive Distribution
Rights. At the Closing Date, after giving effect to the Transactions immediately
preceding the Offering, (i) WPP, Great Northern and New Gauley will own
3,458,304, 737,742 and 138,092 Common
-6-
Units, respectively, and 5,531,904, 1,180,092 and 220,892 Subordinated Units,
respectively, and (ii) the Selling Unitholder will own 5,072,112 Common Units
and 5,072,112 Subordinated Units (all such Common and Subordinated Units owned
by the WPP Group and the Selling Unitholder being collectively referred to
herein as the "Sponsor Units"); all of such Sponsor Units and the limited
partner interests represented thereby will be duly authorized and validly issued
in accordance with the Partnership Agreement, and will be fully paid (to the
extent required under the Partnership Agreement) and nonassessable (except as
such nonassessability may be affected by Section 17-607 of the Delaware LP Act);
after giving effect to the Transactions, WPP, Great Northern and New Gauley will
own 19.94%, 4.26% and 0.80%, respectively, of the Incentive Distribution Rights
and the Selling Unitholder will own 10.00% of the Incentive Distribution Rights,
and such Incentive Distribution Rights will be duly authorized and validly
issued in accordance with the Partnership Agreement, and will be fully paid (to
the extent required under the Partnership Agreement) and nonassessable (except
as such nonassessability may be affected by Section 17-607 of the Delaware LP
Act); and each of WPP, Great Northern, New Gauley and the Selling Unitholder
will own its Sponsor Units and the Incentive Distribution Rights free and clear
of all liens, encumbrances (except, with respect to the Incentive Distribution
Rights, restrictions on transferability contained in Section 4.7 of the
Partnership Agreement), security interests, equities, charges or claims.
(j) Valid Issuance of the Units. At the Closing Date or the
Option Closing Date, as the case may be, the Firm Units or the Option Units to
be sold by the Partnership and the limited partner interests represented
thereby, will be duly authorized by the Partnership Agreement and, when issued
and delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid (to the extent required
under the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by Section 17-607 of the Delaware LP Act); and
other than the Sponsor Units and the Incentive Distribution Rights, the Units
will be the only limited partner interests of the Partnership issued and
outstanding at the Closing Date or the Option Closing Date.
(k) Ownership of the Operating Company. At the Closing Date
and the Option Closing Date, after giving effect to the Transactions, the
Partnership will own a 100% membership interest in the Operating Company; such
membership interest will be duly authorized and validly issued in accordance
with the limited liability company agreement of the Operating Company (as the
same may be amended and restated at or prior to the Closing Date or the Option
Closing Date, the "Operating Company LLC Agreement") and will be fully paid (to
the extent required under the Operating Company LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Section 18-607 of the
Delaware LLC Act); and the Partnership will own such membership interest free
and clear of all liens, encumbrances, security interests, equities, charges or
claims.
(l) Ownership of the Operating Subsidiaries. At the Closing
Date and the Option Closing Date, after giving effect to the Transactions, the
Operating Company will own a 100% membership interest in each of the Operating
Subsidiaries; such membership interests will be duly authorized and validly
issued in accordance with the limited liability company agreements of the
Operating Subsidiaries (as the same may be amended and restated at or prior to
the Closing Date, the "Operating Subsidiaries LLC Agreements") and will be fully
paid (to the extent required under the Operating Subsidiaries LLC Agreements)
and nonassessable (except as
-7-
such nonassessability may be affected by Section 18-607 of the Delaware LLC
Act); and the Operating Company will own such membership interests free and
clear of all liens, encumbrances, security interests, equities, charges or
claims.
(m) Ownership of the General Partner. At the Closing Date and
the Option Closing Date, after giving effect to the Transactions, the Managing
General Partner will be the sole general partner of the General Partner with a
0.001% general partner interest in the General Partner; such general partner
interest will be duly authorized and validly issued in accordance with the
partnership agreement of the General Partner (as the same may be amended and
restated at or prior to the Closing Date, the "General Partner Partnership
Agreement"); and the Managing General Partner will own such general partner
interest free and clear of all liens, encumbrances, security interests,
equities, charges or claims. At the Closing Date and the Option Closing Date,
after giving effect to the Transactions, WPP, Great Northern, New Gauley and the
Selling Unitholder will own a ____%, ____%, ____% and ____% limited partner
interest, respectively, in the General Partner; each such limited partner
interest will be duly authorized and validly issued in accordance with the
General Partner Partnership Agreement and will be fully paid (to the extent
required under the General Partner Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by Section 17-607 of the
Delaware LP Act); and WPP, Great Northern, New Gauley and the Selling Unitholder
will own such limited partner interests free and clear of all liens,
encumbrances, security interests, equities, charges or claims.
(n) Ownership of the Managing General Partner. At the Closing
Date and Option Closing Date, after giving effect to the Transactions, RCM LLC
and the Selling Unitholder will own a 57.75% and a 42.25% membership interest,
respectively, in the Managing General Partner; such membership interests will be
duly authorized and validly issued in accordance with the limited liability
company agreement of the Managing General Partner (as the same may be amended
and restated at or prior to the Closing Date, the "Managing General Partner LLC
Agreement") and will be fully paid (to the extent required under the Managing
General Partner LLC Agreement) and nonassessable (except as such
nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and
RCM LLC and the Selling Unitholder will own such membership interests free and
clear of all liens, encumbrances, security interests, equities, charges or
claims.
(o) Ownership of the Selling Unitholder. At the Closing Date
and the Option Closing Date, after giving effect to the Transactions, Arch Coal
will own 100% of the issued and outstanding capital stock of the Selling
Unitholder; such capital stock will be duly authorized and validly issued and
will be fully paid and nonassessable; and Arch Coal will own such capital stock
free and clear of all liens, encumbrances, security interests, equities, charges
or claims.
(p) No Other Subsidiaries. Other than the Partnership's
ownership of a 100% membership interest in the Operating Company and the
Operating Company's ownership of a 100% membership interest in the Operating
Subsidiaries, neither the Partnership nor the Operating Company will own at the
Closing Date and the Option Closing Date, directly or indirectly, any equity or
long-term debt securities of any corporation, partnership, limited liability
company, joint venture, association or other entity. Other than its ownership of
its partnership interests in the Partnership, the General Partner will not own
at the Closing Date and
-8-
Option Closing Date, directly or indirectly, any equity or long-term debt
securities of any corporation, partnership, limited liability company, joint
venture, association or other entity.
(q) No Preemptive Rights, Registration Rights or Options.
Except as described in the Prospectus, there are no preemptive rights or other
rights to subscribe for or to purchase, nor any restriction upon the voting or
transfer of, any partnership or member interests of any member of the
Partnership Group, in each case pursuant to the agreement or certificate of
limited partnership, limited liability company agreement, certificate of
formation or other organizational documents of any member of the Partnership
Group (collectively, the "Organizational Documents"), or any other agreement or
instrument to which any of such entities is a party or by which any of them may
be bound. Neither the filing of the Registration Statement nor the offering or
sale of the Units as contemplated by this Agreement gives rise to any rights for
or relating to the registration of any Units or other securities of the
Partnership. Except as described in the Prospectus, there are no outstanding
options or warrants to purchase any partnership or member interests of any
member of the Partnership Group.
(r) Authority and Authorization. The Partnership has all
requisite power and authority to issue, sell and deliver (i) the Units to be
sold by it, in accordance with and upon the terms and conditions set forth in
this Agreement, the Partnership Agreement, the Registration Statement and the
Prospectus, and (ii) the Sponsor Units and the Incentive Distribution Rights, in
accordance with the terms and conditions set forth in the Partnership Agreement
and the Contribution Documents. At the Closing Date and the Option Closing Date,
all corporate, partnership and limited liability company action, as the case may
be, required to be taken by the NRP Entities or any of their stockholders,
partners or members for the authorization, issuance, sale and delivery of the
Units, the Sponsor Units and the Incentive Distribution Rights, the execution
and delivery of the Operative Agreements (as defined in Section l(u)) and the
consummation of the transactions (including the Transactions) contemplated by
this Agreement and the Operative Agreements, shall have been validly taken.
(s) Enforceability of Agreement. This Agreement has been duly
authorized, validly executed and delivered by each of the NRP Entities and
constitutes the valid and legally binding agreement of each of the NRP Entities,
enforceable against each of them in accordance with its terms; provided that the
enforceability hereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
provided, further, that the indemnity, contribution and exoneration provisions
contained hereunder may be limited by applicable laws and public policy.
(t) Conformity of Securities to Description in Prospectus. The
Units to be issued by the Partnership, when issued and delivered in accordance
with the terms of the Partnership Agreement and against payment therefor as
provided herein, and the Sponsor Units and the Incentive Distribution Rights,
when issued and delivered in accordance with the terms of the Partnership
Agreement, will conform in all material respects to the descriptions thereof
contained in the Prospectus.
(u) Enforceability of Other Agreements. At or before the
Closing Date:
-9-
(i) the Partnership Agreement will be duly authorized,
executed and delivered by the General Partner and the Managing General
Partner as the "Organizational Limited Partner," and will be a valid
and legally binding agreement of the General Partner and the
Organizational Limited Partner, enforceable against the General Partner
and the Organizational Limited Partner in accordance with its terms;
(ii) the General Partner Partnership Agreement will be duly
authorized, executed and delivered by the WPP Group, the Managing
General Partner and [Arch Coal], and will be a valid and legally
binding agreement of the WPP Group, the Managing General Partner and
the Selling Unitholder, enforceable against the WPP Group, the Managing
General Partner and the Selling Unitholder in accordance with its
terms;
(iii) the Managing General Partner LLC Agreement will be duly
authorized, executed and delivered by RCM LLC and the Selling
Unitholder and will be a valid and legally binding agreement of RCM LLC
and the Selling Unitholder, enforceable against RCM LLC and the Selling
Unitholder in accordance with its terms;
(iv) the Operating Company LLC Agreement will be duly
authorized, executed and delivered by the Partnership and will be a
valid and legally binding agreement of the Partnership, enforceable
against the Partnership in accordance with its terms;
(v) each of the Operating Subsidiaries LLC Agreements will be
duly authorized, executed and delivered by the Operating Company and
will be a valid and legally binding agreement of the Operating Company,
enforceable against the Operating Company in accordance with its terms;
(vi) the Credit Facility will be duly authorized, executed and
delivered by the Operating Company and will be a valid and legally
binding agreement of the Operating Company enforceable against it in
accordance with its terms;
(vii) each of the Coal Mining Lease Agreements by and among
Ark LLC and the Selling Unitholder (the "Arch Leases") will be duly
authorized, executed and delivered by Ark LLC and the Selling
Unitholder and will be valid and legally binding agreements of Ark LLC
and the Selling Unitholder, enforceable against them in accordance with
their terms;
(viii) each of the Contribution Documents will be duly
authorized, executed and delivered by the parties thereto and will be a
valid and legally binding agreement of each of them, enforceable
against each of them in accordance with its terms;
(ix) the omnibus agreement (the "Omnibus Agreement") will be
duly authorized, executed and delivered by each of Arch Coal, the
Selling Unitholder, RCM LLC, Xxxxxx X. Xxxxxxxxx, WPP, Great Northern,
New Gauley, the Managing General Partner, the General Partner, the
Partnership and the Operating Company, and will be a
-10-
valid and legally binding agreement of each of them, enforceable
against each of them in accordance with its terms;
provided that, with respect to each agreement described in this Section 1(t),
the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and, provided further, that the indemnity, contribution and exoneration
provisions contained in any of such agreements may be limited by applicable laws
and public policy. The Partnership Agreement, the General Partner Partnership
Agreement, the Managing General Partner LLC Agreement, the Operating Company LLC
Agreement, the Operating Subsidiaries LLC Agreements, the Credit Facility, the
Arch Leases, the Contribution Documents and the Omnibus Agreement are herein
collectively referred to as the "Operative Agreements."
(v) Sufficiency of Transferred Assets Under Contribution
Documents. The Contribution Documents will be legally sufficient to transfer or
convey to the Operating Company and the Operating Subsidiaries all properties
not already held by them that are, individually or in the aggregate, required to
enable the Operating Company and the Operating Subsidiaries to conduct their
operations (in all material respects as contemplated by the Registration
Statement and the Prospectus), subject to the conditions, reservations and
limitations contained in Contribution Documents and those set forth in the
Registration Statement and the Prospectus. The Operating Company and the
Operating Subsidiaries, upon execution and delivery of the Contribution
Documents, succeeded or will succeed in all material respects to the business,
assets, properties, liabilities and operations of the WPP Coal Business and the
Arch Coal, Inc. Contributed Properties as reflected in the financial statements
of WPP, Great Northern, New Gauley and the Arch Coal, Inc. Contributed
Properties, except as disclosed in the Registration Statement and the Prospectus
and the Contribution Documents.
(w) No Conflicts. None of the offering, issuance and sale by
the Partnership or the offering and sale by the Selling Unitholder of the Units,
the execution, delivery and performance of this Agreement or the Operative
Agreements by the parties hereto or thereto, or the consummation of the
transactions contemplated hereby and thereby (including the Transactions) (i)
conflicts or will conflict with or constitutes or will constitute a violation of
the Organizational Documents of the NRP Entities, (ii) conflicts or will
conflict with or constitutes or will constitute a breach or violation of, or a
default (or an event that, with notice or lapse of time or both, would
constitute such a default) under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which any of the NRP
Entities is a party or by which any of them or any of their respective
properties may be bound, (iii) violates or will violate any statute, law or
regulation or any order, judgment, decree or injunction of any court or
governmental agency or body directed to any of the NRP Entities or any of their
properties in a proceeding to which any of them or their property is a party, or
(iv) results or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of any of the NRP Entities, which
conflicts, breaches, violations, defaults or liens, in the case of clauses (ii),
(iii) or (iv), would, individually or in the aggregate, have a Material Adverse
Effect or could materially impair the ability of any of the NRP Entities to
perform their obligations under this Agreement or the Operative Agreements.
-11-
(x) No Consents. No permit, consent, approval, authorization,
order, registration, filing or qualification ("consent") of or with any court,
governmental agency or body having jurisdiction over the NRP Entities or any of
their respective properties is required in connection with the offering,
issuance and sale by the Partnership or the offering and sale by the Selling
Unitholder of the Units, the execution, delivery and performance of this
Agreement and the Operative Agreements by the NRP Entities parties thereto, or
the consummation by the NRP Entities of the transactions contemplated by this
Agreement or the Operative Agreements (including the Transactions), except (i)
for such consents required under the Act, the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and state securities or "Blue Sky" laws, (ii)
for such consents that have been, or prior to the Closing Date will be,
obtained, (iii) for such consents that, if not obtained, would not, individually
or in the aggregate, have a Material Adverse Effect or could materially impair
the ability of any of the NRP Entities to perform their obligations under this
Agreement or the Operative Agreements, and (iv) as disclosed in the Prospectus.
(y) No Default. None of the NRP Entities is (i) in violation
of its Organizational Documents, (ii) in violation of any law, statute,
ordinance, administrative or governmental rule or regulation applicable to it or
of any order, judgment, decree or injunction of any court or governmental agency
or body having jurisdiction over it, or (iii) in breach, default (and no event
that, with notice or lapse of time or both, would constitute such a default has
occurred or is continuing) or violation in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any agreement, indenture, lease or other
instrument to which it is a party or by which it or any of its properties may be
bound, which breach, default or violation, in the case of clause (ii) or (iii),
would, if continued, have a Material Adverse Effect, or could materially impair
the ability of any of the NRP Entities to perform their obligations under this
Agreement or the Operative Agreements. To the knowledge of the NRP Entities, no
third party to any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which any of the NRP Entities is a party or by
which any of them are bound or to which any of their properties are subject, is
in default under any such agreement, which breach, default or violation would,
if continued, have a Material Adverse Effect.
(z) Independent Public Accountants. The accountants, Ernst &
Young LLP, who have certified or shall certify the audited financial statements
included in the Registration Statement and the Prospectus (or any amendment or
supplement thereto) are independent public accountants with respect to the NRP
Entities as required by the Act.
(aa) Financial Statements. At March 31, 2002, the Partnership
had, on a consolidated pro forma basis as indicated in the Prospectus (and any
amendment or supplement thereto), a capitalization as set forth therein. The
historical financial statements (including the related notes and supporting
schedules) of the WPP Coal Business and the Arch Coal, Inc. Contributed
Properties included in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) present fairly in all material respects the
financial position, results of operations and cash flows of the entities
purported to be shown thereby on the basis stated therein at the respective
dates or for the respective periods and have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except to the extent disclosed therein. The selected pro forma
financial and
-12-
operating data set forth in the Registration Statement and the Prospectus (and
any amendment or supplement thereto) under the caption "Selected Pro Forma
Financial and Operating Data" is accurately presented in all material respects
and prepared on a basis consistent with the audited and unaudited historical
financial statements and pro forma financial statements from which it has been
derived. The pro forma financial statements of the Partnership included in the
Registration Statement, the Preliminary Prospectus dated __________, 2002 and
the Prospectus (and any amendment or supplement thereto) have been prepared in
all material respects in accordance with the applicable accounting requirements
of Article 11 of Regulation S-X of the Commission; the assumptions used in the
preparation of such pro forma financial statements are, in the opinion of the
management of the NRP Entities, reasonable; and the pro forma adjustments
reflected in such pro forma financial statements have been properly applied to
the historical amounts in compilation of such pro forma financial statements.
(bb) No Material Adverse Change. None of the NRP Entities has
sustained since the date of the latest audited financial statements included in
the Registration Statement and the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
investigation, order or decree, otherwise than as set forth or contemplated in
the Registration Statement and the Prospectus. Except as disclosed in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), subsequent to the respective dates as of which such information is
given in the Registration Statement and the Prospectus (or any amendment or
supplement thereto), (i) none of the NRP Entities has incurred any liability or
obligation, indirect, direct or contingent, or entered into any transactions,
not in the ordinary course of business, that, singly or in the aggregate, is
material to the NRP Entities, (ii) there has not been any material change in the
capitalization or material increase in the short-term debt or long-term debt of
the NRP Entities and (iii) there has not been any material adverse change, or
any development involving or which may reasonably be expected to involve, singly
or in the aggregate, a prospective material adverse change in or affecting the
general affairs, condition (financial or other), business, prospects, assets or
results of operations of the NRP Entities, taken as a whole.
(cc) No Distribution of Other Offering Materials. None of the
NRP Entities has distributed and, prior to the later to occur of (i) the Closing
Date and (ii) completion of the distribution of the Units, will not distribute,
any prospectus (as defined under the Act) in connection with the offering and
sale of the Units other than the Registration Statement, any Preliminary
Prospectus, the Prospectus or other materials, if any, permitted by the Act,
including Rule 134 of the Rules and Regulations.
(dd) Title to Properties. At the Closing Date and the Option
Closing Date, the Operating Company and the Operating Subsidiaries will have
good and indefeasible title to all real property and good title to all personal
property described in the Registration Statement and the Prospectus to be owned
by the Operating Company and the Operating Subsidiaries, free and clear of all
(i) liens and security interests except liens or security interests securing
indebtedness incurred, assumed or agreed to by the Operating Company or any of
the Operating Subsidiaries specifically listed in any of the Contribution
Documents or (ii) other claims and other encumbrances (other than liens or
security interests) except (1) as described, and subject to the limitations
contained, in the Registration Statement and the Prospectus or (2) such as do
not
-13-
materially interfere with the use of such properties taken as a whole as they
have been used in the past and are proposed to be used in the future as
described in the Registration Statement and Prospectus; provided that, with
respect to any real property and buildings held under lease by the Operating
Company and the Operating Subsidiaries, such real property and buildings are
held under valid and subsisting and enforceable leases with such exceptions as
do not materially interfere with the use of such properties taken as a whole as
they have been used in the past and are proposed to be used in the future as
described in the Prospectus.
(ee) Rights-of-Way. At the Closing Date and the Option Closing
Date, each member of the Partnership Group will have such consents, easements,
rights-of-way, permits or licenses from each person (collectively,
"rights-of-way") as are necessary to conduct its business in the manner
described, and subject to the limitations contained, in the Prospectus, except
for (i) qualifications, reservations and encumbrances as may be set forth in the
Prospectus which are not reasonably expected to have a material adverse effect
upon the ability of the Partnership Group, taken as a whole, to conduct their
businesses in all material respects as currently conducted and as contemplated
by the Prospectus to be conducted and (ii) such rights-of-way that, if not
obtained, would not have, individually or in the aggregate, a material adverse
effect upon the ability of the Partnership Group, taken as a whole, to conduct
their businesses in all material respects as currently conducted and as
contemplated by the Prospectus to be conducted; other than as set forth, and
subject to the limitations contained, in the Prospectus, the Partnership Group
has, or at the Closing Date will have, fulfilled and performed all its material
obligations with respect to such rights-of-way and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or termination
thereof or would result in any impairment of the rights of the holder of any
such rights-of-way, except for such revocations, terminations and impairments
that would not have a material adverse effect upon the ability of the
Partnership Group, taken as a whole, to conduct their businesses in all material
respects as currently conducted and as contemplated by the Prospectus to be
conducted; and, except as described in the Prospectus, none of such
rights-of-way contains any restriction that is materially burdensome to the
Partnership Group, taken as a whole.
(ff) Permits. The Partnership has, or at the Closing Date and
the Option Closing Date will have, such permits, consents, licenses, franchises,
certificates and authorizations of governmental or regulatory authorities
("permits") as are necessary to own or lease its properties and to conduct its
business in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Registration Statement and the
Prospectus and except for such permits that, if not obtained, would not have,
individually or in the aggregate, a Material Adverse Effect; the Partnership
Group has, or at the Closing Date and the Option Closing Date will have,
fulfilled and performed all its material obligations with respect to such
permits in the manner described, and subject to the limitations contained, in
the Prospectus and no event has occurred that would prevent the permits from
being renewed or reissued or that allows, or after notice or lapse of time would
allow, revocation or termination thereof or results or would result in any
impairment of the rights of the holder of any such permit, except for such
non-renewals, non-issues, revocations, terminations and impairments that would
not, individually or in the aggregate, have a Material Adverse Effect and,
except as described in the Registration Statement and Prospectus, none of such
permits contains any restriction that is materially burdensome to the
Partnership Group, taken as a whole.
-14-
(gg) Books and Records. The Partnership (i) makes and keeps
books, records and accounts that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of assets and (ii) maintains systems
of internal accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management's general or
specific authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access to
assets is permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(hh) Tax Returns. Each of the NRP Entities has filed (or has
obtained extensions with respect to) all material federal, state and foreign
income and franchise tax returns required to be filed through the date hereof,
which returns are complete and correct in all material respects, and has timely
paid all taxes shown to be due pursuant to such returns, other than those (i)
that are being contested in good faith and for which adequate reserves have been
established in accordance with generally accepted accounting principles or (ii)
that, if not paid, would not have a Material Adverse Effect.
(ii) Investment Company/Public Utility Holding Company. None
of the members of the Partnership Group is now, and after sale of the Units to
be sold by the Partnership hereunder and application of the net proceeds from
such sale as described in the Prospectus under the caption "Use of Proceeds"
will be, (i) an "investment company" or a company "controlled by" an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or (ii) a "public utility company," "holding company" or a "subsidiary company"
of a "holding company" under the Public Utility Holding Company Act of 1935, as
amended.
(jj) Environmental Compliance. Except as described in the
Prospectus, the members of the Partnership Group (i) are in compliance with any
and all applicable federal, state and local laws and regulations relating to the
protection of human health and safety and the environment or imposing liability
or standards of conduct concerning any Hazardous Materials (as defined below)
("Environmental Laws"), (ii) have received all permits required of them under
applicable Environmental Laws to conduct their respective businesses, (iii) are
in compliance with all terms and conditions of any such permits and (iv) do not
have any liability in connection with the release into the environment of any
Hazardous Material, except where such noncompliance with Environmental Laws,
failure to receive required permits, failure to comply with the terms and
conditions of such permits or liability in connection with such releases would
not, individually or in the aggregate, have a Material Adverse Effect. The term
"Hazardous Material" means (A) any "hazardous substance" as defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, (B) any "hazardous waste" as defined in the Resource Conservation and
Recovery Act, as amended, (C) any petroleum or petroleum product, (D) any
polychlorinated biphenyl and (E) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material, waste or substance regulated under or
within the meaning of any other Environmental Law. In the ordinary course of
business, the Partnership Group periodically reviews the effect of Environmental
Laws on their business, operations and properties, in the course of which they
identify and evaluate associated costs and
-15-
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). On the
basis of such review, the Partnership Group has reasonably concluded that such
associated costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect.
(kk) No Labor Dispute. No labor problem or dispute with the
employees of the NRP Entities exists or is threatened or imminent and the NRP
Entities are not aware of any existing or imminent labor disturbance by the
employees of any NRP Entities' principal suppliers, contractors or customers
that could have a Material Adverse Effect.
(ll) Insurance. The Partnership Group maintains insurance with
insurers of recognized financial responsibility covering their properties,
operations, personnel and businesses against such losses and risks and in such
amounts as are reasonably adequate to protect them and their businesses in a
manner consistent with other businesses similarly situated. None of the members
of the Partnership Group 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 and on the Option Closing Date.
(mm) Litigation. Except as described in the Prospectus, there
is (i) no action, suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending or, to
the knowledge of the NRP Entities, threatened, to which any of the NRP Entities
is or may be a party or to which the business or property of any of the NRP
Entities is or may be subject, (ii) no statute, rule, regulation or order that
has been enacted, adopted or issued by any governmental agency or that has been
proposed by any governmental agency, and (iii) no injunction, restraining order
or order of any nature issued by a federal or state court or foreign court of
competent jurisdiction to which any of the NRP Entities is or may be subject,
that, in the case of clauses (i), (ii) and (iii) above, is reasonably expected
to (A) individually or in the aggregate have a Material Adverse Effect, (B)
prevent or result in the suspension of the offering and issuance of the Units,
or (C) in any manner draw into question the validity of this Agreement or any
Operative Agreement.
(nn) Private Placement. The offer, sale and issuance of the
Sponsor Units and the Incentive Distribution Rights to the WPP Group and the
Selling Unitholder pursuant to the Partnership Agreement are exempt from the
registration requirements of the Act and the securities laws of any state having
jurisdiction with respect thereto, and none of the members of the WPP Group or
the Selling Unitholder has taken or will take any action that would cause the
loss of such exemption.
(oo) NYSE Listing. The Units have been approved for listing on
the New York Stock Exchange ("NYSE"), subject only to official notice of
issuance.
(pp) Directed Unit Sales. None of the Directed Units
distributed in connection with the Directed Unit Program will be offered or sold
outside of the United States. None of the
-16-
NRP Entities has offered, or caused the Underwriters to offer, Units to any
person pursuant to the Directed Share Program with the specific intent to
unlawfully influence (i) a customer or supplier of the NRP Entities to alter the
customer's or supplier's level or type of business with the NRP Entities, or
(ii) a trade journalist or publication to write or publish favorable information
about the NRP Entities or their products.
Any certificate signed by any officer of any NRP Entity and
delivered to the Underwriters or to counsel for the Underwriters in connection
with the offering shall be deemed a representation and warranty by such NRP
Entity, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale of the Units. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Partnership agrees to sell 2,598,750 Firm Units, and the Selling
Unitholder agrees to sell 1,901,250 Firm Units, to the several Underwriters, and
each Underwriter agrees, severally and not jointly, to purchase from the
Partnership and the Selling Unitholder, at a purchase price of $_____ per Unit,
the number of Firm Units set forth opposite that Underwriter's name in Schedule
1 hereto.
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Partnership and the Selling
Unitholder grants to the Underwriters an option to purchase, severally and not
jointly, up to 675,000 Option Units at the same purchase price per unit as the
Underwriters shall pay for the Firm Units. Subject to the third paragraph of
this Section 2, the Option Units shall be purchased 57.75% from the Partnership
and 42.25% from the Selling Unitholder. Said option may be exercised only to
cover over-allotments in the sale of the Firm Units by the Underwriters. Said
option may be exercised in whole or in part at any time and from time to time on
or before the 30th day after the date of the Prospectus upon written or
telegraphic notice by Xxxxxxx Xxxxx Xxxxxx Inc. to the Partnership and the
Selling Unitholder setting forth the number of Option Units as to which the
several Underwriters are exercising the option. The number of Option Units to be
purchased by each Underwriter shall be the same percentage of the total number
of Option Units to be purchased by the several Underwriters as the number of the
Firm Units set forth opposite the name of such Underwriter on Schedule I hereto
bears to the aggregate number of the Firm Units, subject to such adjustments as
Xxxxxxx Xxxxx Barney Inc. in its absolute discretion shall make to eliminate any
fractional shares.
To the extent the Underwriters do not exercise the option
described in this Section 2 in full within the time period set forth in Section
3, Great Northern shall purchase 9.83% of (675,000 Common Units less the number
of Option Units purchased by the Underwriters) from the Partnership at a price
of $_____ per Unit and in the manner provided in Section 3 below. In addition,
to the extent that the Underwriters exercise the option described in this
Section 2 for less than 572,663 Option Units, then New Gauley shall purchase
1.84% of (572,663 Common Units less the number of Option Units purchased by the
Underwriters) from the Partnership at a price of $____ per Unit and in the
manner provided in Section 3 below.
3. Delivery of and Payment for the Units. Delivery of and
payment for the Firm Units and the Option Units (if the option provided for in
Section 2 hereof shall have been exercised on or before the third Business Day
(as defined herein) prior to the Closing Date) shall
-17-
be made at 11:00 A.M., Houston, Texas time, on ___________, 2002 at the offices
of Xxxxxx & Xxxxxx L.L.P., Houston, Texas or at such time on such later date not
more than three Business Days after the foregoing date as Xxxxxxx Xxxxx Barney
Inc. shall designate, which date and time may be postponed by agreement between
Xxxxxxx Xxxxx Xxxxxx Inc., the Partnership and the Selling Unitholder or as
provided in Section 9 hereof (such date and time of delivery of any payment for
the Firm Units being herein called the "Closing Date". Delivery of the Firm
Units shall be made for the account of each Underwriter against payment by the
several Underwriters of the purchase price thereof to or upon the order of the
Partnership and the Selling Unitholder by wire transfer payable in same-day
funds to accounts specified by the Partnership and the Selling Unitholder.
Delivery of the Firm Units shall be made through the facilities of The
Depository Trust Company ("DTC") unless Xxxxxxx Xxxxx Barney Inc. shall
otherwise instruct. For purposes of this Agreement, "Business Day" shall mean
any day other than a Saturday, a Sunday or a legal holiday or a day on which
banking institutions or trust companies are authorized or obligated by law to
close in New York City.
If the option provided for in Section 2 hereof is executed
after the third Business Day prior to the Closing Date, the Partnership and the
Selling Unitholder will deliver the Option Units (at the expense of the
Partnership) to the Underwriters, at the offices of Xxxxxx & Xxxxxx L.L.P.,
Houston, Texas, on the date specified by Xxxxxxx Xxxxx Barney Inc. (which shall
be within three Business Days after exercise of said option) (the "Option
Closing Date") for the respective accounts of the several Underwriters against
payment by the several Underwriters of the purchase price thereof to or upon the
order of the Partnership and the Selling Unitholder by wire transfer payable in
same-day funds to accounts specified by the Partnership and the Selling
Unitholder. Delivery of the Option Units shall be made through the facilities of
DTC unless Xxxxxxx Xxxxx Xxxxxx Inc. shall otherwise instruct. If the Option
Closing Date for the Option Units occurs after the Closing Date, the Partnership
and the Selling Unitholder will deliver to the Underwriters on the Option
Closing Date for the Option Units, and the obligation of the Underwriters to
purchase the Option Units shall be conditioned upon receipt of, supplemental
opinions, certificates and letters confirming as of such date the opinions,
certificates and letters delivered on the Closing Date pursuant to Section 6
hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Units for sale to the public as set forth in
the Prospectus.
5. Agreements. Each of the NRP Entities, the Selling
Unitholder and Arch Coal, jointly and severally, agrees with the several
Underwriters that:
(a) Preparation of Prospectus and Registration Statement.
Prior to the termination of the offering of the Units, the Partnership and the
General Partner will not file any amendment of the Registration Statement or
supplement to the Prospectus or any Abbreviated Registration Statement and any
amendment thereto unless the Partnership has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing sentence, if
the Registration Statement has become or becomes effective pursuant to Rule 430A
of the Act, or filing of the Prospectus is otherwise required under Rule 424(b)
of the Act, the Partnership and the General Partner will cause the Prospectus,
properly completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) of the Act
-18-
within the time period prescribed and will provide evidence satisfactory to the
Underwriters of such timely filing. The Partnership will promptly advise the
Underwriters (1) when the Registration Statement shall have become effective,
(2) when the Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) of the Act or when any
Abbreviated Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Units, any amendment to
the Registration Statement shall have been filed or become effective, (4) of any
request by the Commission or its staff for any amendment of the Registration
Statement, or any Abbreviated Registration Statement, or for any supplement to
the Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (6) of the receipt by the Partnership of any notification with respect to
the suspension of the qualification of the Units for sale in any jurisdiction or
the institution or threatening of any proceeding for such purpose. The
Partnership will use its best efforts to prevent the issuance of any such stop
order or the suspension of any such qualification and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) Filing of Amendment or Supplement. If, at any time when,
in the opinion of counsel to the Underwriters, a prospectus relating to the
Units is required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act, the Partnership promptly
will (1) notify the Underwriters of any such event, (2) prepare and file with
the Commission, subject to the second sentence of paragraph (a) of this Section
5, an amendment or supplement which will correct such statement or omission or
effect such compliance, and (3) supply any supplemented Prospectus to you in
such quantities as you may reasonably request.
(c) Reports to Unitholders. As soon as practicable, but in any
event not later than 90 days after the close of the period covered thereby, the
Partnership will make generally available to its unitholders and to the
Underwriters an earnings statement or statements of the Partnership Group which
will satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(d) Copies of Reports. The Partnership will furnish to its
unitholders annual reports containing financial statements audited by
independent public accountants and quarterly reports containing financial
statements and financial information which may be unaudited. The Partnership
will, for a period of two years from the Closing Date, furnish or make available
to the Underwriters a copy of each annual report, quarterly report, current
report and all other documents, reports and information furnished by the
Partnership to holders of Units or filed with any securities exchange or market
pursuant to the requirements of such exchange or market or with the Commission
pursuant to the Act or the Exchange Act. Any report, document or other
information required to be furnished under this paragraph (d) shall be furnished
as soon as practicable after such report, document or information becomes
publicly available.
-19-
(e) Signed Copies of the Registration Statement. The
Partnership will furnish to Xxxxxxx Xxxxx Barney Inc. and counsel for the
Underwriters signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of each
Preliminary Prospectus and the Prospectus and any supplement thereto as the
Underwriters may reasonably request.
(f) Qualification of Securities. The Partnership will arrange,
if necessary, for the qualification of the Units for sale under the laws of such
jurisdictions as the Underwriters may designate and will maintain such
qualifications in effect so long as required for the distribution of the Units;
provided that in no event shall the Partnership be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Units, in any jurisdiction where it
is not now so subject. The Partnership will, from time to time, prepare and file
such statements and reports as are or may be reasonably required of it to
continue such qualifications in effect for so long a period as the Underwriters
may reasonably request for the distribution of the Units.
(g) Lock-up Period. The NRP Entities will not, without the
prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc. on behalf of the
Underwriters, offer, sell, contract to sell, pledge, or otherwise dispose of (or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the NRP Entities or
any affiliate of the NRP Entities directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the Commission
in respect of, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act,) any Common Units or any securities convertible into, or
exercisable, or exchangeable for, Common Units; or publicly announce an
intention to effect any such transaction, for a period of 180 days after the
date and time this Agreement is executed by the parties (the "Execution Time"),
provided, however, that the Partnership may grant Restricted Units or options to
purchase Common Units under the Partnership's Long-Term Incentive Plan.
(h) Price Manipulation. The NRP Entities will not take,
directly or indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the Units.
(i) Expenses. The Partnership agrees to pay the costs and
expenses relating to the following matters: (i) the preparation, printing or
reproduction and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), the Preliminary
Prospectus, the Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, the Preliminary Prospectus, the Prospectus, and all
amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Units; (iii)
the preparation, printing, authentication, issuance and delivery of certificates
for the Units, including any stamp or transfer taxes in connection with the
original issuance and sale of the
-20-
Units; (iv) the printing (or reproduction) and delivery of this Agreement, any
blue sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Units; (v) the
registration of the Units under the Exchange Act and the listing of the Units on
the NYSE; (vi) any registration or qualification of the Units for offer and sale
under the securities or blue sky laws of the several states (including filing
fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (vii) any filings required to
be made with the National Association of Securities Dealers, Inc. (including
filing fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (viii) the transportation and other expenses incurred
by or on behalf of Partnership representatives in connection with presentations
to prospective purchasers of the Units; (ix) the fees and expenses of the
Partnership's accountants and the fees and expenses of counsel (including local
and special counsel) for the Partnership; (x) expenses incurred by the
Underwriters in connection with the Directed Unit Program, including counsel
fees and any stamp duties or other taxes incurred by the Underwriters in
connection with the Directed Unit Program; (xi) an advisory fee equal to 0.375%
of the gross proceeds of the Offering (including any exercise of the option set
forth in Section 2 hereof) to Xxxxxx Brothers Inc. ("Xxxxxx Brothers") for
advisory services in connection with the evaluation, analysis and structuring of
the Partnership; and (xii) all other costs and expenses incident to the
performance by the Partnership of its obligations hereunder; provided that
except as provided in this Section 5(i) and in Section 8 hereof, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Units which they may sell
and the expenses of advertising any offering of the Units made by the
Underwriters.
(j) Use of Proceeds. The NRP Entities will use the net
proceeds received by them from the sale of the Units in the manner specified in
the Prospectus under "Use of Proceeds."
(k) Directed Units.
(i) It is understood and agreed that the Common Units to be
sold pursuant to the Directed Unit Program (the "Directed Units") will
be sold pursuant to this Agreement at the offering price to the public
set forth on the cover page of the Prospectus. Any Directed Units which
are not orally confirmed for purchase by Participants by the end of the
business day on which this Agreement is executed will be offered to the
public by the Underwriters as set forth in the Prospectus. Under no
circumstances will Xxxxxx Brothers or any Underwriter be liable to the
NRP Entities or to any Directed Unit Participant for any action taken
or omitted to be taken in good faith in connection with such Directed
Unit Program.
(ii) In connection with the Directed Unit Program, the NRP
Entities will ensure that the Directed Units will be restricted to the
extent required by the National Association of Securities Dealers, Inc.
(the "NASD") or the NASD rules from sale, transfer, assignment, pledge
or hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. Xxxxxx Brothers will
notify the Partnership as to which Participants will need to be so
restricted. The Partnership will direct the removal of such transfer
restrictions upon the expiration of such period of time.
-21-
(iii) The Partnership will pay all fees and disbursements of
counsel incurred by the Underwriters in connection with the Directed
Unit Program (including the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and
packaging) of such copies of the Directed Unit Program materials) and
stamp duties, similar taxes or duties or other taxes, if any, incurred
by the Underwriters in connection with the Directed Unit Program.
(l) Delivery of Tax Form by Selling Unitholder. The Selling
Unitholder agrees to deliver to the Underwriters at the Closing Date a properly
completed and executed United States Treasury Department Form W-9 with respect
to the Units to be sold by it in the Offering.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Firm Units and the Option Units,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the NRP Entities contained herein as of the Execution
Time, the Closing Date and, if applicable, the Option Closing Date, to the
accuracy of the statements of the NRP Entities made in any certificates pursuant
to the provisions hereof, to the performance by the NRP Entities of its
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriters agree in writing to a later
time, the Registration Statement will become effective not later than (i) 6:00
P.M. New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 P.M. New York City
time on such date or (ii) 9:30 A.M. on the Business Day following the day on
which the public offering price was determined, if such determination occurred
after 3:00 P.M. New York City time on such date; if filing of the Prospectus, or
any supplement thereto, is required pursuant to Rule 424(b) of the Act, the
Prospectus, and any such supplement, will be filed in the manner and within the
time period required by Rule 424(b) of the Act; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) All corporate, partnership and limited liability company
proceedings and other legal matters incident to the authorization, form and
validity of this Agreement, the Operative Agreements, the Common Units, the
Subordinated Units, the Incentive Distribution Rights, the Registration
Statement and the Prospectus, and all other legal matters relating to this
Agreement, the transactions contemplated hereby (including the Transactions)
shall be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Partnership shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(c) The Partnership shall have requested and caused Xxxxxx &
Xxxxxx L.L.P., counsel for the Partnership, to have furnished to you their
written opinion, dated the Closing Date and addressed to you, in form and
substance satisfactory to the Underwriters, to the effect that:
-22-
(i) Formation and Qualification of the Partnership and the
General Partner. Each of the Partnership and the General Partner has
been duly formed and is validly existing in good standing as a limited
partnership under the Delaware LP Act with all necessary limited
partnership power and authority to own or lease its properties, assume
the liabilities being assumed by it pursuant to the Contribution
Documents and to conduct its business, and, the case of the General
Partner, to act as the general partner of the Partnership, in each case
in all material respects as described in the Registration Statement and
the Prospectus. Each of the Partnership and the General Partner is duly
registered or qualified as a foreign limited partnership for the
transaction of business under the laws of the jurisdictions set forth
under its name on Annex I attached hereto.
(ii) Formation and Qualification of the Managing General
Partner. The Managing General Partner has been duly formed and is
validly existing in good standing as a limited liability company under
the Delaware LLC Act with all necessary limited liability company power
and authority to own or lease its properties, to assume the liabilities
being assumed by it pursuant to the Contribution Documents, to conduct
its business and to act as a general partner of the Partnership, in all
material respects as described in the Registration Statement and the
Prospectus. The Managing General Partner is duly registered or
qualified as a foreign limited liability company for the transaction of
business under the laws of the jurisdictions set forth under its name
on Annex I attached hereto.
(iii) Formation and Qualification of the Operating Company and
the Operating Subsidiaries. The Operating Company and each Operating
Subsidiary has been duly formed and is validly existing in good
standing as a limited liability company under the Delaware LLC Act with
all necessary limited liability company power and authority to own or
lease its properties, to assume the liabilities being assumed by it
pursuant to the Contribution Documents and to conduct its business, in
each case in all material respects as described in the Registration
Statement and the Prospectus. Each of the Operating Company and each
Operating Subsidiary is duly registered or qualified as a foreign
limited liability company for the transaction of business under the
laws of the jurisdictions set forth under its name on Annex I attached
hereto.
(iv) Ownership of the General Partner Interest in the
Partnership. The General Partner is the sole general partner of the
Partnership with a 2.0% general partner interest in the Partnership;
such general partner interest has been duly authorized and validly
issued in accordance with the Partnership Agreement; and the General
Partner owns such general partner interest free and clear of all liens,
encumbrances, security interests, charges or claims (i) in respect of
which a financing statement under the Uniform Commercial Code of the
State of Delaware naming the General Partner as debtor is on file in
the office of the Secretary of State of the State of Delaware or (ii)
otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LP Act.
(v) Ownership of the Sponsor Units and the Incentive
Distribution Rights. At the Closing Date after giving effect to the
Transactions immediately preceding the Offering, (i) WPP, Great
Northern and New Gauley own 3,458,304, 737,742 and
-23-
138,092 Common Units, respectively, and 5,531,904, 1,180,092 and
220,892 Subordinated Units, respectively, and 19.94%, 4.26% and 0.80%,
respectively, of the Incentive Distribution Rights, respectively, and
(ii) the Selling Unitholder owns 5,072,112 Common Units, 5,072,112
Subordinated Units and 10.00% of the Incentive Distribution Rights; all
of such Sponsor Units, the Incentive Distribution Rights and the
limited partner interests represented thereby have been duly authorized
and validly issued in accordance with the Partnership Agreement, and
are fully paid (to the extent required under the Partnership Agreement)
and nonassessable (except as such nonassessability may be affected by
Section 17-607 of the Delaware LP Act); and each of WPP, Great
Northern, New Gauley and the Selling Unitholder owns its Sponsor Units
and its Incentive Distribution Rights free and clear of all liens,
encumbrances, security interests, charges or claims (i) in respect of
which a financing statement under the Uniform Commercial Code of the
State of Delaware naming such entity as debtor is on file in the office
of the Secretary of State of the State of Delaware or (ii) otherwise
known to such counsel, without independent investigation, other than
those created by or arising under the Delaware LP Act.
(vi) Valid Issuance of the Units. The Units to be issued and
sold to the Underwriters by the Partnership pursuant to this Agreement
and the limited partner interests represented thereby have been duly
authorized by the Partnership Agreement and, when issued and delivered
to the Underwriters against payment therefor in accordance with the
terms of this Agreement, will be validly issued, fully paid (to the
extent required under the Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by Section 17-607 of
the Delaware LP Act); and other than the Sponsor Units and the
Incentive Distribution Rights, the Units will be the only limited
partner interests of the Partnership issued and outstanding at the
Closing Date.
(vii) Ownership of the Operating Company. The Partnership owns
a 100% membership interest in the Operating Company; such membership
interest has been duly authorized and validly issued in accordance with
the Operating Company LLC Agreement and is fully paid (to the extent
required under the Operating Company LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Section 18-607 of
the Delaware LLC Act); and the Partnership owns such membership
interest free and clear of all liens, encumbrances, security interests,
charges or claims (i) in respect of which a financing statement under
the Uniform Commercial Code of the State of Delaware naming the
Partnership as debtor is on file in the office of the Secretary of
State of the State of Delaware or (ii) otherwise known to such counsel,
without independent investigation, other than those created by or
arising under the Delaware LLC Act.
(viii) Ownership of the Operating Subsidiaries. The Operating
Company owns a 100% membership interest in each of the Operating
Subsidiaries; such membership interests have been duly authorized and
validly issued in accordance with the Operating Subsidiaries LLC
Agreements and are fully paid (to the extent required under the
Operating Subsidiaries LLC Agreements) and nonassessable (except as
such nonassessability may be affected by Section 18-607 of the Delaware
LLC Act); and the Operating Company owns such membership interests free
and clear of all liens,
-24-
encumbrances, security interests, charges or claims (i) in respect of
which a financing statement under the Uniform Commercial Code of the
State of Delaware naming the Operating Company as debtor is on file in
the office of the Secretary of State of the State of Delaware or (ii)
otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LLC Act.
(ix) Ownership of the General Partner. The Managing General
Partner is the sole general partner of the General Partner with a
0.001% general partner interest in the General Partner; such general
partner interest has been duly authorized and validly issued in
accordance with the General Partner Partnership Agreement; and the
Managing General Partner owns such general partner interest free and
clear of all liens, encumbrances, security interests, charges or claims
(i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the Managing General
Partner as debtor is on file in the office of the Secretary of State of
the State of Delaware or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or arising under
the Delaware LP Act. At the Closing Date and the Option Closing Date,
after giving effect to the Transactions, WPP, Great Northern, New
Gauley and the Selling Unitholder will own a __%, __%, __% and __%
limited partner interest, respectively, in the General Partner; each
such limited partner interest has been duly authorized and validly
issued in accordance with the General Partner Partnership Agreement and
will be fully paid (to the extent required under the General Partner
Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by Section 17-607 of the Delaware LP
Act); and WPP, Great Northern, New Gauley and the Selling Unitholder
own such limited partner interests free and clear of all liens,
encumbrances, security interests, charges or claims (i) in respect of
which a financing statement under the Uniform Commercial Code of the
State of Delaware naming such entity as debtor is on file in the office
of the Secretary of State of the State of Delaware or (ii) otherwise
known to such counsel, without independent investigation, other than
those created by or arising under the Delaware LP Act.
(x) Ownership of the Managing General Partner. RCM LLC and the
Selling Unitholder own a 57.75% and 42.25% membership interest,
respectively, in the Managing General Partner; such membership
interests have been duly authorized and validly issued in accordance
with the Managing General Partner LLC Agreement and will be fully paid
(to the extent required under the Managing General Partner LLC
Agreement) and nonassessable (except as such nonassessability may be
affected by Section 18-607 of the Delaware LLC Act) and RCM LLC and the
Selling Unitholder own such membership interest free and clear of all
liens, encumbrances, security interests, charges or claims (i) in
respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming RCM LLC or the Selling Unitholder
as debtor is on file with the office of the Secretary of State of the
State of Delaware or (ii) otherwise known to such counsel, without
independent investigation, other than those created or arising under
the Delaware LLC Act.
(xi) No Preemptive Rights, Registration Rights or Options.
Except as described in the Prospectus, there are no preemptive rights
or other rights to subscribe for
-25-
or to purchase, nor any restriction upon the voting or transfer of, (i)
any limited partner interests in the Partnership or the General Partner
or (ii) any membership interests in the Managing General Partner, the
Operating Company or any Operating Subsidiary, in each case pursuant to
the Organizational Documents of such entity. To the knowledge of such
counsel, neither the filing of the Registration Statement nor the
offering or sale of the Units as contemplated by this Agreement gives
rise to any rights for or relating to the registration of any Units or
other securities of the Partnership or any of its subsidiaries, other
than as have been waived. To our knowledge after due inquiry, except as
described in the Prospectus, there are no outstanding options or
warrants to purchase (A) any Common Units or Subordinated Units,
Incentive Distribution Rights or other partnership interests in the
Partnership or (B) any membership interests in the Operating Company or
the Operating Subsidiaries.
(xii) Authority and Authorization. The Partnership has all
requisite power and authority to issue, sell and deliver (i) the Units
to be sold by it, in accordance with and upon the terms and conditions
set forth in this Agreement, the Partnership Agreement and the
Registration Statement and the Prospectus and (ii) the Sponsor Units
and Incentive Distribution Rights, in accordance with and upon the
terms and conditions set forth in the Partnership Agreement and the
Contribution Documents. All corporate, partnership and limited
liability action, as the case may be, required to be taken by the NRP
Entities or any of their stockholders, partners or members for the
authorization, issuance, sale and delivery of the Operative Agreements
and the consummation of the transactions (including the Transactions)
contemplated by this Agreement and the Operative Agreements, has been
validly taken.
(xiii) Due Authorization, Execution and delivery of Agreement.
This Agreement has been duly authorized, executed and delivered by each
of the NRP Entities (other than New Gauley).
(xiv) Enforceability of Other Agreements. Each of the
Operative Agreements to which any of the NRP Entities (other than New
Gauley) is a party has been duly authorized and validly executed and
delivered by such entity, as applicable. Assuming due authorization,
execution and delivery by each party thereto (other than the NRP
Entities (other than New Gauley)) each of the Operative Agreements
governed by Delaware, Texas or New York law constitutes a valid and
legally binding obligation of the NRP Entities (other than New Gauley)
party thereto, enforceable against each such NRP Entity in accordance
with its respective terms, subject to (i) applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law) and (ii) public
policy, applicable law relating to fiduciary duties and indemnification
and an implied covenant of good faith and fair dealing.
(xv) No Conflicts. None of the offering, issuance and sale by
the Partnership and the Selling Unitholder of the Units, the execution,
delivery and performance of this Agreement or the Operative Agreements
by the NRP Entities party thereto or the consummation of the
transactions contemplated hereby and thereby
-26-
(including the Transactions) (i) constituted, constitutes or will
constitute a violation of the Organizational Documents of the
Partnership Group, (ii) constituted, constitutes or will constitute a
breach or violation of, or a default under (or an event which, with
notice or lapse of time or both, would constitute such a default) any
Operative Agreement (other than the Arch Leases, as to which such
counsel has not been asked to comment), any other agreement filed as an
exhibit to the Registration Statement or any credit agreement, note
agreement, indenture, promissory note or other agreement evidencing or
governing indebtedness of an NRP Entity ( each, a "Covered Document"),
(iii) violated, violates or will violate the Delaware LP Act, the
Delaware LLC Act, the DGCL, federal law or the laws of the State of
Texas or (iv) resulted, results or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of any member of the Partnership Group, which breaches,
violations, defaults or liens, in the case of clauses (ii), (iii) or
(iv), would, individually or in the aggregate, have a material adverse
effect on the condition (financial or other), business or results of
operations of the Partnership Group taken as a whole.
(xvi) No Consents. No permit, consent, approval,
authorization, order, registration, filing or qualification ("consent")
of or with any federal, Texas or Delaware court, governmental agency or
body is required for the (i) offering, issuance and sale by the
Partnership and the offering and sale by the Selling Unitholder of the
Units, (ii) the execution, delivery and performance of this Agreement
and the Operative Agreements by the NRP Entities party thereto or (iii)
the consummation by the NRP Entities of the transactions contemplated
by this Agreement or the Operative Agreements (including the
Transactions), except (i) for such consents required under the Act, the
Exchange Act and state securities or "Blue Sky" laws, as to which such
counsel need not express any opinion, (ii) for such consents which have
been obtained or made, (iii) for such consents which, if not obtained
or made, would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or other), business or
results of operations of the Partnership Group, taken as a whole, or
(iv) as disclosed in the Prospectus.
(xvii) Accuracy of Statements. The statements in the
Registration Statement and Prospectus under the captions "Cash
Distribution Policy," "Business--Environmental Regulation," "Certain
Relationships and Related Transactions," "Conflicts of Interest and
Fiduciary Responsibilities," "Description of the Common Units,"
"Description of the Subordinated Units," and "The Partnership
Agreement," insofar as they constitute descriptions of agreements or
partnership interests or refer to statements of law or legal
conclusions, are accurate and complete in all material respects.
(xviii) Tax Opinion. The opinion of Xxxxxx & Xxxxxx L.L.P.
that is filed as Exhibit 8.1 to the Registration Statement is confirmed
and the Underwriters may rely upon such opinion as if it were addressed
to them.
(xix) Effectiveness of Registration Statement. The
Registration Statement was declared effective under the Act on
__________, 2002; to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened by
-27-
the Commission; and any required filing of the Prospectus pursuant to
Rule 424(b) has been made in the manner and within the time period
required by such Rule.
(xx) Compliance as to Form. The Registration Statement and the
Prospectus (except for the financial statements and the notes and the
schedules thereto, and the other financial, statistical and accounting
data included in the Registration Statement or the Prospectus, as to
which such counsel need not express any opinion) comply as to form in
all material respects with the requirements of the Act and the Rules
and Regulations promulgated thereunder.
(xxi) Legal Proceedings or Contracts to be Described or Filed.
To the knowledge of such counsel, (i) there are no legal or
governmental proceedings pending or threatened against any of the NRP
Entities or to which any of the NRP Entities is a party or to which any
of their respective properties is subject that are required to be
described in the Prospectus but are not so described as required and
(ii) there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required by
the Act.
(xxii) Investment Company/Public Utility Holding Company. None
of the NRP Entities is an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended, or (ii) a "public
utility company" or "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(xxiii) Title to Units. Assuming that the Underwriters do not
have notice of any adverse claim (as defined in Sections 8-102 and
8-105 of the New York Uniform Commercial Code) to the Units to be sold
by the Selling Unitholder, upon the delivery to the Underwriters of
certificates evidencing such Units registered in the name of the
Underwriters (or their nominee) and payment by the Underwriters of the
purchase price for such Units, the Underwriters (or such nominee) will
be "protected purchasers" (as such term is used in Section 8-303 of the
New York Uniform Commercial Code).
(xxiv) Private Placement. The offer, sale and issuance of the
Sponsor Units and the Incentive Distribution Rights to the WPP Group
and the Selling Unitholder pursuant to the Partnership Agreement are
exempt from the registration requirements of the Act and the securities
laws of any state having jurisdiction with respect thereto.
In addition, such counsel shall state that they have
participated in conferences with officers and other representatives of
the NRP Entities and the independent public accountants of the
Partnership and your representatives, at which the contents of the
Registration Statement and the Prospectus and related matters were
discussed, and although such counsel has not independently verified, is
not passing on, and is not assuming any responsibility for the
accuracy, completeness or fairness of the statements contained in, the
Registration Statement and the Prospectus (except to the extent
specified in the foregoing opinion), no facts have come to such
counsel's attention that lead such counsel to believe that the
Registration Statement (other than (i) the
-28-
financial statements included therein, including the notes and
schedules thereto and the auditors' reports thereon, and (ii) the other
financial and statistical information included therein, as to which
such counsel need not comment), as of its effective date contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus (other than (i) the
financial statements included therein, including the notes and
schedules thereto and the auditors' reports thereon, and (ii) the other
financial and statistical information included therein, as to which
such counsel need not comment), as of its issue date and the Closing
Date contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may (A) rely in
respect of matters of fact upon certificates of officers and employees
of the NRP Entities and upon information obtained from public
officials, (B) assume that all documents submitted to them as originals
are authentic, that all copies submitted to them conform to the
originals thereof, and that the signatures on all documents examined by
them are genuine, (C) state that their opinion is limited to federal
laws, the Delaware LP Act, the Delaware LLC Act, the DGCL, Texas law
and the contract law of the State of New York, (D) with respect to the
opinions expressed in paragraphs (i), (ii) and (iii) above as to the
due qualification or registration as a foreign limited partnership,
corporation or limited liability company, as the case may be, of the
Partnership, the Operating Company, the Operating Subsidiaries, the
General Partner and the Managing General Partner, state that such
opinions are based upon the opinions of ___________ provided pursuant
to Section 6(e) below and upon certificates of foreign qualification or
registration provided by the Secretary of State of the States of the
States listed on Annex I to such opinion (each of which shall be dated
as of a date not more than fourteen days prior to the Closing Date and
shall be provided to you), (E) state that they express no opinion with
respect to the title of any of the NRP Entities to any of their
respective real or personal property purported to be transferred by the
Contribution Documents nor with respect to the accuracy or descriptions
of real or personal property, and (F) state that they express no
opinion with respect to state or local taxes or tax statutes to which
any of the limited partners of the NRP Entities may be subject.
(d) The Partnership shall have requested and caused Xxxxxx X.
Xxxxx, Vice President-Law and General Counsel for Arch Coal, to have furnished
to you his written opinion, dated the Closing Date and addressed to you, to the
effect that:
(i) Formation of Arch Coal and the Selling Unitholder. Each of
Arch Coal and the Selling Unitholder has been duly incorporated and is
validly existing in good standing as a corporation under the DGCL with
all necessary corporate power and authority to own or lease its
properties and to conduct its business.
(ii) Ownership of the Selling Unitholder. Arch Coal owns 100%
of the issued and outstanding capital stock of the Selling Unitholder;
such capital stock has been duly authorized and validly issued and is
fully paid and nonassessable; and Arch Coal owns such capital stock
free and clear of all liens, encumbrances, security interests,
-29-
charges or claims (i) in respect of which a financing statement under
the Uniform Commercial Code of the State of Delaware naming Arch Coal
as debtor is on file in the office of the Secretary of State of the
State of Delaware or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or arising under
the DGCL.
(iii) No Preemptive Rights, Registration Rights or Options.
Except as described in the Prospectus, there are no preemptive rights
or other rights to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, (i) any limited partner interests in
the Partnership or the General Partner or (ii) any membership interests
in the Managing General Partner, the Operating Company or any Operating
Subsidiary, in each case pursuant to any agreement or instrument known
to such counsel (other than the Organizational Documents of the
Partnership Group) to which any member of the Partnership Group is a
party or by which any of them may be bound. To the knowledge of such
counsel, neither the filing of the Registration Statement nor the
offering or sale of the Units as contemplated by this Agreement gives
rise to any rights for or relating to the registration of any Units or
other securities of the Partnership or any of its subsidiaries, other
than as have been waived.
(iv) Enforceability of Arch Leases. Each of the Arch Leases
has been duly authorized and validly executed and delivered by Ark LLC
and the Selling Unitholder, as applicable. Assuming due authorization,
execution and delivery by each party thereto, each of the Arch Leases
constitutes a valid and legally binding obligation of Ark LLC and the
Selling Unitholder, enforceable against each of these in accordance
with its respective terms, subject to (i) applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law) and (ii) public
policy, applicable law relating to fiduciary duties and indemnification
and an implied covenant of good faith and fair dealing. (v) No
Conflicts. None of the offering, issuance and sale by the Partnership
and the offering and sale by the Selling Unitholder of the Units, the
execution, delivery and performance of this Agreement or the Operative
Agreements by the NRP Entities or the consummation by the NRP Entities
of the transactions contemplated hereby and thereby (including the
Transactions) (i) constituted, constitutes or will constitute a
violation of the Organizational Documents of Arch Coal or the Selling
Unitholder; (ii) constituted, constitutes or will constitute a breach
or violation of, or a default under (or an event which, with notice or
lapse of time or both, would constitute such a default), any agreement,
lease or other instrument known to such counsel to which Arch Coal or
the Selling Unitholder is a party or by which any of its properties may
be bound (other than a Covered Document), or (iii) violated, violates
or will violate any order, judgment, decree or injunction of any court
or government agency or body directed to Arch Coal or the Selling
Unitholder or any of their properties in a proceeding to which any of
them or their property is a party, or (iv) resulted or will result in
the creation or imposition of any lien, charge or encumbrance upon any
assets of Arch Coal or the Selling Unitholder, which breaches,
violations, or defaults, in the case of clauses (ii), (iii)
-30-
or (iv), would, individually or in the aggregate, have a material
adverse effect on the condition (financial or other), business or
results of operations of the Partnership Group, taken as a whole, or
could materially impair the ability of Arch Coal or the Selling
Unitholder to perform its obligations under this Agreement and the
Operative Agreements.
(vi) No Default. To the knowledge of such counsel after due
inquiry, neither Arch Coal nor the Selling Unitholder is in (i)
violation of its certificate or agreement of limited partnership,
limited liability company agreement, certificate or articles of
incorporation or bylaws or other organizational documents, or of any
law, statute, ordinance, administrative or governmental rule or
regulation applicable to it or of any decree of any court or
governmental agency or body having jurisdiction over it or (ii) breach,
default (or an event which, with notice or lapse of time or both, would
constitute such a default) or violation in the performance of any
obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which it is a party or by which
it or any of its properties may be bound, which breach, default or
violation would, if continued, have a material adverse effect on the
condition (financial or other), business or results of operations of
the Partnership Group, taken as a whole, or could materially impair the
ability of Arch Coal or the Selling Unitholder to perform its
obligations under this Agreement or the Operative Agreements.
(vii) Permits. To the knowledge of such counsel after due
inquiry, each of Arch Coal and the Selling Unitholder has such permits,
consents, licenses, franchises, certificates and authorizations of
governmental or regulatory authorities ("permits") as are necessary to
own its properties and to conduct its business in the manner described
in the Prospectus, subject to such qualifications as may be set forth
in the Prospectus and except for such permits which, if not obtained,
would not, individually or in the aggregate, have a material adverse
effect upon the ability of the Partnership and its subsidiaries, taken
as a whole, to conduct their businesses in all material respects as
currently conducted or as contemplated by the Prospectus to be
conducted; and, to the knowledge of such counsel after due inquiry,
neither Arch Coal nor the Selling Unitholder has received any notice of
proceedings relating to the revocation or modification of any such
permits which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected
to have a material adverse effect upon the ability of the Partnership
Group, taken as a whole, to conduct their businesses in all material
respects as currently conducted or as contemplated by the Prospectus to
be conducted.
(viii) Litigation. Except as described in the Prospectus, to
the knowledge of such counsel after due inquiry, there is no
litigation, proceeding or governmental investigation pending or
threatened against any of the NRP Entities or to which any of the NRP
Entities is a party or to which any of their respective properties is
subject, which, if adversely determined to such NRP Entities, is
reasonably likely to have a material adverse effect on the condition
(financial or other), business or results of operations of the
Partnership and its subsidiaries, taken as a whole.
-31-
In addition, such counsel shall state that he has participated
in conferences with officers and other representatives of the NRP
Entities and the independent public accountants of the Partnership and
its representatives, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed, and
although such counsel has not independently verified, is not passing
on, and is not assuming any responsibility for the accuracy,
completeness or fairness of the statements contained in, the
Registration Statement and the Prospectus (except to the extent
specified in the foregoing opinion), no facts have come to such
counsel's attention that lead such counsel to believe that the
Registration Statement (other than (i) the financial statements
included therein, including the notes and schedules thereto and the
auditors' reports thereon, and (ii) the other financial and statistical
information included therein as to which such counsel need not
comment), as of its effective date contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
that the Prospectus (other than (i) the financial statements included
therein, including the notes and schedules thereto and the auditors'
reports thereon, and (ii) the other financial and statistical
information included therein, as to which such counsel need not
comment), as of its issue date and the Closing Date contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may (A) rely in
respect of matters of fact upon the representations of the Selling
Unitholder, Arch Coal and the other NRP Entities set forth in this
Agreement and in certificates of officers and employees of the Selling
Unitholder, Arch Coal and the other NRP Entities and upon information
obtained from public officials, (B) assume that all documents submitted
to such counsel as originals are authentic, that all copies submitted
to such counsel conform to the originals thereof, and that the
signatures on all documents examined by him are genuine, (C) state that
such opinions are limited to federal laws and the laws of the State of
Delaware.
(e) The Partnership shall have requested and caused Xxxx
Xxxxxxxx, as counsel to the WPP Group, to have furnished to you his written
opinion, dated the Closing Date and addressed to you, to the effect that:
(i) Existence and Good Standing of the WPP Group and RCM LLC.
Each of WPP and Great Northern has been duly formed and is validly
existing in good standing as a limited partnership under the Delaware
LP Act with all necessary partnership power and authority to own or
lease its properties and to conduct its business. RCM LLC has been duly
formed and is validly existing in good standing as a limited liability
company under the Delaware LLC Act with all necessary limited liability
power and authority to own or lease its properties and to conduct its
business.
(ii) Due Authorization, Execution and Delivery of Agreement.
This Agreement has been duly authorized, executed and delivered by each
of RCM LLC, WPP and Great Northern.
-32-
(iii) No Conflicts. None of the offering, issuance and sale by
the Partnership and the offering and sale by the Selling Unitholder of
the Units, the execution, delivery and performance of this Agreement or
the Operative Agreements by the NRP Entities or the consummation by the
NRP Entities of the transactions contemplated hereby and thereby
(including the Transactions) (i) constituted, constitutes or will
constitute a violation of the Organizational Documents of RCM LLC, WPP,
Great Northern or New Gauley; (ii) constituted, constitutes or will
constitute a breach or violation of, or a default under (or an event
which, with notice or lapse of time or both, would constitute such a
default), any agreement, lease or other instrument known to such
counsel to which RCM LLC, WPP, Great Northern or New Gauley is a party
or by which any of its properties may be bound (other than a Covered
Document), (iii) violated, violates or will violate any order,
judgment, decree or injunction of any court or government agency or
body directed to RCM LLC, WPP, Great Northern or New Gauley or any of
their properties in a proceeding to which any of them or their property
is a party, or (iv) resulted, results or will result in the creation or
imposition of any lien, charge or encumbrance upon any assets RCM LLC,
WPP, Great Northern or New Gauley, which breaches, violations, defaults
or liens in the case of clauses (ii), (iii) or (iv), would,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business or results of operations of
the Partnership Group, taken as a whole, or could materially impair the
ability of RCM LLC, WPP, Great Northern or New Gauley to perform its
obligations under this Agreement and the Operative Agreements.
(iv) No Preemptive Rights, Registration Rights or Options.
Except as described in the Prospectus, there are no preemptive rights
or other rights to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, (i) any limited partner interests of
the Partnership or the General Partner or (ii) any membership interests
of the Managing General Partner, the Operating Company or any Operating
Subsidiary, in each case pursuant to any agreement or instrument known
to such counsel (other than the Organizational Documents of the
Partnership Group) to which the Partnership Group is a party or by
which any of them may be bound. To the knowledge of such counsel,
neither the filing of the Registration Statement nor the offering or
sale of the Units as contemplated by this Agreement gives rise to any
rights for or relating to the registration of any Units or other
securities of the Partnership or any of its subsidiaries, other than as
have been waived.
(v) No Default. To the knowledge of such counsel after due
inquiry, none of RCM LLC, WPP, Great Northern or New Gauley is in (i)
violation of its certificate or agreement of limited partnership,
limited liability company agreement, certificate or articles of
incorporation or bylaws or other organizational documents, or of any
law, statute, ordinance, administrative or governmental rule or
regulation applicable to it or of any decree of any court or
governmental agency or body having jurisdiction over it or (ii) breach,
default (or an event which, with notice or lapse of time or both, would
constitute such a default) or violation in the performance of any
obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which it is a party or by which
it or any of its properties may be bound, which breach, default or
-33-
violation would, if continued, have a material adverse effect on the
condition (financial or other), business or results of operations of
the Partnership, taken as a whole, or could materially impair the
ability of any of RCM LLC, WPP, Great Northern or New Gauley to perform
its obligations under this Agreement or the Operative Agreements.
(vi) Permits. To the knowledge of such counsel after due
inquiry, each of RCM LLC, WPP, Great Northern or New Gauley has such
permits, consents, licenses, franchises, certificates and
authorizations of governmental or regulatory authorities ("permits") as
are necessary to own its properties and to conduct its business in the
manner described in the Prospectus, subject to such qualifications as
may be set forth in the Prospectus and except for such permits which,
if not obtained, would not, individually or in the aggregate, have a
material adverse effect upon the ability of the Partnership and its
subsidiaries, taken as a whole, to conduct their businesses in all
material respects as currently conducted or as contemplated by the
Prospectus to be conducted; and, to the knowledge of such counsel after
due inquiry, none of RCM LLC, WPP, Great Northern or New Gauley has
received any notice of proceedings relating to the revocation or
modification of any such permits which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to have a material adverse effect
upon the ability of the Partnership and its subsidiaries, taken as a
whole, to conduct their businesses in all material respects as
currently conducted or as contemplated by the Prospectus to be
conducted.
(vii) Litigation. Except as described in the Prospectus, to
the knowledge of such counsel after due inquiry, there is no
litigation, proceeding or governmental investigation pending or
threatened against any of the NRP Entities or to which any of the NRP
Entities is a party or to which any of their respective properties is
subject, which, if adversely determined to such NRP Entities, is
reasonably likely to have a material adverse effect on the condition
(financial or other), business or results of operations of the
Partnership and its subsidiaries, taken as a whole.
In rendering such opinion, such counsel may (A) rely in
respect of matters of fact upon the representations of RCM LLC, WPP, Great
Northern or New Gauley and the other NRP Entities set forth in this Agreement
and in certificates of officers and employees of RCM LLC, WPP, Great Northern or
New Gauley and the other NRP Entities and upon information obtained from public
officials, (B) assume that all documents submitted to such counsel as originals
are authentic, that all copies submitted to such counsel conform to the
originals thereof, and that the signatures on all documents examined by him are
genuine, (C) state that such opinions are limited to federal laws and the laws
of the State of Delaware.
(f) Each of ________________ with respect to the State of West
Virginia, _______________ with respect to the State of Kentucky, _____________
with respect to the State of Virginia, _______________ with respect to the State
of Alabama, ___________ with respect to the State of Illinois, _____________
with respect to the State of Indiana and _______________ with respect to the
State of Montana shall have furnished to you their written opinion, dated the
Closing Date and addressed to you, to the effect that:
-34-
(i) Due Qualification. The Partnership has been duly qualified
or registered as a foreign limited partnership for the transaction of
business under the laws of [insert applicable state]. Each of the
Managing General Partner, the Operating Company and the Operating
Subsidiaries has been duly qualified or registered as a foreign limited
liability company for the transaction of business under the laws of
[insert applicable state]. The General Partner has been duly qualified
or registered as a foreign limited partnership for the transaction of
business under the laws of [insert applicable state].
(ii) Limited Liability. Each member of the Partnership Group
[as applicable] has all requisite corporate, limited liability company
or limited partnership power and authority under the laws of the State
of [insert applicable state] to own or lease its properties and to
conduct its business in the State of [insert applicable state], in each
case in all material respects as described or otherwise disclosed in
the Prospectus; and upon the consummation of the Transactions, the
Partnership will not be liable under the laws of the State of [insert
applicable state] for the liabilities of the Operating Company and the
Operating Subsidiaries and the holders of Units will not be liable
under the laws of the State of [insert applicable state] for the
liabilities of the Partnership Group except in each case to the same
extent as such liability would exist under the laws of the State of
Delaware.
(iii) No Consents. No permit, consent, approval,
authorization, order, registration, filing or qualification ("consent")
of or with any court, governmental agency or body of the State of
[insert applicable state] having jurisdiction over the NRP Entities or
any of their respective properties is required for the (i) offering,
issuance and sale of by the Partnership, and the offering and sale by
the Selling Unitholder, of the Units; and (ii) the execution, delivery
and performance by the NRP Entities of this Agreement and the Operative
Agreements to which they are a party; except (A) for such consents
required under the Act, the Exchange Act and state securities or "Blue
Sky" laws, as to which such counsel need not express any opinion, (B)
for such consents which have been obtained or made, (C) for such
consents which, if not obtained or made, would not, individually or in
the aggregate, have a material adverse effect upon the operations
conducted or to be conducted as described in the Prospectus in the
State of [insert applicable state] by the NRP Entities, including such
consents which (i) are of a routine or administrative nature, (ii) are
not customarily obtained or made prior to the consummation of
transactions such as those contemplated by the Operative Agreements and
(iii) are expected in the reasonable judgment of the Managing General
Partner to be obtained or made in the ordinary course of business
subsequent to the consummation of the Transactions, or (D) as disclosed
in the Prospectus.
(iv) No Conflicts. The execution, delivery and performance of
the Contribution Agreement and the Contribution Documents relating to
the transfer of property in the State of [insert applicable state] has
not violated and will not violate any statute of the State of [insert
applicable state] or any rule, regulation or, to the knowledge of such
counsel, any order of any agency of the State of [insert applicable
state] having jurisdiction over any of the NRP Entities or any of their
respective properties, except for any such violations which,
individually or in the aggregate, would not have a material
-35-
adverse effect on the unitholders or the operations conducted in the
State of [insert applicable state] by the Partnership Group, taken as a
whole.
(v) Sufficiency to Transfer. Each of the Contribution
Agreement and the Contribution Documents is in a form legally
sufficient as between the parties thereto to convey to the transferee
thereunder all of the right, title and interest of the transferor
stated therein in and to the properties located in the State of [insert
applicable state], as described in the Contribution Agreement and the
Contribution Documents, subject to the conditions, reservations and
limitations contained in the Contribution Agreement and the
Contribution Documents, except motor vehicles or other property
requiring conveyance of certificated title as to which the Contribution
Agreement and the Contribution Documents are legally sufficient to
compel delivery of such certificated title.
(vi) Form of Transfer Documents. Each of the Contribution
Documents is in a form legally sufficient for recordation in the
appropriate public offices of the State of [insert applicable state],
to the extent such recordation is required in order to place third
parties on constructive notice of the conveyance, and, upon proper
recordation of any of such deeds and real property assignments in the
State of [insert applicable state], will constitute notice to all third
parties under the recordation statutes of the State of [insert
applicable state] concerning record title to the assets transferred
thereby; recordation in the office of the County Clerk for each county
in which the Partnership Group owns property is the appropriate public
office in the State of [insert applicable state] for the recordation of
deeds and assignments of interests in real property located in such
county.
(vii) Permits. To the knowledge of such counsel after due
inquiry, each of the NRP Entities has such permits, consents, licenses,
franchises, certificates and authorizations of governmental or
regulatory authorities ("permits") of the State of [insert applicable
state] as are necessary to own its properties and to conduct its
business in the state of [insert applicable state] in the manner
described in the Prospectus, subject to such qualifications as may be
set forth in the Prospectus and except for such permits which, if not
obtained, would not reasonably be expected to have, individually or in
the aggregate, a material adverse effect on the condition (financial or
other), business or results of operations of the Partnership Group,
taken as a whole, or could materially impair the ability of the NRP
Entities to perform their obligations under this Agreement and the
Operative Agreements and, to the knowledge of such counsel after due
inquiry, none of the NRP Entities has received any notice of
proceedings relating to the revocation or modification of any such
permits which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected
to have a material adverse effect on the condition (financial or
other), business or results of operations of the Partnership Group,
taken as a whole, or could materially impair the ability of the NRP
Entities to perform their obligations under this Agreement and the
Operative Agreements.
(viii) [For West Virginia counsel only--Formation of New
Gauley. New Gauley has been duly incorporated and is validly existing
in good standing as a
-36-
corporation under the West Virginia Code with all necessary corporate
power and authority to own or lease its properties and to conduct its
business.]
(ix) [For West Virginia counsel only--Due Authorization,
Execution and Delivery Agreement. This Agreement has been duly
authorized executed and delivered by New Gauley.]
In rendering such opinion, such counsel may (A) rely in
respect of matters of fact upon certificates of officers and employees
of the NRP Entities and upon information obtained from public
officials, (B) assume that all documents submitted to them as originals
are authentic, and all copies submitted to them conform to the
originals thereof, and that the signatures on all documents examined by
them are genuine, (C) state that such opinions are limited to the laws
of the State of [insert applicable state], excepting therefrom
municipal and local ordinances and regulations, (D) state that they
express no opinion with respect to state or local taxes or tax statutes
to which any of the limited partners of the Partnership or any of the
NRP Entities may be subject, and (E) with respect to the opinion in
paragraph (i) rely upon certificates of foreign qualification provided
by the Secretary of State of [insert applicable state] (each of which
shall be dated as of the date not more than fourteen days prior to the
Closing Date and provided to you).
In rendering such opinion, such counsel shall state that (A)
Xxxxxx & Xxxxxx L.L.P., Xxxx Xxxxxxxx and Xxxxxx X. Xxxxx are hereby
authorized to rely upon such opinion letter in connection with the
Transactions as if such opinion letter were addressed and delivered to
them on the date hereof and (B) subject to the foregoing, such opinion
letter may be relied upon only by the Underwriters and its counsel in
connection with the Transactions and no other use or distribution of
this opinion letter may be made without such counsel's prior written
consent.
(g) The Underwriters shall have received from Xxxxx Xxxxx
L.L.P., counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Underwriters, with respect to the issuance and
sale of the Units, the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Underwriters may reasonably
require, and the Partnership shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon such matters.
(h) The Partnership shall have furnished to the Underwriters
(i) a certificate signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the General Partner, (ii) a
certificate signed by two executive officers of Arch Coal, and (iii) a
certificate signed by two executive officers of the WPP Group, in each case
dated the Closing Date and addressed to the Underwriters, to the effect that the
signers of such certificates have carefully examined the Registration Statement,
the Prospectus, any supplements to the Prospectus and this Agreement and, with
respect to the entities covered by the certificate, that:
(i) the representations and warranties of such entities in
this Agreement are true and correct on and as of the Closing Date with
the same effect as if
-37-
made on the Closing Date and such entities have complied with all the
agreements and satisfied all the conditions on their part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to such entities' knowledge,
threatened;
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto), there
has been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the NRP
Entities, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated
in the Prospectus (exclusive of any supplement thereto); and
(iv) such other matters as you may reasonably request.
(i) The Partnership shall have requested and caused Ernst &
Young LLP to have furnished to the Underwriters, at the Execution Time and at
the Closing Date, letters, dated respectively as of the Execution Time and as of
the Closing Date, in form and substance heretofore approved by you.
(j) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (i) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business or properties of the Partnership
Group taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto) the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the sole judgment of the Underwriters, so
material and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Units as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto).
(k) Prior to the Closing Date, the NRP Entities shall have
furnished to the Underwriters such further information, certificates and
documents as the Underwriters may reasonably request.
(l) The Units shall have been listed and admitted and
authorized for trading on the NYSE, and satisfactory evidence of such actions
shall have been provided to the Underwriters.
(m) At the Execution Time, the Partnership shall have
furnished to the Underwriters a letter substantially in the form of Exhibit A
hereto from the executive officers and directors of the Managing General Partner
addressed to the Underwriters.
-38-
(n) At the time of execution of this Agreement, the
Underwriters shall have received letters addressed to them dated on or prior to
the date hereof from each of Stagg Resource Consultants, Inc. and Xxxx
International Mining Consultants, in the forms heretofore approved by the
Underwriters.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date and, if
applicable, the Option Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Partnership in writing or by telephone or
facsimile confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Units provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the NRP Entities to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the NRP Entities will reimburse the
Underwriters severally through Xxxxxxx Xxxxx Barney Inc. on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Units.
8. Indemnification and Contribution.
(a) The NRP Entities jointly and severally, agree to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the Units
as originally filed or in any amendment thereof, or in any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the NRP Entities will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the NRP Entities by or on
behalf of any Underwriter specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the NRP Entities may
otherwise have.
-39-
In connection with the offer and sale of the Directed Units,
the NRP Entities, jointly and severally, agree, promptly upon a request in
writing, to indemnify and hold harmless Xxxxxx Brothers and the other
Underwriters from and against any loss, claim, damage, expense, liability or
action which (i) arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the approval of the NRP Entities for distribution to Directed Unit
Participants in connection with the Directed Unit Program or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) arises out of
the failure of any Directed Unit Participant to pay for and accept delivery of
Directed Units that the Directed Unit Participant agreed to purchase or (iii) is
otherwise related to the Directed Unit Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that have resulted
directly from the materials prepared by Xxxxxx Brothers in connection with the
Directed Unit Program or the bad faith or gross negligence or willful misconduct
of Xxxxxx Brothers or the other Underwriters.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the NRP Entities, each of their respective
directors, each of its officers who signs the Registration Statement, and each
person who controls the NRP Entities within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the NRP
Entities to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the NRP Entities by or on behalf of
such Underwriter specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The NRP Entities acknowledge
that the statements set forth in the last paragraph of the cover page regarding
delivery of the Units and, under the heading "Underwriting" (i) the list of
Underwriters and their respective participation in the sale of the Units, (ii)
the sentences related to concessions and reallowances, (iii) the paragraph
related to release of lockup agreements, (iv) the paragraph related to
stabilization, syndicate covering transactions and penalty bids and (v) the
paragraph related to delivery of the prospectus in electronic format in any
Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the
-40-
indemnified party in an action, the indemnified party shall have the right to
employ separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. Notwithstanding anything
contained herein to the contrary, if indemnity may be sought pursuant to Section
8(b) hereof in respect of such action or proceeding, then in addition to such
separate firm for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate firm
(in addition to any local counsel) for Xxxxxxx Xxxxx Barney Inc. and Xxxxxx
Brothers, their respective directors, officers, employees and agents, and all
persons, if any, who control Xxxxxxx Xxxxx Barney Inc. and Xxxxxx Brothers
within the meaning of either the Act or the Exchange Act for the defense of any
losses, claims, damages and liabilities arising out of the Directed Unit
Program.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the NRP Entities, severally and jointly, and
the Underwriters severally, agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
which one or more of the NRP Entities and one or more of the Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the NRP Entities on the one hand and by the Underwriters on the
other from the offering of the Units; provided, however, that in no case shall
any Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Units) be responsible for any amount in excess
of the underwriting discount or commission applicable to the Units purchased by
such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the NRP Entities and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the NRP
Entities on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the NRP Entities shall
be deemed to be equal to the total net proceeds from the Offering (before
deducting expenses) received by the Partnership and the Selling Unitholder, and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the
-41-
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the NRP Entities on the one hand or the Underwriters on the other,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The NRP
Entities and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
any of the NRP Entities within the meaning of either the Act or the Exchange
Act, each officer of the NRP Entities who shall have signed the Registration
Statement and each director of the NRP Entities shall have the same rights to
contribution as the NRP Entities, subject in each case to the applicable terms
and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Units agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Firm Units set
forth opposite their names in Schedule 1 hereto bears to the aggregate amount of
Firm Units set forth opposite the names of all the remaining Underwriters) the
Firm Units which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Units which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Units set forth in Schedule
1 hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Units, and if such
nondefaulting Underwriters do not purchase all the Units, this Agreement will
terminate without liability to any nondefaulting Underwriter or the NRP
Entities. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the nondefaulting Underwriters shall determine in order
that the required changes in the Registration Statement and the Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the NRP Entities and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters, by notice given to
the Partnership and the Selling Unitholder prior to delivery of and payment for
the Units, if at any time prior to such time (i) trading in the Partnership's
Common Units shall have been suspended by the Commission or the NYSE or trading
in securities generally on the NYSE shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have
-42-
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Underwriters, impractical or inadvisable to proceed with the offering or
delivery of the Units as contemplated by the Prospectus (exclusive of any
supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
NRP Entities or their respective officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
NRP Entities or any of their respective officers, directors, employees, agents
or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Units. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telefaxed to the Xxxxxxx Xxxxx Barney Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Xxxxxx
Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General
Counsel; if sent to Xxxxxx Brothers, will be mailed, delivered or telefaxed to
Xxxxxx Brothers, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
Syndicate Registration Department (fax no.: (000) 000-0000) with a copy to the
Office of the General Partner at the same address; if sent to the Partnership,
will be mailed, delivered or telefaxed to ____________, Natural Resource
Partners L.P., 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (fax no.:
(713) ____________); or, if sent to the Selling Unitholder or Arch Coal, will be
mailed, delivered or telefaxed to _____________, Arch Coal, Inc., XxxxXxxxx Xxx,
Xxxxx 000, Xx. Xxxxx, Xxxxxxxx (fax no. (314) ________________).
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
-43-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the NRP Entities and the several Underwriters.
Very truly yours,
ARK LAND COMPANY ARCH COAL, INC.
By: By:
-------------------------------------------------- --------------------------------------------------
Name: Name:
------------------------------------------- -------------------------------------------
Title: Title:
------------------------------------------ ------------------------------------------
GP NATURAL RESOURCES LLC NATURAL RESOURCE PARTNERS L.P.
By: NRP (GP) LP, its general partner
By: By:
-------------------------------------------------- --------------------------------------------------
Name: Name:
------------------------------------------- -------------------------------------------
Title: Title:
------------------------------------------ ------------------------------------------
NRP (OPERATING) LLC NRG (GP) LP
By: GP Natural Resource Partners LLC, its general
partner
By: By:
-------------------------------------------------- --------------------------------------------------
Name: Name:
------------------------------------------- -------------------------------------------
Title: Title:
------------------------------------------ ------------------------------------------
WESTERN POCAHONTAS PROPERTIES LLC NEW GAULEY COAL LLC
By: By:
-------------------------------------------------- --------------------------------------------------
Name: Name:
------------------------------------------- -------------------------------------------
Title: Title:
------------------------------------------ ------------------------------------------
ARK LAND LLC GREAT NORTHERN PROPERTIES LLC
By: By:
-------------------------------------------------- --------------------------------------------------
Name: Name:
------------------------------------------- -------------------------------------------
Title: Title:
------------------------------------------ ------------------------------------------
WESTERN POCAHONTAS PROPERTIES LIMITED PARTNERSHIP NEW GAULEY COAL CORPORATION
By: By:
-------------------------------------------------- --------------------------------------------------
Name: Name:
------------------------------------------- -------------------------------------------
Title: Title:
------------------------------------------ ------------------------------------------
XXXXXXXXX COAL MANAGEMENT LLC GREAT NORTHERN PROPERTIES LIMITED PARTNERSHIP
By: By:
-------------------------------------------------- --------------------------------------------------
Name: Name:
------------------------------------------- -------------------------------------------
Title: Title:
------------------------------------------ ------------------------------------------
Accepted:
Xxxxxxx Xxxxx Barney Inc.
Xxxxxx Brothers Inc.
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxxx Xxxxxxxx Xxxxxx
RBC Xxxx Xxxxxxxx Inc.
By: XXXXXXX XXXXX BARNEY INC.
By:
-------------------------------------------
SCHEDULE 1
NATURAL RESOURCE PARTNERS L.P.
Number of Firm
Underwriters Units to be Purchased
------------ ---------------------
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxx Brothers Inc.
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxxx Xxxxxxxx Xxxxxx
RBC Xxxx Xxxxxxxx Inc.
TOTAL: ---------
4,500,000
EXHIBIT A
___________________, 2002
Xxxxxxx Xxxxx Barney Inc.
Xxxxxx Brothers Inc.
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxxx Xxxxxxxx Xxxxxx
RBC Xxxx Xxxxxxxx Inc.
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed
Underwriting Agreement (the "
Underwriting Agreement"), among Arch Coal,
Inc., a Delaware corporation, Ark Land Company, a Delaware corporation, NRP (GP)
LP, a Delaware limited partnership, Natural Resources Partners L.P., a Delaware
limited partnership (the "Partnership"), GP Natural Resource Partners LLC, a
Delaware limited liability company, NRP (Operating) LLC, a Delaware limited
liability company, Western Pocahontas Properties LLC, a Delaware limited
liability company, Great Northern Properties LLC, a Delaware limited liability
company, New Gauley LLC, a Delaware limited liability company, Ark Land LLC, a
Delaware limited liability company, Western Pocahontas Properties Limited
Partnership, a Delaware limited partnership, Great Northern Properties Limited
Partnership, a Delaware limited partnership, New Gauley Coal Corporation, a West
Virginia corporation, Xxxxxxxxx Coal Management LLC, a Delaware limited
liability company, and each of you as Underwriters named therein, relating to an
underwritten public offering Common Units representing limited partner interests
in the Partnership (the "Common Units").
In order to induce the Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Xxxxxxx Xxxxx Barney Inc., offer, sell, contract to sell, pledge or
otherwise dispose of (or enter into any transaction which is designated to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
Common Units of the Partnership or any securities convertible into, or
exercisable or exchangeable for such Common Units, or publicly announce an
intention to effect any such transaction, for a period of 180 days after the
date of this Agreement.
If for any reason the
Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the
Underwriting Agreement),
the agreement set forth above shall likewise be terminated
Very truly yours,
---------------------------------------
---------------------------------------
---------------------------------------
