NATURAL RESOURCE PARTNERS L.P. 6,000,000 Common Units Representing Limited Partner Interests UNDERWRITING AGREEMENT
Exhibit 1.1
NATURAL RESOURCE PARTNERS L.P.
6,000,000 Common Units
Representing Limited Partner Interests
Representing Limited Partner Interests
March 16, 2011
Xxxxxx Xxxxxxx & Co. Incorporated
As Representative of the several underwriters
named in Schedule 1 attached hereto
As Representative of the several underwriters
named in Schedule 1 attached hereto
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Adena Minerals, LLC, a Delaware limited liability company (the “Selling Unitholder”)
and a unitholder of Natural Resource Partners L.P., a Delaware limited partnership (the
“Partnership”), proposes to sell to the several underwriters named in Schedule 1
attached hereto (the “Underwriters”), for whom Xxxxxx Xxxxxxx & Co. Incorporated is acting
as the representative (the “Representative”), 6,000,000 common units (the “Firm
Units”) representing limited partner interests in the Partnership (the “Common Units”).
The Selling Unitholder also proposes to grant to the Underwriters an option to purchase up to an
additional 900,000 Common Units to cover over-allotments (the “Option Units”). The Firm
Units and the Option Units, if purchased, are hereinafter collectively called the “Units.”
This agreement (this “Agreement”) is to confirm the agreement among GP Natural
Resource Partners LLC, a Delaware limited liability company (the “Managing General
Partner”), NRP (GP) LP, a Delaware limited partnership (the “General Partner”) and the
Partnership (each, an “NRP Party,” and collectively, the “NRP Parties”), the
Underwriters and the Selling Unitholder concerning the purchase of the Firm Units and the Option
Units from the Selling Unitholder by the Underwriters.
1. Representations, Warranties and Agreements of the NRP Parties. Each of the NRP
Parties, jointly and severally, represents and warrants to and agrees that:
(a) Registration; Definitions. An “automatic shelf registration statement” as defined in
Rule 405 of the Rules and Regulations (as defined below) on Form S-3 (File No. 333-157595), as
amended by Post-Effective Amendment No. 1 thereto, relating to the Units (i) has been prepared by
the Partnership in conformity with the requirements of the Securities Act of 1933, as amended (the
“Securities Act”), and the rules and regulations (the “Rules and Regulations”) of
the Securities
and Exchange Commission (the “Commission”) thereunder and (ii) has been filed with the
Commission under the Securities Act; and such Post-Effective Amendment No. 1 became effective upon
filing thereof under the Securities Act on March 19, 2010. As used in this Agreement:
(vi) “Applicable Time” means 7:00 a.m. (New York City time) on March 17,
2011.
(vii) “Base Prospectus” means the base prospectus included in the
Registration Statement in the form it has most recently been amended on or prior to the date
hereof.
(viii) “Effective Date” means any date as of which any part of the
Registration Statement relating to the Units became, or is deemed to have become, effective
under the Securities Act in accordance with the Rules and Regulations;
(ix) “Issuer Free Writing Prospectus” means each “free writing prospectus”
(as defined in Rule 405 of the Rules and Regulations) prepared by or on behalf of the
Partnership or used or referred to by the Partnership in connection with the offering of the
Units;
(x) “Preliminary Prospectus” means any preliminary prospectus relating to
the Units included in such registration statement or filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations, including the Base Prospectus and any preliminary
prospectus supplement thereto relating to the Units;
(xi) “Pricing Disclosure Package” means (i) the Base Prospectus, (ii) the
most recent Preliminary Prospectus as amended or supplemented as of the Applicable Time, and
(iii) the pricing information and each Issuer Free Writing Prospectus, if any, identified in
Schedule 3 hereto;
(xii) “Prospectus” means the final prospectus relating to the Units,
including the Base Prospectus and any prospectus supplement thereto, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(xiii) “Registration Statement” means, collectively, the various parts of
the registration statement referred to in this Section 1(a), each as amended as of
the Effective Date for such part, including any Preliminary Prospectus or the Prospectus and
all exhibits to such registration statement.
Any reference to any Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus shall
be deemed to refer to and include any documents incorporated by reference therein pursuant to Form
S-3 under the Securities Act as of the date of such Preliminary Prospectus or the Prospectus, as
the case may be, or in the case of the Pricing Disclosure Package, as of the Applicable Time. Any
reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest
Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) on
or prior to the date hereof. Any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”),
after the date of such Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be deemed to include the most recent
annual report of the Partnership on Form 10-K or Form 10-K/A filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the original Effective
-2-
Date that is incorporated
by reference in the Registration Statement. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or suspending the effectiveness
of the Registration Statement, and no proceeding or examination for such purpose has been
instituted or, to the Partnership’s knowledge, threatened by the Commission. The Commission has not
notified the Partnership of any objection to the use of the form of the Registration Statement.
(b) Well Known Seasoned Issuer; Partnership Not an Ineligible Issuer. (i) At the time of
filing the Registration Statement, (ii) at the time of the most recent amendment thereto for
purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the
Exchange Act or form of prospectus), if any, (iii) at the time the Partnership or any person acting
on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to
the Units in reliance on the exemption in Rule 163 and (iv) as of the date hereof, the Partnership
was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405 of the Rules
and Regulations. The Partnership was not at the time of the initial filing of the Registration
Statement and at the earliest time thereafter that the Partnership or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the
Units, is not on the date hereof and will not be on the Closing Date or any Option Closing Date, an
“ineligible issuer” (as defined in Rule 405 of the Rules and Regulations).
(c) Form of Documents. The Registration Statement conformed and will conform in all
material respects on each Effective Date and on the Closing Date (as defined in Section 4)
and any Option Closing Date (as defined in Section 4), and any amendment to the
Registration Statement filed after the date hereof will conform in all material respects when
filed, to the requirements of the Securities Act and the Rules and Regulations. The most recent
Preliminary Prospectus conformed, and the Prospectus will conform, in all material respects when
filed with the Commission pursuant to Rule 424(b) to the requirements of the Securities Act and the
Rules and Regulations. The documents incorporated by reference in any Preliminary Prospectus or the
Prospectus conformed, and any further documents so incorporated will conform, when filed with the
Commission, in all material respects to the requirements of the Exchange Act or the Securities Act,
as applicable, and the Rules and Regulations.
(d) No Material Misstatements or Omissions in Registration Statement. The Registration
Statement did not, as of each Effective Date, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the Registration Statement in
reliance upon and in conformity with written information furnished to the Partnership by or on
behalf of any Underwriter specifically for inclusion therein, which information is specified in
Section 10(f).
(e) No Material Misstatements or Omissions in Prospectus. The Prospectus will not, as of
its date and on the Closing Date and any Option Closing Date, contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in or omitted from the
-3-
Prospectus in
reliance upon and in conformity with written information furnished to the Partnership through the
Representative by or on behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 10(f).
(f) No Material Misstatements or Omissions in Documents Incorporated By Reference. The
documents incorporated by reference in any Preliminary Prospectus or the Prospectus did not, and
any further documents filed and incorporated by reference therein will not, when filed with the
Commission, contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(g) No Material Misstatements or Omissions in Pricing Disclosure Package. The Pricing
Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the Pricing Disclosure Package in
reliance upon and in conformity with written information furnished to the Partnership through the
Representative by or on behalf of any Underwriters specifically for inclusion therein, which
information is specified in Section 10(f).
(h) No Material Misstatements or Omissions in Issuer Free Writing Prospectuses. Each
Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing
prospectus under Rule 433), when considered together with the Pricing Disclosure Package as of the
Applicable Time, did not contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that no representation or warranty is made as to information
contained in or omitted from any Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Partnership through the Representative by or on behalf of
any Underwriters specifically for inclusion therein, which information is specified in Section
10(f).
(i) Issuer Free Writing Prospectuses Conform to the Requirements of the Securities Act.
Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations on the date of first use, and the
Partnership has complied with any filing requirements applicable to such Issuer Free Writing
Prospectus pursuant to the Rules and Regulations. The Partnership has not made any offer relating
to the Units that would constitute an Issuer Free Writing Prospectus without the prior written
consent of the Representative. The Partnership has retained in accordance with the Rules and
Regulations all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the
Rules and Regulations. Each Issuer Free Writing Prospectus does not and will not include any
information that conflicts with the information contained in the Registration Statement or the
Pricing Disclosure Package, including any document incorporated therein and any prospectus
supplement deemed to be a part thereof that has not been superseded or modified. The foregoing
sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based
upon and in conformity with written information furnished to the Partnership by the Underwriters
through the Representative specifically for inclusion therein, which information consists solely of
the information specified in Section 10(f).
-4-
(j) Formation and Qualification of Members of the Partnership Group. Each of the Managing
General Partner, the General Partner, the Partnership, NRP (Operating) LLC, a Delaware limited
liability company (the “Operating Company”) and their respective subsidiaries listed on
Schedule 2 hereto (collectively, the “Partnership Group,” and the subsidiaries
listed on Schedule 2 hereto, the “Operating Subsidiaries”) has been duly formed and
is validly existing in good standing under the laws of its jurisdiction of formation with all
limited liability company or partnership power and authority necessary to own or hold its
properties and to conduct the businesses in which it is engaged, and, in the case of the Managing
General Partner, to act as the general partner of the General Partner, 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 Pricing Disclosure Package and the Prospectus. Each member of the
Partnership Group is duly registered or qualified as a foreign limited liability company or limited
partnership, as the case may be, for the transaction of business under the laws of each
jurisdiction listed opposite its name on Schedule 2 hereto, such jurisdictions being the
only jurisdictions in which the ownership or lease of property or the character of the business
conducted by it makes such qualification or registration 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.
(k) 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 of the Partnership, as amended or restated to date (the
“Partnership Agreement”); and the General Partner owns such general
partner interest free and clear of all liens, encumbrances, security interests, equities,
charges or claims (“Liens”).
(l) Capitalization. As of the date hereof, the issued and outstanding limited partner
interests of the Partnership consist of 106,027,836 Common Units. All outstanding Common Units
(including the Units) 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
non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised
Uniform Limited Partnership Act (the “Delaware LP Act”) and as otherwise described in the
Base Prospectus under the caption “Description of Our Units — Limited Liability”).
(m) Valid Issuance of the Units. The Firm Units and the Option Units, 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 Sections 17-303,
17-607 and 17-804 of the Delaware LP Act and as otherwise described in the Base Prospectus under
the caption “Description of Our Units — Limited Liability”).
(n) Ownership of the Managing General Partner. Xxxxxxxxx Coal Management LLC, a Delaware
limited liability company (“RCM LLC”), owns 100% of the issued and outstanding membership
interests in the Managing General Partner; such membership interests have been duly authorized and
validly issued in accordance with the limited liability
-5-
company agreement of the Managing General
Partner, as amended to date (the “Managing General Partner LLC Agreement”), and are fully
paid (to the extent required under the Managing General Partner LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware
Limited Liability Company Act (the “Delaware LLC Act”)); and RCM LLC owns such membership
interests free and clear of all Liens.
(o) 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
partnership agreement of the General Partner, as amended or restated to date (the “General
Partner Partnership Agreement”); and the Managing General Partner owns such general partner
interest free and clear of all Liens. Adena Minerals, LLC (“Adena Minerals”), Western
Pocahontas Properties Limited Partnership (“WPP”), Great Northern Properties Limited
Partnership (“Great Northern”), New Gauley Coal Corporation (“New Gauley Coal”) and
NRP Investment L.P. (“NRP Investment”) own a 31.0000000%, 31.7947399%, 6.7826002%,
1.2695890% and 29.1520709% 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
is fully paid (to the extent required under the General Partner Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and
17-804 of the Delaware LP Act); and Adena Minerals, WPP, Great Northern, New Gauley Coal and NRP
Investment each own such limited partner interests free and clear of all Liens.
(p) Ownership of the Operating Company. The Partnership owns 100% of the issued and
outstanding membership interests in the Operating Company; such membership interests have been duly
authorized and validly issued in accordance with the limited liability company agreement of the
Operating Company, as amended or restated to date (the “Operating Company LLC Agreement”)
and are fully paid (to the extent required under the Operating Company LLC Agreement) and
nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the
Delaware LLC Act); and the Partnership owns such membership interests free and clear of all Liens
other than those arising in connection with the Amended and Restated Credit Agreement, dated as of
March 28, 2007, by and among the Operating Company, as borrower, Citibank, N.A., as Administrative
Agent, and the lenders and other agents party thereto, as amended by the First Amendment to Amended
and Restated Credit Agreement, dated as of May 11, 2010, by and among the Operating Company, as
borrower, Citibank, N.A., as Administrative Agent, and the lenders and other agents party thereto
(as so amended, the “Credit Facility”).
(q) Ownership of BRP LLC. The Operating Company owns 51% of the issued and outstanding
membership interests in BRP LLC, a Delaware limited liability company (“BRP”), such
membership interests have been duly authorized and validly issued in accordance with the limited
liability company agreement of BRP, as amended or restated to date (the “BRP LLC
Agreement”) and are fully paid (to the extent required under the BRP LLC Agreement) and
nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the
Delaware LLC Act); and the Operating Company owns such membership interests free and clear of all
Liens other than those arising in connection with the Credit Facility. BRP owns
-6-
100% of the
issued and outstanding membership interests in XxXxx Leasing Company, LLC, (“XxXxx”), a
Delaware limited liability company, such membership interests have been duly authorized and validly
issued in accordance with the limited liability company agreement of XxXxx, as amended or restated
to date (the “XxXxx LLC Agreement”) and are fully paid (to the extent required under the XxXxx LLC
Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607
and 18-804 of the Delaware LLC Act; and BRP owns such membership interests free and clear of all
Liens other than those arising in connection with the Credit Facility.
(r) Ownership of the Operating Subsidiaries. Except as expressly set forth in this
Agreement, the Operating Company owns, directly or indirectly, 100% of the issued and outstanding
membership interests in each of the Operating Subsidiaries; such membership interests have been
duly authorized and validly issued in accordance with the limited liability company agreements of
the Operating Subsidiaries, each as amended or restated to date (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 Sections 18-607 and 18-804 of the Delaware
LLC Act); and the Operating Company owns such membership interests free and clear of all Liens
other than those arising in connection with the Credit Facility.
(s) No Other Subsidiaries. Other than the Partnership’s ownership of a 100% membership
interest in the Operating Company, the Operating Company’s ownership of a 51% membership interest
in BRP and the Operating Company’s ownership of a direct or indirect 100% membership interest in
each of the Operating Subsidiaries, neither the Partnership nor the Operating Company owns,
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 does not own, directly or
indirectly, any equity or long-term debt securities of any corporation, partnership, limited
liability company, joint venture, association or other entity.
(t) No Preemptive Rights, Registration Rights or Options. Except as described in the
Pricing Disclosure Package and the Prospectus, (i) there are no preemptive rights or other rights
to subscribe for or to purchase any partnership or membership 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, and (ii) there are no restrictions upon the voting or transfer of any partnership
interests in the Partnership contained in the Partnership Agreement, or any other agreement or
instrument to which the Partnership is a party or by which the Partnership 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 other than as provided in the Partnership Agreement, which rights
have been waived, with respect to this offering. There are no outstanding options or warrants to
purchase any partnership or membership interests of any member of the Partnership Group.
-7-
(u) Authority and Authorization. Each of the NRP Parties has all requisite power and
authority to execute and deliver this Agreement and to perform its respective obligations
hereunder. All partnership and limited liability company action, as the case may be, required to
be taken by each of the NRP Parties or any of their respective partners or members, as applicable
(in their capacity as such and not, in the case of Adena Minerals, LLC, in its capacity as the
Selling Unitholder), for the execution and delivery by each such NRP Party of this Agreement and
the consummation of the transactions contemplated by this Agreement have been validly taken.
(v) Enforceability of Underwriting Agreement. This Agreement has been duly authorized,
validly executed and delivered by each of the NRP Parties and constitutes the valid and legally
binding agreement of each of the
NRP Parties, 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.
(w) Conformity of Securities to Description in Final Prospectus. The Units conform in all
material respects to the descriptions thereof contained or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(x) Enforceability of Other Agreements. Each of the Partnership Agreement, the General
Partner Partnership Agreement, the Managing General Partner LLC Agreement, the Operating Company
LLC Agreement, the BRP LLC Agreement and the Operating Subsidiaries LLC Agreements has been duly
authorized, validly executed and delivered and is a valid and legally binding agreement,
enforceable in accordance with its terms; provided that, with respect to each such agreement, 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.
(y) No Conflicts. None of the offering or sale by the Selling Unitholder of the Units,
the execution, delivery and performance of this Agreement by the NRP Parties or the consummation
by the NRP Parties of the transactions contemplated hereby (i) conflicts or will conflict with or
constitutes or will constitute a violation of their respective Organizational Documents, (ii)
conflicts or will conflict with or constitutes or will constitute a breach or violation of, or a
default under (or an event that, with notice or lapse of time or both, would constitute such a
default), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which any member of the Partnership Group 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 member of the Partnership Group or any of their properties in a proceeding to which
any of them or their property is a party, or (iv) results or will
-8-
result in the creation or
imposition of any Lien upon any property or assets of any member of the Partnership Group, 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 would
materially impair the ability of any of the NRP Parties to perform their obligations under this
Agreement.
(z) 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 any
member of the Partnership Group or any of their respective properties is required in connection
with the offering and sale by the Selling Unitholder of the Units in the manner contemplated by
this Agreement and in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, the execution, delivery and performance of this Agreement by the NRP Parties, or the
consummation by any member of the NRP Parties of the transactions contemplated by this Agreement,
except for such consents (i) required under the Securities Act and state securities or “Blue Sky”
laws or (ii) that, if not obtained, would not, individually or in the aggregate, have a Material
Adverse Effect.
(aa) No Default. No member of the Partnership Group 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 would materially impair the
ability of any of the NRP Parties to perform their obligations under this Agreement. To the
knowledge of the NRP Parties, no third party to any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which any member of the Partnership Group 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.
(bb) Independent Public Accountants. The accountants, Ernst & Young LLP, who have
certified or shall certify the audited financial statements contained or incorporated by reference
in the Registration Statement, the Pricing Disclosure Package and the Prospectus (or any amendment
or supplement thereto), are independent public accountants with respect to the Partnership and the
General Partner within the meaning of the Securities Act and the Rules and Regulations thereunder
adopted by the Commission and the Public Company Accounting Oversight Board (United States) (the
“PCAOB”).
(cc) Financial Statements. The consolidated historical financial statements (including
the related notes and supporting schedules) of the Partnership contained or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus (i)
comply as to form
in all material respects with the applicable requirements of the Securities Act and the
Exchange Act, (ii) present fairly in all material respects the financial
-9-
position, results of
operations and
cash flows of the Partnership and (iii) have been prepared in accordance with accounting
principles generally accepted in the United States of America consistently applied throughout the
periods involved, except to the extent disclosed therein.
(dd) No Material Adverse Change. No member of the Partnership Group has sustained, since
the date of the latest audited financial statements included in the Registration Statement, the
Pricing Disclosure Package 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, the Pricing Disclosure Package and the
Prospectus. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, subsequent to the respective dates as of which such information is given in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, there has not been any
material adverse change, or any development involving, individually 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 Partnership Group, taken as a
whole.
(ee) No Distribution of Other Offering Materials. No member of the Partnership Group 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 Securities
Act) in connection with the offering and sale of the Units other than the Registration Statement,
any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which the
Representative has consented in accordance with Sections 1(a)(vi), or 6(a)(x) hereof or
other materials, if any, permitted by the Securities Act, including Rule 134 of the Rules and
Regulations.
(ff) Title to Properties. The Operating Company and the Operating Subsidiaries have good
and indefeasible title to all real property and good title to all personal property described in
the Pricing Disclosure Package and the Prospectus, free and clear of all Liens except (1) as
described, and subject to the limitations contained, in the Registration Statement, the Pricing
Disclosure Package and the Prospectus or (2) such as do not materially interfere with the use of
such properties taken as a whole as they are currently used and are proposed to be used in the
future as described in the Pricing Disclosure Package and the 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 Pricing Disclosure Package and the Prospectus.
(gg) Rights-of-Way. Each member of the Partnership Group has 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 Pricing
Disclosure Package and the Prospectus, except for (i) qualifications, reservations and encumbrances
as may be set forth in the Pricing Disclosure Package and the Prospectus which are not reasonably
expected to have a material adverse effect upon the ability
-10-
of the Partnership Group, taken as a
whole, to conduct its businesses in all material respects as currently conducted and as
contemplated by the Pricing Disclosure Package and 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 its
businesses in all material respects as currently conducted and as contemplated by the Pricing
Disclosure Package and the Prospectus to be conducted; other than as set forth, and subject to the
limitations contained, in the Pricing Disclosure Package and the Prospectus, each member of the
Partnership Group has fulfilled and performed all of 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 its businesses in all material respects as currently conducted and as contemplated by the
Pricing Disclosure Package and the Prospectus to be conducted; and, except as described in the
Pricing Disclosure Package and the Prospectus, none of such rights-of-way contains any restriction
that is materially burdensome to the Partnership Group, taken as a whole.
(hh) Permits. Each member of the Partnership Group has 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 Pricing Disclosure Package and the Prospectus, subject to such
qualifications as may be set forth in the Pricing Disclosure Package and the Prospectus and except
for such permits that, if not obtained, would not have, individually or in the aggregate, a
Material Adverse Effect; each member of the Partnership Group has fulfilled and performed all its
material obligations with respect to such permits in the manner described, and subject to the
limitations contained, in the Pricing Disclosure Package and 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.
(ii) 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 and has maintained effective internal control over financial reporting as
defined in
Rules 13a-15(f) and 15d-15(f) under the Exchange Act and a system 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.
(jj) Disclosure Controls. (i) Each of the NRP Parties has established and maintains
disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and
-11-
15d-15(e) under
the Exchange Act), (ii) such disclosure controls and procedures are designed to ensure that the
information required to be disclosed by the Partnership in the reports its files or submits under
the Exchange Act is accumulated and communicated to the management of the Partnership Group,
including their respective principal executive officers and principal financial officers, as
appropriate, to allow timely decisions regarding required disclosure to be made and (iii) such
disclosure controls and procedures are effective in all material respects to perform the functions
for which they were established.
(kk) No Recent Changes to Internal Controls. Since the date of the most recent audited
balance sheet of the Partnership reviewed or audited by Ernst and Young LLP and the audit committee
of the board of directors of the General Partner, (i) none of the NRP Parties has been advised of
(A) any significant deficiencies in the design or operation of internal controls that are
reasonably likely to adversely affect the ability of the Partnership Group to record, process,
summarize and report financial data, or any material weaknesses in internal controls and (B) any
fraud, whether or not material, that involves management or other employees who have a significant
role in the internal controls of the Partnership Group, and (ii) since that date, there have been
no changes in internal controls that have materially affected, or are likely to materially affect,
internal controls, including any corrective actions with regard to significant deficiencies and
material weaknesses.
(ll) Tax Returns. Each member of the Partnership Group 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 of this Agreement, which returns are complete and
correct in all material respects, and has timely paid all taxes shown to be due, if any, 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.
(mm) Investment Company . No member of the Partnership Group is, and after sale of the
Units to be sold by the Selling Unitholder hereunder will be, an “investment company” or a company
“controlled
by” an “investment company” within the meaning of the Investment Company Act of 1940, as
amended.
(nn) Environmental Compliance. Except as described in the Pricing Disclosure Package and
the Prospectus, the entities comprising 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
-12-
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.
(oo) No Labor Dispute. No dispute with the employees of any member of the Partnership
Group exists or, to the knowledge of the NRP Parties, is threatened or imminent and the NRP Parties
are not aware of any existing or imminent labor disturbance by the employees of any of the lessees
of the Partnership Group that would be reasonably likely to have a Material Adverse Effect.
(pp) 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. No member 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 any Option Closing Date. Each member of
the Partnership Group is in compliance with the terms of such policies and instruments in all
material respects; and there are no material claims by any member of the Partnership Group under
any such policy or instrument as to which any insurance company is denying liability or defending
under a reservation of rights clause.
(qq) Litigation. Except as described in the Pricing Disclosure Package and 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 Parties,
threatened, to which any member of the Partnership Group is or may be a party or to which the
business or property of any member of the Partnership Group 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 formally 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 member of the Partnership Group 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 sale of the Units, or (C) in any manner draw into question the validity of this Agreement.
(rr) Market Stabilization. The Partnership has not taken, 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.
(ss) Related Party Transactions. No relationship, direct or indirect, exists between or
among the Partnership Group on the one hand, and the directors, officers, partners, customers or
suppliers of the Managing General Partner or the General Partner and their
-13-
respective affiliates
(other than the Partnership Group) on the other hand, which is required to be described in the
Pricing Disclosure Package and the Prospectus which is not so described.
(tt) No Omitted Descriptions. There are no legal or governmental proceedings pending or,
to the knowledge of the NRP Parties, threatened or contemplated, against any member of the
Partnership Group, or to which any member of the Partnership Group is a party, or to which any of
their respective properties or assets is subject, that are required to be described in the Pricing
Disclosure Package or the Prospectus that are not described as required, and there are no
agreements, contracts, indentures, leases or other instruments that are required to be described in
the Pricing Disclosure Package or the Prospectus or to be filed as an exhibit to the Registration
Statement that are not described or filed as required by the Securities Act.
(uu) Reserve Information. All information related to the coal reserves of the Partnership
Group (including, without limitation, information related to (x) proven, probable and total
recoverable coal reserves in the aggregate and by region and mining complex location, (y)
underground and surface coal reserves, and (z) sulfur quality (including with respect to compliance
coal), typical quality and type of coal) included in the Registration Statement as of each
Effective Date, the Pricing Disclosure Package as of the Applicable Time and the Prospectus as of
its date and the Closing
Date and any Option Closing Date (the “Coal Reserve Information”), was and is accurate
in all material respects. The Coal Reserve Information has been calculated in accordance with
standard mining engineering procedures used in the coal industry and applicable government
reporting requirements and applicable law. All assumptions used in the calculation of the Coal
Reserve Information were and are reasonable.
(vv) NYSE Listing. The Units are listed, and have been admitted and authorized for
trading, on the New York Stock Exchange.
(ww) Anti-Corruption Laws. No member of the Partnership Group, no director, officer or
employee of any member of the Partnership Group and, to the knowledge of the NRP Parties, no agent
or representative of any member of the Partnership Group or any of their affiliates, has taken or
will take any action in furtherance of an offer, payment, promise to pay, or authorization or
approval of the payment or giving of money, property, gifts or anything else of value, directly or
indirectly, to any “government official” (including any officer or employee of a government or
government-owned or controlled entity or of a public international organization, or any person
acting in an official capacity for or on behalf of any of the foregoing, or any political party or
party official or candidate for political office) to influence official action or secure an
improper advantage; and each member of the Partnership Group and their affiliates have conducted
their businesses in compliance with applicable anti-corruption laws and have instituted and
maintain and will continue to maintain policies and procedures designed to promote and achieve
compliance with such laws and with the representation and warranty contained herein.
(xx) Money Laundering Laws. The operations of the NRP Parties and their subsidiaries are
and have been conducted at all times in material compliance with all applicable financial
recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by
Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the
-14-
applicable anti-money
laundering statutes of jurisdictions where the NRP Parties and their subsidiaries conduct business,
the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively, the “Anti-Money
Laundering Laws”), and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the NRP Parties or any of their subsidiaries
with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the NRP Parties,
threatened.
(yy) OFAC. None of the NRP Parties nor any of their subsidiaries, nor any director,
officer, or employee thereof, nor, to the knowledge of the NRP Parties, any agent, affiliate or
representative of the NRP Parties or any of their subsidiaries, is an individual or entity
(“Person”) that is, or is owned or controlled by a Person that is (i) the subject of any
sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets
Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union
(“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority
(collectively, “Sanctions”), nor (ii) located, organized or resident in a country or
territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba,
Iran, Libya, North Korea, Sudan and Syria).
(i) For the past five years, they and their subsidiaries have not knowingly engaged in,
are not now knowingly engaged in, and will not engage in, any dealings or
transactions with any Person, or in any country or territory, that at the time of the dealing
or transaction is or was the subject of Sanctions.
Any certificate signed by any officer of any NRP Party and delivered to the Representative or
to counsel for the Underwriters pursuant to Section 8 of this Agreement shall be deemed a
representation and warranty by such NRP Party, as to matters covered thereby, to each Underwriter.
2. Representations, Warranties and Agreements of the Selling Unitholder. The
Selling Unitholder represents, warrants and agrees that:
(a) Free Writing Prospectus. Neither the Selling Unitholder nor any person acting on
behalf of the Selling Unitholder (other than, if applicable, the Partnership and the Underwriters)
has used or referred to any “free writing prospectus” (as defined in Rule 405) relating to the
Units.
(b) Title to Units. The Selling Unitholder has, and immediately prior to the Closing Date
and any Option Closing Date on which the Selling Unitholder is selling Units, the Selling
Unitholder will have, good and valid title to the Units to be sold by the Selling Unitholder
hereunder on such Closing Date and any Option Closing Date, free and clear of all Liens, except for
Liens as will be released in connection with the transactions contemplated hereby.
(c) Underwriters’ Interest in the Units. The Units to be sold by the Selling Unitholder
hereunder are subject to the interest of the Underwriters and the obligations of the
-15-
Selling
Unitholder hereunder, which shall not be terminated by any act of the Selling Unitholder, by
operation of law or the occurrence of any other events.
(d) Formation. The Selling Unitholder has been duly formed and is validly existing and in
good standing as a limited liability company under the laws of the State of Delaware and has the
full limited liability company power and authority necessary to own or lease its properties and
assets and to conduct the businesses in which it is engaged.
(e) Power and Authority. On the Closing Date and any Option Closing Date, the Selling
Unitholder will have all requisite power and authority to sell and deliver the Units, in accordance
with and upon the terms and conditions set forth in this Agreement, the Partnership Agreement, the
Pricing Disclosure Package and the Prospectus. On the Closing Date and any Option Closing Date,
all action required to be taken by the Selling Unitholder or any of its members for the sale and
delivery of the Units, the execution and delivery by the Selling Unitholder of this Agreement and
the consummation of the transactions contemplated hereby shall have been validly taken.
(f) Authorization of this Agreement. This Agreement has been duly and validly authorized,
executed and delivered by or on behalf of the Selling Unitholder.
(g) No Conflicts. None of the offering and sale of the Units by the Selling Unitholder,
the execution, delivery and performance of this Agreement by the Selling Unitholder, or the
consummation of the transactions contemplated hereby (i) conflicts or will
conflict with, or constitutes or will constitute a violation of, the provisions of the
certificate of formation or limited liability company agreement of the Selling Unitholder, (ii)
conflicts or will conflict with, or constitutes or will constitute a breach or violation of or a
default under (or an event that, with notice or lapse of time or both, would constitute such a
breach or violation of or default under), any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which the Selling Unitholder is a party, by which the
Selling Unitholder is bound or to which any of its properties or assets is subject, (iii) violates
or will violate any statute, law, ordinance, regulation, order, judgment, decree or injunction of
any court or governmental agency or body to which the Selling Unitholder or any of its properties
or assets is or may be subject or (iv) results or will result in the creation or imposition of any
Lien upon any property or assets of the Selling Unitholder, except for such conflicts, breaches,
violations, defaults or Liens, in the case of clauses (ii), (iii) or (iv), as would not,
individually or in the aggregate, have a material adverse effect on the Selling Unitholder or
materially impair the ability of the Selling Unitholder to perform its obligations under this
Agreement.
(h) No Consents. Except for the registration of the Units under the Securities Act and
such consents, approvals, authorizations, registrations or qualifications as may be required under
the Exchange Act and applicable state securities laws in connection with the purchase and sale of
the Units by the Underwriters or as may otherwise be obtained prior to the applicable Closing Date,
no permit, consent, approval, authorization, order, registration, filing or qualification of or
with any court, governmental agency or body having jurisdiction over the Selling Unitholder or any
of its properties or assets is required in connection with the execution, delivery and performance
of this Agreement by the Selling Unitholder, or the consummation of the transactions contemplated
hereby.
-16-
(i) Basis of Sale of Common Units. The Selling Unitholder is not prompted to sell the
Units by any material information concerning any of the NRP Parties that is not set forth in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(j) Market Stabilization. None of the Selling Unitholder or, to the knowledge of the
Selling Unitholder, any of its affiliates has taken, nor will the Selling Unitholder or, to the
knowledge of the Selling Unitholder, any of its affiliates take, directly or indirectly, any action
that has constituted, that was designed to cause or result in, or that could reasonably be expected
to cause or result in, the stabilization or manipulation of the price of any security of any NRP
Party to facilitate the sale or resale of the Units.
Any certificate signed by or on behalf of the Selling Unitholder and delivered to the
Representative or counsel for the Underwriters in connection with the offering of the Units shall
be deemed a representation and warranty by the Selling Unitholder, as to matters covered thereby,
to each Underwriter.
3. Purchase and Sale of the Units.
(a) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Selling Unitholder agrees to sell 6,000,000
Firm Units to the several Underwriters, and each Underwriter agrees, severally and not
jointly, to purchase from the Selling Unitholder, at a purchase price of $34.67 per Unit, the
number of Firm Units set forth opposite that Underwriter’s name in Schedule 1 hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Selling Unitholder grants to the Underwriters an option to
purchase, severally and not jointly, up to 900,000 Option Units at the same purchase price per unit
as the Underwriters shall pay for the Firm Units. 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 notice by the Representative to the Selling Unitholder setting forth the
number of Option Units as to which the several Underwriters are exercising the option; provided
that if such date falls on a day that is not a Business Day (as defined herein), said option will
expire on the next succeeding Business Day. 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 1 hereto bears to the aggregate number of the Firm Units, subject
to such adjustments as the Representative, in its absolute discretion, shall make to eliminate any
fractional units.
4. 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 3(b) hereof shall have
been exercised prior to the Closing Date) shall be made at the offices of Xxxxxxx Xxxxx, Houston,
Texas, at 10:00 a.m., New York City time, on March 22, 2011 or at such time on such later date not
more than three Business Days after the foregoing date as the Representative shall designate, which
date and time may be postponed by agreement between the Representative, the Partnership and the
Selling Unitholder or as provided in Section 11 hereof (such date and time of
-17-
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 Selling Unitholder by wire
transfer payable in same-day funds to an account specified by the Selling Unitholder. Delivery of
the Firm Units shall be made through the facilities of DTC unless the Representative shall
otherwise instruct. As used in 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 3(b) hereof is exercised after the third
Business Day prior to the Closing Date, the Selling Unitholder shall deliver the Option Units to
the Underwriters, at the offices of Xxxxxxx Xxxxx LLP, Houston, Texas, on the date and at the time
specified by the Representative (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 Selling Unitholder by wire transfer payable in same-day funds to an account specified by the
Selling Unitholder. Delivery of the Option Units shall be made through the facilities of DTC
unless the Representative shall otherwise instruct. If any Option Closing Date for the Option
Units occurs after the Closing Date, the Selling Unitholder shall deliver to the Underwriters
on any 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 8 hereof.
5. 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 Pricing Disclosure Package
and the Prospectus.
6. Further Agreements of the NRP Parties and the Underwriters.
(a) Each of the NRP Parties, jointly and severally, agrees:
(i) Preparation of Prospectus and Registration Statement. (i) To prepare the
Prospectus in a form approved by the Underwriters and to file such Prospectus pursuant to
Rule 424(b) under the Securities Act not later than Commission’s close of business on the
second business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities
Act; (ii) to make no further amendment or any supplement to the Registration Statement or to
the Prospectus except as permitted herein; (iii) to advise the Underwriters, promptly after
it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed; (iv) to advise the Underwriters promptly after it receives notice
thereof of the issuance by the Commission of any stop order or of any order preventing or
suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the
suspension of the qualification of the Units for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose or of any request by
the Commission for the amending or supplementing of the Registration
-18-
Statement, the
Prospectus or any Issuer Free Writing Prospectus or for additional information; and (v) in
the event of the issuance of any stop order or of any order preventing or suspending the use
of the Prospectus or any Issuer Free Writing Prospectus or suspending any such
qualification, to use promptly its commercially reasonable efforts to obtain its withdrawal.
(ii) Exchange Act Reports. To file promptly all reports and any definitive proxy or
information statements required to be filed by the Partnership with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (“Exchange Act Reports”)
subsequent to the date of the Prospectus and for so long as the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and
Regulations) is required in connection with the offering or sale of the Units.
(iii) Copies of Documents to the Underwriters. Upon their request, to deliver
promptly to the Underwriters such number of the following documents as the Underwriters
shall reasonably request: (i) conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto (in each case excluding exhibits), (ii)
each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus,
(iii) each Issuer Free Writing Prospectus and (iv) any document incorporated by reference in
any Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is
required at any time after the date hereof in connection with the offering or sale of the
Units or any other securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made
when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules
and Regulations) is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus (or in lieu thereof, the notice referred to
in Rule 173(a) of the Rules and Regulations) or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Securities Act or
the Exchange Act or with a request from the Commission, to notify the Underwriters
immediately thereof and to promptly prepare and, subject to Section 6(a)(iv) hereof,
file with the Commission an amended Prospectus or supplement to the Prospectus which will
correct such statement or omission or effect such compliance
(iv) Filing of Amendment or Supplement. To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus, any supplement to the Prospectus
or any new, replacement registration statement that may, in the judgment of the Partnership
or the Underwriters, be required by the Securities Act or the Exchange Act or requested by
the Commission. Prior to filing with the Commission any amendment to the Registration
Statement, any supplement to the Prospectus or any new, replacement registration statement,
any document incorporated by reference in the Prospectus or any Prospectus pursuant to Rule
424 of the Rules and Regulations, to furnish a copy thereof to the Underwriters and counsel
for the Underwriters and not to file any such document to which the Underwriters shall
reasonably object after having
-19-
been given reasonable notice of the proposed filing thereof
unless the Partnership is required by law to make such filing. The Partnership will furnish
to the Underwriters such number of copies of such new registration statement, amendment or
supplement as the Underwriters may reasonably request and use its commercially reasonable
efforts to cause such new registration statement or amendment to be declared effective as
soon as practicable. In any such case, the Partnership will promptly notify the
Representative of such filings and effectiveness
(v) 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 that will
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(vi) Signed Copies of the Registration Statement and Prospectus. The Partnership
will, upon request, furnish to the Underwriters and counsel for the Underwriters, without
charge, 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
Securities Act, as many copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Underwriters may reasonably request.
(vii) Qualification of Securities. The Partnership will arrange, if necessary, for
the qualification of the Units for sale under the securities laws, “Blue Sky” laws or laws
of such states as the Underwriters may reasonably 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 or subject
itself to taxation in any jurisdiction where it is not now so qualified or subject to
taxation 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.
(viii) Lock-up Period; Lock-up Letters. For a period commencing on the date hereof
and ending on the 60th day from the date of the Prospectus (the “Lock-Up
Period”), the NRP Parties shall not, directly or indirectly, (i) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or device that is designed to,
or could be expected to, result in the disposition by any person at any time in the future
of) any Common Units or securities convertible into or exchangeable for Common Units (other
than Common Units issued pursuant to employee benefit plans, qualified stock option plans or
other employee compensation plans existing on the date hereof or pursuant to currently
outstanding options, warrants or rights), or sell or grant options, rights or warrants with
respect to any Common Units or securities convertible into or exchangeable for Common Units
(other than the grant of options or restricted units
-20-
pursuant to option plans or employee
benefit plans existing on the date hereof), (ii) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic benefits or
risks of ownership of such Common Units, whether any such transaction described in
clause (i)
or (ii) above is to be settled by delivery of Common Units or other securities,
in cash or otherwise, (iii) file or cause to be filed a registration statement with respect
to the
registration of any Common Units, securities convertible, exercisable or exchangeable
into Common Units or any other securities of the Partnership or (iv) publicly disclose the
intention to do any of the foregoing, in each case without the prior written consent of the
Representative, on behalf of the Underwriters, except that the NRP Parties may transfer such
securities to affiliates of the General Partner or Managing General Partner provided that
such affiliates agree in writing to be bound by the foregoing restrictions of this
Section 6(a)(viii) by executing and delivering to the Representative a letter or
letters substantially in the form of Exhibit A hereto, and (b) the Partnership may
issue Common Units in connection with acquisitions provided that, in connection with such
issuance, the recipients of such Common Units agree in writing to be bound by the foregoing
restrictions of this Section 6(a)(viii)by executing and delivering to the
Representative a letter or letters substantially in the form of Exhibit A hereto.
Each executive officer and director of the Managing General Partner and each unitholder of
the Partnership set forth on Schedule 4 hereto shall furnish to the Underwriters,
prior to or on the date of this Agreement, a letter substantially in the form of Exhibit
A hereto (the “Lock-Up Agreements”).
(ix) Price Manipulation. The NRP Parties 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.
(x) Issuer Free Writing Prospectus. Not to make any offer relating to the Units
that would constitute an Issuer Free Writing Prospectus without the prior written consent of
the Representative.
(xi) Retention of Issuer Free Writing Prospectuses. To retain in accordance with
the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed
pursuant to the Rules and Regulations; and if at any time after the date hereof and prior to
the Closing Date or any Option Closing Date, any events shall have occurred as a result of
which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict
with the information in the Registration Statement, the most recent Preliminary Prospectus
or the Prospectus or, when considered together with the most recent Preliminary Prospectus,
would include an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or, if for any other reason it shall be necessary to
amend or supplement any Issuer Free Writing Prospectus, to notify the Representative and,
upon its reasonable request or as required by the Rules and Regulations, to file such
document and to prepare and furnish without charge to each Underwriter as many copies as the
Representative may from time to time reasonably request of an amended or
supplemented Issuer Free Writing Prospectus that will correct such conflict, statement
or omission or effect such compliance.
-21-
(b) Use of “Issuer Information” in “Free Writing Prospectus.” Each Underwriter severally
agrees that such Underwriter shall not include any “issuer information” (as defined in Rule 433) in
any “free writing prospectus” (as defined in Rule 405) used or referred to by such Underwriter
without the prior written consent of the Partnership (any such issuer information with respect to
whose use the Partnership has given its consent, “Permitted Issuer Information”).
7. Further Agreements of the Selling Unitholder. The Selling Unitholder Agrees:
(a) Selling Unitholder Lock-Up Period. During the period commencing on the date hereof and
ending on the 90th day from the date of the Prospectus (the “Selling Unitholder
Lock-Up Period”), not to, directly or indirectly, without the prior written consent of the
Representative, on behalf of the Underwriters: (A) offer for sale, sell, pledge, transfer or
otherwise dispose of (or enter into any transaction or device that is designed to, or could be
expected to, result in the disposition by any individual or entity at any time in the future of)
any Common Units or securities convertible into or exchangeable or exercisable for Common Units
(other than the Units); (B) sell or grant any options, rights or warrants with respect to any
Common Units or securities convertible into or exchangeable or exercisable for Common Units; (C)
enter into any swap or other derivatives transaction that transfers to another, in whole or in
part, any of the economic benefits or risks of ownership of any Common Units, whether any such
transaction described in clause (A), (B) or (C) above is to be settled by delivery of Common Units
or other securities, in cash or otherwise; (D) make any demand for or exercise any right or file or
cause to be filed a registration statement, including any amendments thereto, with respect to the
registration of any equity securities or any securities convertible into or exchangeable or
exercisable for equity securities of the Partnership; or (E) publicly disclose the intention to do
any of the foregoing; provided, however, that the restrictions contained in this Section 7 shall
not apply to or restrict (i) registration of or sale to the Underwriter of any Common Units
pursuant to the offering and this Agreement, (ii) distributions of Common Units to partners,
members or stockholders of the Selling Unitholder, (iii) bona fide gifts, (iv) dispositions to any
trust, family limited partnership or family limited liability company for the direct or indirect
benefit of the Selling Unitholder and/or the immediate family of the Selling Unitholder, or (v) the
Selling Unitholder’s ability to pledge Common Units (the “Pledge Units”) pursuant to any
bona fide loan agreement (the “Loan Agreement”) with one or more national banks (the
“Lender”) or transfer some or all of the Pledge Units to the Lender upon a default or an
event of default by it under the Loan Agreement; provided, however, that in the case of transfers
pursuant to clauses (ii), (iii) and (iv) set forth above, such transferee agrees in writing with
the Underwriter to be bound by the terms of this Section 7, confirms that he, she or it has been in
compliance with the terms of Section 7 since the date of this Agreement and no filing by any party
under the Exchange Act shall be required or shall be voluntarily made reporting a reduction in
beneficial ownership of Common Units during the Selling Unitholder Lock-Up Period;
(b) Free Writing Prospectus. Not to use or refer to, or permit any person acting on its
behalf (other than, if applicable, the Partnership and the Underwriters) to use or refer to, any
“free writing prospectus” (as defined in Rule 405) relating to the Units;
(c) Market Stabilization. Not to take, directly or indirectly, any action that would
constitute, that is designed to cause or result in, or that could reasonably be expected to
-22-
cause
or result in, the stabilization or manipulation of the price of any security of any NRP Party to
facilitate the sale or resale of the Units; and
(d) Document Delivery. To deliver to the Representative prior to the Initial Delivery Date
a properly completed and executed United States Treasury Department Form W-9 or other applicable
form.
8. 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 of the NRP Parties and the Selling Unitholder
contained herein as of the Applicable Time, the Closing Date and, if applicable, any Option Closing
Date, to the accuracy of the statements of the NRP Parties and the Selling Unitholder made in any
certificates pursuant to the provisions hereof, to the performance by the NRP Parties and the
Selling Unitholder of their obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with
Section 6(a)(i) of this Agreement; no stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free
Writing Prospectus or any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or, to the Partnership’s knowledge, threatened by the Commission; any
request of the Commission for inclusion of additional information in the Registration Statement or
the Prospectus or otherwise shall have been complied with to the reasonable satisfaction of the
Underwriters; and the Commission shall not have notified the Partnership of any objection to the
use of the form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the Partnership on or prior to
the Closing Date or any Option Closing Date, as applicable, that the Registration Statement, the
Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, contains an
untrue statement of fact which, in the reasonable opinion of Xxxxxxx Xxxxx LLP, counsel for the
Underwriters, is material or omits to state a fact that, in the reasonable opinion of such counsel,
is material and is required to be stated therein or is necessary to make the statements therein not
misleading (in the case of the Prospectus or the Pricing Disclosure Package, in the light of the
circumstances under which such statements were made).
(c) All corporate, partnership or limited liability company proceedings and other legal
matters incident to the authorization, execution and delivery of this Agreement, the authorization,
execution and filing of the Registration Statement, any Preliminary Prospectus, the Prospectus and
any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby 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 or their counsel may reasonably request to
enable them to pass upon such matters.
(d) The Partnership shall have requested and caused Xxxxxx & Xxxxxx L.L.P., counsel for
the Partnership, to have furnished to the Representative its written opinion, dated the Closing
Date and any Option Closing Date, if applicable, and addressed to the Underwriters, in
-23-
form and
substance satisfactory to the Underwriters, substantially in the form attached hereto as
Exhibit B.
(e) The Partnership shall have requested and caused Xxxxx X. Xxxxx, Vice President,
General Counsel and Secretary of the Managing General Partner, to have furnished to the
Representative his written opinion, dated the Closing Date and any Option Closing Date, if
applicable, and addressed to the Underwriters, substantially in the form attached hereto as
Exhibit C.
(f) The Selling Unitholder shall have requested and caused Xxxxxx Xxxxxx & Xxxxxxx LLP,
counsel for the Selling Unitholder, to have furnished to the Representative its written opinion,
dated the Closing Date and any Option Closing Date, if applicable, and addressed to the
Underwriters, in form and substance satisfactory to the Underwriters, substantially in the form
attached hereto as Exhibit D.
(g) The Underwriters shall have received from Xxxxxxx Xxxxx LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and any Option Closing Date, if
applicable, and addressed to the Underwriters, with respect to any matters as the Underwriters may
reasonably require, and the Partnership shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters.
(h) The Managing General Partner shall have furnished to the Underwriters a certificate
signed by the Chairman of the Board or the President and the principal financial or accounting
officer of the Managing General Partner, dated the Closing Date and addressed to the Underwriters,
stating that:
(i) The representations and warranties of the NRP Parties in this Agreement are
true and correct on and as of the Closing Date and any Option Closing Date, if applicable,
with the same effect as if made on the Closing Date and any Option Closing Date, as
applicable, and that the NRP Parties 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 or
Option Closing Date, as applicable;
(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 person’s
knowledge, threatened; and
(iii) They have carefully examined the Registration Statement, the Pricing
Disclosure Package and the Prospectus and, in their opinion, (A) the Registration Statement,
as of the latest Effective Date, the Pricing Disclosure Package, as of the
Applicable Time, and the Prospectus, as of its date and as of the Closing Date or
Option Closing Date, as applicable, did not and do not contain any untrue statement of a
material fact and did not and do not omit to state a material fact required to be stated
therein or
necessary to make the statements therein (in the case of the Pricing Disclosure Package
and the Prospectus, in the light of the circumstances under which they were made) not
misleading, and (B) since the Effective Date, no event has occurred that should have been
-24-
set forth in a supplement or amendment to the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus that has not been so set forth.
(i) The Selling Unitholder shall have furnished to the Underwriters a certificate, dated
the Closing Date, signed by, or on behalf of, the Selling Unitholder stating that the
representations, warranties and agreements of the Selling Unitholder in Section 2 hereof
are true and correct on and as of the Closing Date and any Option Closing Date, as applicable, and
that the Selling Unitholder has complied with all its agreements contained herein and satisfied all
the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date
or Option Closing Date, as applicable.
(j) At the time of execution of this Agreement, the Underwriters shall have received from
Ernst & Young LLP a letter or letters, in form and substance satisfactory to the Underwriters,
addressed to the Underwriters and dated the date hereof (i) confirming that they are an independent
registered public accounting firm within the meaning of the Securities Act and are in compliance
with the applicable rules and regulations thereunder adopted by the Commission and the PCAOB, and
(ii) stating, as of the date hereof (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is given in the Pricing
Disclosure Package and the Prospectus, as of a date not more than five days prior to the date
hereof), the conclusions and findings of such firm with respect to the financial information and
other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection
with registered public offerings.
(k) With respect to the letter or letters of Ernst & Young LLP referred to in the
preceding paragraph and delivered to the Underwriters concurrently with the execution of this
Agreement (the “initial letters”), such accounting firm shall have furnished to the
Underwriters a letter (the “bring-down letter”) of Ernst & Young LLP, addressed to the
Underwriters and dated the Closing Date or Option Closing Date, if applicable (i) confirming that
they are an independent registered public accounting firm within the meaning of the Securities Act
and are in compliance with the applicable rules and regulations thereunder adopted by the
Commission and the PCAOB, (ii) stating, as of the date of the bring-down letter (or, with respect
to matters involving changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more than five days prior to the
date of the bring-down letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial letters and (iii) confirming in all
material respects the conclusions and findings set forth in the initial letters
(l) Except as described in the Pricing Disclosure Package and the Prospectus, (i) no
member of the Partnership Group shall have sustained, since the date of the latest audited
financial statements included or incorporated by reference in the Pricing Disclosure Package and
the Prospectus (exclusive or any amendment or supplement thereto after the date hereof), any
loss or interference with its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or governmental action, order or
decree or (ii) since such date there shall not have been any adverse change in the capital stock or
long-term debt of any member of the Partnership Group or any change, or any development involving a
prospective adverse change, in or affecting the condition (financial or otherwise), results of
operations, stockholders’ equity, properties, management, business or prospects of the
-25-
Partnership
Group taken as a whole, the effect of which, in any such case described in clause (i) or
(ii), is, in the judgment of the Representative, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery of the Units being
delivered on the Closing Date or Option Closing Date, as applicable, on the terms and in the manner
contemplated in the Pricing Disclosure Package and the Prospectus.
(m) Subsequent to the execution and delivery of this Agreement there shall not have
occurred any of the following: (i) trading in any securities of the Partnership shall have been
suspended or materially limited by the Commission or on any exchange or in the over-the-counter
market or minimum prices shall have been established or settlement disrupted in respect of any of
the Partnership’s securities on any exchange or market, (ii) trading in securities generally on the
New York Stock Exchange or the American Stock Exchange or in the over-the-counter market shall have
been suspended or materially limited or the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (iii) a banking moratorium shall have been declared by federal or
state authorities, (iv) the United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (v) a material adverse change in
general economic, political or financial conditions, including, without limitation, as a result of
terrorist activities after the date hereof (or the effect of international conditions on the
financial markets in the United States shall be such), as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the public offering or delivery of the
Units being delivered on the Closing Date or any Option Closing Date, as applicable, on the terms
and in the manner contemplated in the Pricing Disclosure Package and the Prospectus.
(n) The NRP Parties and the Selling Unitholder shall have furnished to the Underwriters
such further information, certificates and documents as the Underwriters may reasonably request.
(o) At the Closing Date, pursuant to Section 6(a)(viii) hereof, the Partnership
shall have furnished to the Underwriters letters, dated as of the date hereof, addressed to the
Underwriters substantially in the form of Exhibit A hereto from each of the persons and
entities listed on Schedule 4 hereto.
(p) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall
have occurred in the rating accorded the Partnership’s debt securities by any “nationally
recognized statistical rating organization”, as that term is defined by the Commission for purposes
of Rule 436(g)(2) of the Rules and Regulations, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Partnership’s debt securities.
If any of the conditions specified in this Section 8 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
-26-
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, any Option Closing Date by the Underwriters. Notice
of such cancellation shall be given to each of the Partnership and the Selling Unitholder in
writing or by telephone or facsimile confirmed in writing.
9. Expenses; Reimbursement of Underwriters’ Expenses.
(a) The NRP Parties agree, whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, to pay all costs, expenses, fees and taxes incident to
and in connection with (a) the preparation, printing and filing under the Securities Act of the
Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto; (b) the
distribution of the Registration Statement (including any exhibits thereto), any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement
thereto, or any document incorporated by reference therein, all as provided in this Agreement; (c)
the production and distribution of this Agreement, any supplemental agreement with the
Underwriters, and any other related documents in connection with the offering, purchase, sale and
delivery of the Units; (d) any required review by the FINRA of the terms of sale of the Units
(including related fees and expenses of counsel to the Underwriters); (e) any listing of the Units
on the New York Stock Exchange; (f) the qualification of the Units under the securities laws of the
several jurisdictions as provided in Section 6(a)(vii) hereof; (g) the costs and charges of any
transfer agent, registrar or depositary and (h) the performance of the obligations of the NRP
Parties under this Agreement; provided that, except as provided in this Section 9 and in Sections
10 and 11 hereof, the Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel and the expenses of advertising any offering of the Units made by the
Underwriters.
(b) 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 8 hereof (other than Section
8(m)(i) through 8(m)(v)) is not satisfied or because of any refusal, inability or
failure on the part of any NRP Party or the Selling Unitholder 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 Parties shall, jointly and severally, reimburse the Underwriters through the Representative on
demand for all reasonable 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. If the sale of the Units provided herein is not consummated because any condition set
forth in Section 8(m)(ii) through 8(m)(v) is not satisfied, the NRP Parties shall
not be obligated to reimburse any Underwriter for such Underwriter’s expenses.
10. Indemnification and Contribution.
(a) The NRP Parties, jointly and severally, shall indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter, affiliates of any
Underwriter who have, or who are alleged to have, participated in the distribution of the Units as
underwriters, and each person who controls any Underwriter within the meaning of Section 15 of the
Securities Act, from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim, damage,
-27-
liability or
action relating to purchases and sales of the Units), to which such Underwriter, director, officer,
employee, agent, affiliate or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact contained in (A) any
Preliminary Prospectus, the Registration Statement, or the Prospectus (in the case of all of the
foregoing, other than the Registration Statement, in the light of the circumstances under which any
such statements were made), or in any amendment or supplement thereto, (B) any Blue Sky application
or other document prepared or executed by the NRP Parties (or based upon any written information
furnished by the NRP Parties for use therein) specifically for the purpose of qualifying any or all
of the Units under the securities laws of any state or other jurisdiction (any such application,
document or information being hereinafter called a “Blue Sky Application”), (C) any Issuer
Free Writing Prospectus or in any amendment or supplement thereto, (D) any Permitted Issuer
Information used or referred to in any “free writing prospectus” (as defined in Rule 405 of the
Rules and Regulations), or (E) any “road show” (as defined in Rule 433 of the Rules and
Regulations) not constituting an Issuer Free Writing Prospectus (a “Non-Prospectus Road
Show”), (ii) the omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or
supplement thereto or in any Permitted Issuer Information, any Non-Prospectus Road Show or in any
Blue Sky Applications, any material fact required to be stated therein or necessary to make the
statements therein (in the case of all of the foregoing, other than the Registration Statement, in
the light of the circumstances under which any such statements were made) not misleading, or (iii)
any act or failure to act or any alleged act or failure to act by any Underwriter in connection
with, or relating in any manner to, the Units or the offering contemplated hereby, and that is
included as part of or referred to in any loss, claim, damage, liability or action arising out of
or based upon matters covered by clause (i) or (ii) above (provided that the NRP Parties
shall not be liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage, liability or action
resulted directly from any such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct) and shall reimburse each
Underwriter and each such director, officer, employee, agent, affiliate or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by that Underwriter,
director, officer, employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the NRP Parties shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus, or in any such amendment or supplement thereto or in any
Permitted Issuer Information, any Non-Prospectus Road Show or in any Blue Sky Application in
reliance upon and in conformity with written information concerning such Underwriters furnished to
the Partnership through the Representative by or on behalf of any Underwriters specifically for
inclusion therein, which information consists solely of the information specified in Section
10(f) below. The foregoing indemnity agreement is in addition to any liability which any NRP
Party may otherwise have to any Underwriter or to any director, officer, employee, agent, affiliate
or controlling person of such Underwriter.
-28-
(b) The Selling Unitholder shall indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents or each Underwriter, affiliates of any Underwriter who have, or who
are alleged to have, participated in the distribution of the Units as underwriters, and each person
who controls any Underwriter within the meaning of Section 15 of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action relating to purchases
and sales of the Units), to which such Underwriter, director, officer, employee, agent, affiliate
or controlling person may become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in (A) any Preliminary Prospectus, the
Registration Statement or the Prospectus (in the case of all of the foregoing, other than the
Registration Statement, in the light of the circumstances under which any such statements were
made), or in any amendment or supplement thereto, (B) any Permitted Issuer Information used or
referred to in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations),
prepared by or on behalf of the Selling Unitholder or used or referred to by the Selling Unitholder
in connection with the offering of the Units in violation of Section 7(b) (a “Selling
Unitholder Free Writing Prospectus”) or (C) any Non-Prospectus Road Show or (ii) the omission
or alleged omission to state in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto, or in any
Permitted Issuer Information, any Non-Prospectus Road Show or any Selling Unitholder Free Writing
Prospectus, any material fact required to be stated therein or necessary to make the statements
therein (in the case of all of the foregoing, other than the Registration Statement, in the light
of the circumstances under which such statements were made) not misleading, and shall reimburse
each Underwriter and each such director, officer, employee, agent, affiliated or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by such Underwriter,
director, officer, employee, agent, affiliate or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Selling Unitholder shall be
liable in any such case only to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus or any such amendment or supplement thereto or in any Permitted
Issuer Information or any Non-Prospectus Road Show in reliance upon and in conformity with written
information concerning such Selling Unitholder furnished to the Partnership by the Selling
Unitholder specifically for inclusion therein, which information is limited to the name of the
Selling Unitholder, the number of Common Units to be sold by the Selling Unitholder and the other
information with respect to the Selling Unitholder (excluding percentages) set forth in the
Prospectus Supplement in the table under the caption “Selling Unitholder”, or arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in any Selling
Unitholder Free Writing Prospectus. The liability of the Selling Unitholder under the indemnity
agreement contained in this paragraph shall be limited to an amount equal to the aggregate proceeds
(net of underwriting commissions and discounts but before deducting expenses), received by the
Selling Unitholder from the offering of the Units purchased under the Agreement. The foregoing
indemnity agreement is in addition to any liability that the Selling Unitholder may otherwise
-29-
have
to any Underwriter or any director, officer, employee, agent, affiliate or controlling person of
such Underwriter.
(c) Each Underwriter shall, severally and not jointly, indemnify and hold harmless each NRP
Party and the Selling Unitholder, each of their respective directors, officers and employees, and
each person, if any, who controls such NRP Party or the Selling Unitholder within the meaning of
Section 15 the Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which such NRP Party, the Selling Unitholder or any
such director, officer, employee or controlling person may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any amendment or supplement thereto or in any Non-Prospectus Road Show or Blue Sky
Application (in the case of all of the foregoing, other than the Registration Statement, in the
light of the circumstances under which any such statements were made) or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any
Permitted Issuer Information, any Non-Prospectus Road Show or in any Blue Sky Application, any
material fact required to be stated therein or necessary to make the statements therein (in the
case of all of the foregoing, other than the Registration Statement, in the light of the
circumstances under which any such statements were made) not misleading, but in each case only to
the extent that the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information concerning such Underwriter
furnished to the Partnership through the Representative by or on behalf of that Underwriter
specifically for inclusion therein, which information is limited to the information set forth in
Section 10(f) below, and shall reimburse such NRP Party, the Selling Unitholder and any
such director, officer, employee or controlling person for any legal or other expenses reasonably
incurred by such NRP Party and the Selling Unitholder or any such director, officer, employee or
controlling person in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the
Partnership, the Selling Unitholder or any such director, officer, employee or controlling person.
(d) Promptly after receipt by an indemnified party under this Section 10 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 10 except to the extent it has been materially prejudiced by
such failure and, provided further, that the failure to notify the indemnifying party shall
not relieve it from any liability which it may have to an indemnified party otherwise than under
this Section 10. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified party of its
election to
-30-
assume the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 10 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the Representative shall have the right to employ
counsel to represent jointly the Representative and those other Underwriters and their respective
directors, officers, employees, agents, affiliates and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought by the Underwriters
against the NRP Parties or the Selling Unitholder under this Section 10 if (i) the
indemnifying party and the indemnified party shall have so mutually agreed; (ii) if the
indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to
the indemnified party; (iii) the indemnified party and its directors, officers, employees, agents,
affiliates and controlling persons shall have reasonably concluded that there may be legal defenses
available to them that are different from or in addition to those available to the indemnifying
party; or (iv) the named parties in any such proceeding (including any impleaded parties) include
both the indemnified party and its directors, officers, employees, agents, affiliates and
controlling persons, on the one hand, and the indemnifying party, on the other hand, and
representation of both sets of parties by the same counsel would be inappropriate due to actual or
potential differing interests between them, and in any such event the fees and expenses of such
separate counsel shall be paid by the indemnifying party. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such claim, action, suit or
proceeding and does not include any findings of fact or admissions of fault or culpability as to
the indemnified party or (ii) be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if settled with the consent
of the indemnifying party or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under Sections 10(a),
(b) or (c) in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each applicable indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits received by the NRP
Parties and the Selling Unitholder on the one hand and the Underwriters on the other from the offering of the Units or
(ii) if the allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the NRP Parties and the Selling Unitholder
on the one hand and the Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the NRP Parties and the
Selling Unitholder on
-31-
the one hand and the Underwriters on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the offering of the
Units purchased under this Agreement (before deducting expenses) received by the Selling
Unitholder, as set forth on the front cover of the Prospectus, on the one hand and the total
underwriting discounts and commissions received by the Underwriters with respect to the Units
purchased under this Agreement, as set forth on the front cover of the Prospectus, on the other
hand, bear to the total gross proceeds from the offering of the Units under this Agreement, as set
forth on the front cover of the Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Partnership, the Selling Unitholder
or the Underwriters, the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The NRP Parties, the Selling
Unitholder and the Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 10 were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss, claim, damage or liability, or action
in respect thereof, referred to above in this Section 10 shall be deemed to include, for
purposes of this paragraph (e), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this paragraph (e)), no Underwriter
shall be required to contribute any amount in excess of the amount by which the total price at
which the Units underwritten by it and distributed to the public was offered to the public exceeds
the amount of any damages which such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute as provided in this paragraph
(e) are several in proportion to their respective underwriting obligations and not joint.
(f) The Underwriters severally confirm and the NRP Parties and the Selling Unitholder
acknowledge that the public offering price and the statements regarding the delivery of the Units
by the Underwriters set forth on the cover page of the Prospectus and the concession and
reallowance figures and the paragraph relating to stabilization by the Underwriters appearing under
the caption “Underwriting” in the Prospectus are correct and constitute the only information
concerning the Underwriters furnished in writing to the Partnership by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement, the Preliminary Prospectus,
the Prospectus, any Issuer Free Writing Prospectus or in any amendment of supplement thereto or in
any Non-Prospectus Road Show.
(g) The Selling Unitholder confirms, and the NRP Parties and the Underwriters acknowledge and
agree, that the name of the Selling Unitholder, the number of Units to be sold by the Selling
Unitholder and other information with respect to the Selling Stockholder (excluding percentages)
which appears in the table under the caption “Selling Unitholder” in the Prospectus Supplement
constitute the only information concerning the Selling Unitholder furnished in writing to the NRP
Parties by or on behalf of the Selling Unitholder
-32-
specifically for inclusion in the Registration
Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement
thereto or in any Non-Prospectus Road Show.
11. Defaulting Underwriters. If, on the Closing Date or Option Closing Date, as
applicable, any Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the Units that the
defaulting Underwriter agreed but failed to purchase on such date in the respective proportions
which the number of Firm Units set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total number of Firm Units set forth opposite
the names of all the remaining non-defaulting Underwriters in Schedule 1 hereto; provided,
however, that the remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Units on such date if the total number of Units which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the total number of Units
to be purchased on such date, and any remaining non-defaulting Underwriter shall not be obligated
to purchase more than 110% of the number of Units which it agreed to purchase on such date pursuant
to the terms of Section 3. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the Representative who so
agree, shall have the right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Units to be purchased on such date. If the remaining Underwriters
or other underwriters satisfactory to the Representative do not elect to purchase the Units that
the defaulting Underwriter or Underwriters agreed but failed to purchase on such date, this
Agreement (or, with respect to any Option Closing Date, the obligation of the Underwriters to
purchase, and of the Selling Unitholder to sell, the Option Units) shall terminate without
liability on the part of any non-defaulting Underwriter or any of the NRP Parties or the Selling
Unitholder, except that the Partnership and the Selling Unitholder will continue to be liable for
the payment of expenses to the extent set forth in Section 9(b). As used in this
Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto that, pursuant to this
Section 11, purchases Units that a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the NRP Parties or the Selling Unitholder for damages caused by its default. If other
Underwriters are obligated or agree to purchase the Units of a defaulting or withdrawing
Underwriter, either the Representative or the NRP Parties may postpone the Closing Date or any
Option Closing Date, as applicable, for up to seven full business days in order to effect any
changes that in the opinion of counsel for the NRP Parties or counsel for the Underwriters may be
necessary in the Registration Statement, the Final Prospectus or in any other document or
arrangement.
12. Termination. The obligations of the Underwriters hereunder may be terminated by
the Representative by notice given to and received by the Partnership and the Selling Unitholder
prior to delivery of and payment for the Units if, prior to that time, any of the events described
in Sections 8(l) and 8(m) shall have occurred or if the Underwriters shall decline
to purchase the Units for any reason permitted under this Agreement.
13. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the NRP Parties, the Selling
-33-
Unitholder and 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, NRP
Party or the Selling Unitholder or any of their respective officers, directors, employees, agents,
affiliates or controlling persons referred to in Section 10 hereof, and will survive
delivery of and payment for the Units. The provisions of Sections 9 and 10 hereof
shall survive the termination or cancellation of this Agreement.
14. Research Independence. The NRP Parties and the Selling Unitholder acknowledge
that the Underwriters’ research analysts and research departments are required to be independent
from their respective investment banking divisions and are subject to certain regulations and
internal policies, and that such Underwriters’ research analysts may hold and make statements or
investment recommendations and/or publish research reports with respect to the NRP Parties and/or
the offering that differ from the views of its investment bankers. The NRP Parties and the Selling
Unitholder hereby waive and release, to the fullest extent permitted by law, any claims that the
NRP Parties or the Selling Unitholder may have against the Underwriters with respect to any
conflict of interest that may arise from the fact that the views expressed by their independent
research analysts and research departments may be different from or inconsistent with the views or
advice communicated to the NRP Parties or the Selling Unitholder by such Underwriters’ investment
banking divisions. The NRP Parties and the Selling Unitholder acknowledge that each of the
Underwriters is a full service securities firm and as such from time to time, subject to applicable
securities laws, may effect transactions for its own account or the account of its customers and
hold long or short positions in debt or equity securities of the companies which may be the subject
of the transactions contemplated by this Agreement.
15. No Fiduciary Duty. Notwithstanding any preexisting relationship, advisory or
otherwise, between the parties or any oral representations or assurances previously or subsequently
made by the Underwriters, each of the NRP Parties and the Selling Unitholder acknowledge and agree
that: (i) nothing herein shall create a fiduciary or agency relationship between any NRP Party or
the Selling Unitholder, on the one hand, and the Underwriters, on the other; (ii) the Underwriters
are not acting as advisors, expert or otherwise, to any NRP Party or the Selling Unitholder in
connection with this offering, sale of the Units or any other services the Underwriters may be
deemed to be providing hereunder, including, without limitation, with respect to the public
offering price of the Units; (iii) the relationship between any NRP Party and the Selling
Unitholder, on the one hand, and the Underwriters, on the other, is entirely and solely commercial,
based on arms-length negotiations; (iv) any duties and obligations that the Underwriters may have
to any NRP Party or the Selling Unitholder shall be limited to those duties and obligations
specifically stated herein; and (v) notwithstanding anything in this Agreement to the contrary,
each of the NRP Parties and the Selling Unitholder acknowledge that the Underwriters may have
financial interests in the success of the Offering that are not limited to the difference between
the price to the public and the purchase price paid to the Selling Unitholder by the Underwriters
for the Units and the Underwriters have no obligation to disclose, or account to any NRP Party or
the Selling Unitholder for, any of such additional financial interests. Each of the NRP Parties
and the Selling Unitholder hereby waive and release, to the fullest extent permitted by law, any
claims that any NRP Party or the Selling Unitholder may have against the Underwriters with respect
to any breach or alleged breach of fiduciary duty.
-34-
16. 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 Xxxxxx Xxxxxxx
& Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk (Fax:
000-000-0000), and, if sent to any member of the Partnership Group, will be mailed, delivered or
telefaxed to Xxxxx X. Xxxxx, Natural Resource Partners L.P., 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000 (fax no.: (000-000-0000) and, if sent to the Selling Unitholder, will be
mailed, delivered or telefaxed to Adena Minerals, LLC, 0000 XXX Xxxxxxxxx, Xxxx Xxxxx Xxxxxxx, XX
00000-0000, attention: Xxxxxx Xxxxxxx with a copy to Xxxxxx & Xxxxxxx LLP, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, attention: Xxxxx Xxxxxxx, Esq. (Fax: 000-000-0000). The NRP Parties and the
Selling Unitholder shall be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Underwriters by Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the
Underwriters.
17. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the Underwriters, the NRP Parties, the Selling Unitholder and their
respective successors. This Agreement and the terms and provisions hereof are for the sole benefit
of only those persons, except that (A) the representations, warranties, indemnities and agreements
of the NRP Parties and the Selling Unitholder contained in this Agreement shall also be deemed to
be for the benefit of the directors, officers, employees, agents and affiliates of the Underwriters
and each person or persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained in Section
10(c) of this Agreement shall be deemed to be for the benefit of the directors of the NRP
Parties and the Selling Unitholder, the officers of the NRP Parties who have signed the
Registration Statement and any person controlling the NRP Parties or the Selling Unitholder within
the meaning of Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section 17, any
legal or equitable right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
18. 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.
19. 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.
20. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
21. Entire Agreement. This Agreement, including the Schedules and Exhibits hereto,
constitutes the entire agreement among the parties pertaining to the subject mater hereof and
supersedes all other prior and contemporaneous agreements and understandings, whether oral and
written, of the parties in connection therewith.
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
-35-
represent a binding agreement among the NRP Parties, the Selling Unitholder and the several
Underwriters.
-36-
| Very truly yours, NATURAL RESOURCE PARTNERS L.P. |
||||
| By: | NRP (GP) LP, its general partner | |||
| By: GP Natural Resource Partners LLC, its | ||||
| general partner | ||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Vice President, General Counsel and Secretary | |||
| NRP (GP) LP By: GP Natural Resource Partners LLC, its general partner |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Vice President, General Counsel and Secretary | |||
| GP NATURAL RESOURCE PARTNERS LLC | ||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Vice President, General Counsel and Secretary | |||
Signature Page to Natural Resource Partners L.P. Underwriting Agreement
| Accepted | ||||
| ADENA MINERALS, LLC | ||||
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|||
| Title: Authorized Person | ||||
Signature Page to Natural Resource Partners L.P. Underwriting Agreement
| Accepted: | ||||
| XXXXXX XXXXXXX & CO. INCORPORATED | ||||
| By: XXXXXX XXXXXXX & CO. INCORPORATED | ||||
By:
|
/s/ Xxxxxxx X. Xxxx | |||
| Title: Managing Director | ||||
On behalf of itself and on behalf of the
other Underwriters named in Schedule 1 as
the Representative thereof.
other Underwriters named in Schedule 1 as
the Representative thereof.
Signature Page to Natural Resource Partners L.P. Underwriting Agreement
SCHEDULE
1
NATURAL RESOURCE PARTNERS L.P.
NATURAL RESOURCE PARTNERS L.P.
| Underwriters | Number of Firm Units to be Purchased | |
Xxxxxx Xxxxxxx & Co. Incorporated |
4,800,000 | |
Xxxxxx Xxxxxx & Company, Inc. |
400,000 | |
BB&T Capital Markets, a division of
Xxxxx & Xxxxxxxxxxxx, LLC |
400,000 | |
RBC Capital Markets, LLC |
400,000 | |
TOTAL: |
6,000,000 |
Schedule 1 - 1
SCHEDULE 2
NATURAL RESOURCE PARTNERS L.P.
NATURAL RESOURCE PARTNERS L.P.
| Entity | State of Formation | States of Foreign Qualification | ||
GP Natural Resource Partners LLC
|
Delaware | Texas | ||
| West Virginia | ||||
NRP (GP) LP
|
Delaware | West Virginia | ||
Natural Resource Partners L.P.
|
Delaware | West Virginia | ||
NRP (Operating) LLC
|
Delaware | North Dakota | ||
| Washington | ||||
| West Virginia | ||||
WPP LLC
|
Delaware | Alabama | ||
| Arizona | ||||
| Illinois | ||||
| Indiana | ||||
| Kentucky | ||||
| Maryland | ||||
| Montana | ||||
| Ohio | ||||
| Pennsylvania | ||||
| Tennessee | ||||
| Texas | ||||
| Xxxxxxxx | ||||
| Xxxxxxxxxx | ||||
| West Virginia | ||||
| Wyoming | ||||
ACIN LLC
|
Delaware | Georgia | ||
| Illinois | ||||
| Indiana | ||||
| Kentucky | ||||
| North Carolina | ||||
| North Dakota Virginia |
||||
| West Virginia | ||||
WBRD LLC
|
Delaware | Virginia | ||
| West Virginia | ||||
HOD LLC
|
Delaware | West Virginia | ||
Shepard Boone Coal Company LLC
|
Delaware | West Virginia | ||
Gatling Mineral, LLC
|
Delaware | West Virginia | ||
Independence Land Company, LLC
|
Delaware | Illinois | ||
Xxxxxxxxxx Transport, LLC
|
Delaware | Illinois | ||
Little River Transport, LLC
|
Delaware | West Virginia | ||
Rivervista Mining, LLC
|
Delaware | Ohio | ||
| West Virginia | ||||
Deepwater Transportation, LLC
|
Delaware | Ohio | ||
| West Virginia | ||||
BRP LLC
|
Delaware | Alaska | ||
| Alabama | ||||
| Arkansas | ||||
| California |
Schedule 2 - 1
| Entity | State of Formation | States of Foreign Qualification | ||
| Colorado | ||||
| Florida | ||||
| Georgia | ||||
| Illinois | ||||
| Indiana | ||||
| Kansas | ||||
| Louisiana | ||||
| Maine | ||||
| Michigan | ||||
| Minnesota | ||||
| Mississippi | ||||
| Montana | ||||
| North Carolina | ||||
| North Dakota | ||||
| Nebraska | ||||
| New Mexico | ||||
| Oklahoma | ||||
| Oregon | ||||
| Pennsylvannia | ||||
| South Carolina | ||||
| South Dakota | ||||
| Tennessee | ||||
| Texas | ||||
| Xxxxxxxx | ||||
| Xxxxxxxxxx | ||||
| Wisconsin | ||||
XxXxx Leasing Company, LLC
|
Delaware | Louisiana |
Schedule 2 - 2
SCHEDULE 3
ADDITIONAL PRICING DISCLOSURE PACKAGE
Number of Units: 6,000,000 Firm Units or, if the Underwriters exercise in full their option
to purchase additional Units granted in Section 3 hereof, 6,900,000 Units.
Public Offering Price for the Units: The price per Unit paid by investors
Schedule 3 - 1
SCHEDULE 4
PERSONS DELIVERING LOCK-UP AGREEMENTS
PERSONS DELIVERING LOCK-UP AGREEMENTS
Directors:
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxxxx
J. Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxx III
X. Xxxx Xxxxxx
X. X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx
Xxx X. Xxxxxxxx, Xx.
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxxxx
J. Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxx III
X. Xxxx Xxxxxx
X. X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx
Xxx X. Xxxxxxxx, Xx.
Officers:
Xxxxxx X. Xxxxxxxxx, Xx.
Xxxx Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxxxx Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxx, Xx.
Xxxx Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxxxx Xxxxxx
Xxxxx X. Xxxxxxx
Unitholders:
Western Pocahontas Properties Limited Partnership
Great Northern Properties Partnership
New Gauley Coal Corporation
Western Pocahontas Properties Limited Partnership
Great Northern Properties Partnership
New Gauley Coal Corporation
Schedule 4 - 1
EXHIBIT A
FORM OF LOCK-UP LETTER AGREEMENT
Xxxxxx Xxxxxxx & Co. Incorporated
As Representative of the several underwriters named
in Schedule 1 attached to the Underwriting Agreement
As Representative of the several underwriters named
in Schedule 1 attached to the Underwriting Agreement
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The undersigned understands that you and certain other firms (the “Underwriters”)
propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Natural
Resource Partners L.P., a Delaware limited partnership (the “Partnership”), and the other
parties named therein (collectively, the “Partnership Parties”), providing for the purchase
by the Underwriters of common units representing limited partner interests (the “Common
Units”) in the Partnership from Adena Minerals, LLC, a Delaware limited liability company (the
“Selling Unitholder”), and that the Underwriters propose to reoffer the Common Units to the
public (the “Offering”). Capitalized terms used but not defined herein have the meanings
given them in the Underwriting Agreement.
In consideration of the execution of the Underwriting Agreement by the Underwriters, and for
other good and valuable consideration, the undersigned hereby irrevocably agrees that, without the
prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated, on behalf of the Underwriters, the
undersigned will not, directly or indirectly, (1) offer for sale, sell, pledge, or otherwise
transfer or dispose of (or enter into any transaction or device that is designed to, or could be
expected to, result in the disposition by any person at any time in the future of) any Common Units
(including, without limitation, Common Units that may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the Securities and Exchange Commission
and Common Units that may be issued upon exercise of any options or warrants) or securities
convertible into or exchangeable for Common Units owned by the undersigned on the date of the
execution of this Agreement or on the date of the completion of the Offering, or (2) enter into any
swap or other derivatives transaction that transfers to another, in whole or in part, any of the
economic benefits or risks of ownership of such Common Units or securities convertible into or
exchangeable for Common Units, whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Common Units or other securities, in cash or
otherwise, (3) make any demand for or exercise any right to file or cause to be filed a
registration statement, including any amendments thereto, to register any Common Units or
securities convertible, exercisable or exchangeable into Common Units or any other securities of
the Partnership or (4) publicly disclose the intention to do any of the foregoing, in each case,
for a period of sixty (60) days from the date of the final prospectus relating to the Offering
(such sixty-day period, the “Lock-Up Period”). The foregoing sentence shall not apply to
bona fide gifts, sales or other dispositions of Common Units, in each case that are made
exclusively between and among the undersigned or members of the undersigned’s family, or affiliates
of the undersigned, including its partners (if a partnership) or members (if a
Exhibit A - 1
limited liability company); provided that it shall be a condition to any such transfer that
(i) the transferee/donee agrees to be bound by the terms of this Lock-up Letter Agreement
(including, without limitation, the restrictions set forth in the preceding sentence) to the same
extent as if the transferee/donee were a party hereto, (ii) no filing by any party (donor, donee,
transferor or transferee) under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), shall be required or shall be voluntarily made in connection with such transfer or
distribution (other than a filing on a Form 5 made after the expiration of the Lock-Up Period),
(iii) each party (donor, donee, transferor or transferee) shall not be required by law (including
without limitation the disclosure requirements of the Securities Act of 1933, as amended, and the
Exchange Act) to make, and shall agree to not voluntarily make, any public announcement of the
transfer or disposition, and (iv) the undersigned notifies Xxxxxx Xxxxxxx & Co. Incorporated at
least two business days prior to the proposed transfer or disposition.
In furtherance of the foregoing, the Partnership and its transfer agent are hereby authorized
to decline to make any transfer of securities if such transfer would constitute a violation or
breach of this Lock-Up Letter Agreement.
It is understood that, if the Selling Unitholder notifies the Underwriters that they do not
intend to proceed with the Offering, if the Underwriting Agreement does not become effective, or if
the Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Units, the undersigned shall be
released from its obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Selling Unitholder and the Underwriters will proceed with
the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of factors, including market
conditions. Any Offering will only be made pursuant to an Underwriting Agreement, the terms of
which are subject to negotiation between the Partnership Parties and the Underwriters.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will
execute any additional documents necessary in connection with the enforcement hereof. Any
obligations of the undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
| Very truly yours, |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Dated: March ___, 2011
Exhibit A - 2
EXHIBIT B
FORM OF OPINION OF XXXXXX & XXXXXX L.L.P.
(i) 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 and to
conduct its business, 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 Pricing
Disclosure Package and the Prospectus.
(ii) Each of the Managing General Partner and the Operating Company has been duly
formed, and each of the Managing General Partner, the Operating Company and the Operating
Subsidiaries 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 conduct its business and, in the case of the Managing General
Partner, to act as a general partner of the General Partner, in all material respects as
described in the Pricing Disclosure Package and the Prospectus.
(iii) 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 (except restrictions
on transferability contained in the Partnership Agreement) (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 as of a recent date or (ii) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the Delaware LP Act.
(iv) As of the date hereof, the issued and outstanding limited partner interests of the
Partnership consist of 106,027,836 Common Units. All outstanding Common Units 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 non-assessability may be
affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
(v) The [Firm/Option] Units to be offered and sold to the Underwriters by the Selling
Unitholder pursuant to this Agreement 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 Sections 17-303, 17-607
and 17-804 of the Delaware LP Act and otherwise described in the Base Prospectus under the
caption “Description of Our Units — Limited Liability”).
Exhibit B-1
(vi) RCM LLC owns 100% of the issued and outstanding membership interests 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 are fully paid (to
the extent required under the Managing General Partner LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Sections 18-607 and 18-804 of the
Delaware LLC Act) and RCM LLC owns such membership interests free and clear of all Liens
(except restrictions on transferability contained in the Organizational Documents of the
Managing General Partner) (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming RCM LLC as debtor is on file with the office
of the Secretary of State of the State of Delaware as of a recent date or (ii) otherwise
known to such counsel, without independent investigation, other than those created or
arising under the Delaware LLC Act.
(vii) 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 (except restrictions on transferability contained in the
Organizational Documents of the General Partner) (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 as of a recent date or (ii) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the Delaware LP Act. Adena
Minerals, WPP, Great Northern, New Gauley Coal and NRP Investment own all of the limited
partner interests 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 is fully paid (to the extent required under the General Partner Partnership Agreement)
and nonassessable (except as such nonassessability may be affected by Sections 17-303,
17-607 and 17-804 of the Delaware LP Act); and Adena Minerals, WPP, Great Northern, New
Gauley Coal and NRP Investment own such limited partner interests free and clear of all
Liens (except restrictions on transferability contained in the Organizational Documents of
the Managing General Partner) (i) in respect of which a financing statement under the
Uniform Commercial Code of the State of Delaware naming Adena Minerals, WPP, Great Northern
or NRP Investment as debtor is on file in the office of the Secretary of State of the State
of Delaware as of a recent date, or (ii) otherwise known to such counsel, without
independent investigation, other than, in the case of the interests owned by WPP, a Lien in
favor of The Travelers Insurance Company, those created by or arising under the Delaware LP
Act.
(viii) The Partnership owns 100% of the issued and outstanding membership interests in
the Operating Company; such membership interests have been duly authorized and validly
issued in accordance with the Operating Company LLC Agreement and are fully paid (to the
extent required under the Operating Company LLC Agreement) and nonassessable (except as such
nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and
the Partnership owns such
Exhibit B-2
membership interest free and clear of all Liens (except restrictions on transferability
contained in the Organizational Documents of the Operating Company) (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 as of a recent date or (ii) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the Delaware LLC Act and those
arising in connection with the Credit Facility.
(ix) Except as described in the Pricing Disclosure Package and the Prospectus, there
are no preemptive rights or other rights to subscribe for or to purchase (i) any partnership
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 or any other agreement or instrument
filed or incorporated by reference as an exhibit to the Registration Statement. Except as
described in the Pricing Disclosure Package and the Prospectus, there are no restrictions
upon the voting or transfer of any partnership interests in the Partnership contained in the
Partnership Agreement, or any other agreement or instrument filed or incorporated by
reference as an exhibit to the Registration Statement. To such counsel’s knowledge, 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 securities of the Partnership or any of its subsidiaries or the inclusion of any such
securities in the offering contemplated by this Agreement, other than as provided in the
Pricing Disclosure Package, the Prospectus and the Partnership Agreement, which have been
waived, if required, with respect to this offering. To such counsel’s knowledge an except as
provided in the Pricing Disclosure Package, there are no outstanding options or warrants to
purchase (A) any Common Units or other partnership interests in the Partnership or (B) any
membership interests in the Operating Company or the Operating Subsidiaries.
(x) Each of the NRP Parties has all requisite limited partnership or limited liability
company, as applicable, power and authority to execute and deliver this Agreement and to
perform its respective obligations hereunder. All partnership and limited liability company
action, as the case may be, required to be taken by each of the NRP Parties or any of their
partners or members pursuant to the Delaware LP Act or the Delaware LLC Act, respectively,
for the execution and delivery by each such NRP Party of this Agreement and the consummation
of the transactions contemplated by this Agreement have been validly taken.
(xi) None of the offering and sale of the Units by the Selling Unitholder, the
execution, delivery and performance of this Agreement by the NRP Parties, or the
consummation of the transactions contemplated hereby (i) constitutes or will constitute a
violation of their respective Organizational Documents or (ii) violates or will violate the
Delaware LP Act, the Delaware LLC Act, federal law or the laws of the New York, in the case
of clause (ii), which violations would, individually or in the aggregate, have a
Material Adverse Effect or would materially impair the ability of any of the NRP Parties to
perform their obligations under this Agreement.
Exhibit B-3
(xii) No permit, consent, approval, authorization, order, registration, filing or
qualification (“consent”) under the Delaware LP Act, the Delaware LLC Act or federal
law is required for the (i) offering and sale of the Units by the Selling Unitholder, (ii)
the execution, delivery and performance of this Agreement by the NRP Parties or (iii) the
consummation by the NRP Parties of the transactions contemplated by this Agreement, except
for such consents (x) required under the Securities Act and state securities or “Blue Sky”
laws, (y) such filings required by the Exchange Act or (z) that, if not obtained, would not,
individually or in the aggregate, have a Material Adverse Effect, as to which such counsel
need not express any opinion.
(xiii) The statements under the captions “Cash Distributions,” “Description of Our
Common Units,” “The Partnership Agreement” and “Investment in Natural Resource Partners L.P.
by Employee Benefit Plans” in each of the Pricing Disclosure Package and the Prospectus,
insofar as they purport to summarize certain provisions of documents referred to therein or
refer to statements of law or legal conclusions, accurately summarize the matters referred
to therein in all material respects, subject to the qualifications and assumptions therein,
and the Units conform in all material respects to the description set forth under the
captions “Summary — The Offering,” “Cash Distributions” and “Description of Our Units” in
each of the Pricing Disclosure Package and the Prospectus.
(xiv) The opinion of Xxxxxx & Xxxxxx L.L.P. that is filed as Exhibit 8.1 to the Current
Report on Form 8-K filed with the Commission on March __, 2011 is confirmed and the
Underwriters may rely upon such opinion as if it were addressed to them.
(xv) Post-Effective Amendment No.1 to the Registration Statement became effective upon
the filing thereof under the Securities Act on March 19, 2010; 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 the
Commission; and any required filing of any Preliminary Prospectus and the Prospectus (or any
supplement thereto) pursuant to Rule 424(b) and of any Issuer Free Writing Prospectus
pursuant to Rule 433 has been made in the manner and within the time period required by such
Rules.
(xvi) The Registration Statement, as of the latest Effective Date, the Pricing
Disclosure Package, as of the Applicable Time, and the Prospectus, as of its date (except
for the financial statements and the notes and the schedules thereto, and the other
financial and accounting data and reserve information included in the Registration
Statement, the Pricing Disclosure Package or the Prospectus and the Trustee statements of
eligibility on Form T-1, as to which such counsel need not express any opinion) comply as to
form in all material respects with the requirements of the Securities Act and the Rules and
Regulations.
(xvii) Neither the Partnership nor the Operating Company is, and after giving effect to
the offering and sale of the [Firm/Option] Units as described in the Prospectus will be, an
“investment company” as such term is defined in the Investment Company Act of 1940, as
amended.
Exhibit B-4
(xviii) The Partnership Agreement has been duly authorized, validly executed and
delivered by the General Partner and is a valid and legally binding agreement of the General
Partner, enforceable against the General Partner in accordance with its terms; provided,
that, the enforceability thereof may be limited by (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 contribution and an
implied covenant of good faith and fair dealing.
In addition, such counsel shall state that they have participated in conferences with officers
and other representatives of the NRP Parties, the Selling Unitholder, the independent public
accountants of the Partnership and your representatives, at which the contents of the Registration
Statement, the Pricing Disclosure Package 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, the Pricing Disclosure Package and the Prospectus (except to the extent
specified in paragraphs (xii), (xiii) and (xv) of the foregoing opinions),
based on the foregoing, 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, (ii) the other
financial and related statistical information included therein and (iii) the reserve reports and
other reserve information included therein, as to which such counsel need not express an opinion),
as of the latest 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, the Pricing Disclosure Package (other than (i) the financial statements included
therein, including the notes and schedules thereto and the auditors’ reports thereon, (ii) the
other financial and related statistical information included therein and (iii) the reserve report
and other reserve information included therein, and (iv) the Trustee statements of eligibility on
Form T-1, as to which such counsel need not express an opinion), as of the Applicable Time,
contained an untrue statement of material fact or omitted 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, or that the Prospectus (other than (i) the financial statements included therein,
including the notes and schedules thereto and the auditors’ reports thereon, (ii) the other
financial and related statistical information included therein, (iii) the reserve report and other
reserve information included therein, and (iv) the Trustee statements of eligibility on Form T-1,
as to which such counsel need not express an opinion), as of its date and the Closing Date or
Option Closing Date, as applicable, 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, without independent investigation or
verification, with respect to matters of fact upon the representations of the Partnership contained
in this Agreement, certificates of officers and employees of the NRP Parties 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) assume that each
Exhibit B-5
certificate from government officials reviewed by such counsel is accurate, (D) state that
their opinion is limited to federal laws of the United States, the Delaware General Corporation
Law, the Delaware LP Act, the Delaware LLC Act and the New York Uniform Commercial Code and the
laws of the State of Texas, (E) with respect to the opinions expressed in paragraphs (iii),
(iv) and (vi) through (viii) above, state that they have relied on reports, dated as of recent
dates, prepared by CT Corporation, purporting to describe all financing statements on file as of
the dates thereof in the office of the Secretary of State of the State of Delaware, naming the
Managing General Partner, the General Partner, the Partnership, the Operating Company, Adena
Minerals, WPP, Great Northern, New Gauley, RCM LLC or NRP Investment, or any of them, as debtors,
(F) state that they have not expressed an opinion respecting any state securities or state or
federal anti-fraud laws, and (G) state that they have not expressed any opinion with respect to (i)
any permits to own or operate any real or personal property or (ii) state or local taxes or tax
statutes to which any of the limited partners of the Partnership or any of the NRP Parties may be
subject.
Exhibit B-6
EXHIBIT C
FORM OF OPINION OF XXXXX X. XXXXX
(i) This Agreement has been duly authorized, validly executed and delivered by each of
the NRP Parties.
(ii) Each of the General Partner Partnership Agreement, the Managing General Partner
LLC Agreement, the Operating Company LLC Agreement and the Operating Subsidiaries LLC
Agreements has been duly authorized, validly executed and delivered by the parties thereto
and is a valid and legally binding agreement, enforceable against the parties thereto in
accordance with its terms; provided, that the enforceability thereof may be limited by (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 contribution and an implied covenant of good faith and fair dealing.
(iii) Except as described in the Pricing Disclosure Package and 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 partnership 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
other instrument known to such counsel to which any NRP Party is a party or by which any of
them may be bound (other than Organizational Documents and any other agreement or instrument
filed or incorporated by reference as an exhibit to the Registration Statement).
(iv) None of the offering and sale of the Units by the Selling Unitholder, the
execution, delivery and performance of this Agreement by the NRP Parties, or the
consummation of the transactions contemplated hereby (i) conflicts or will conflict with or
constitutes or will constitute a breach or violation of, or a default under (or an event
that, with notice or lapse of time or both, would constitute such a default) of any
agreement, lease or instrument (including any agreements incorporated by reference in, or
filed as an exhibit to, the Registration Statement and any credit agreements or other
material agreements) known to such counsel to which any member of the Partnership Group is
party or by which any of their properties may be bound; (ii) violates or will violate any
order, judgment, decree or injunction of any court or government agency or body known to
such counsel directed to any member of the Partnership Group or any of their properties in a
proceeding to which any of them or their properties is a party; or (iii) results or will
result in the creation of or imposition of any lien, charge or encumbrance upon any property
or assets of any member of the Partnership Group, which conflicts, breaches, violations or
defaults would, in the case of clauses (i), (ii) and (iii), individually or in the
aggregate, have a Material Adverse Effect or would materially impair the ability of any of
the NRP Parties to perform its obligations under this Agreement.
Exhibit C-1
(v) To the knowledge of such counsel, (i) there are no legal or governmental
proceedings pending or threatened against any member of the Partnership Group or to which
any member of the Partnership Group is a party or to which any of their respective
properties is subject that are required to be described in the Final 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 Pricing Disclosure Package or the
Prospectus or to be filed as exhibits to the Registration Statement that are not described
or filed as required by the Securities Act.
In addition, such counsel shall state that he has participated in conferences with officers
and other representatives of the NRP Parties, the Selling Unitholder, the independent public
accountants of the Partnership and the Underwriters, at which the contents of the Registration
Statement, the Pricing Disclosure Package 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, the Pricing Disclosure Package and the Prospectus, 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, (ii) the other financial and related statistical information
included therein and (iii) the reserve report and the other reserve information included therein,
as to which such counsel need not express an opinion), as of the most recent 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, the Pricing Disclosure
Package (other than (i) the financial statements included therein, including the notes and
schedules thereto and the auditors’ reports thereon, (ii) the other financial and related
statistical information included therein and (iii) the reserve report and other reserve information
included therein, as to which such counsel need not express an opinion), as of the Applicable Time,
contained an untrue statement of material fact or omitted 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, or the Final Prospectus (other than (i) the financial statements included therein,
including the notes and schedules thereto and the auditors’ reports thereon, (ii) the other
financial and related statistical information included therein and (iii) the reserve report and
other reserve information included therein, as to which such counsel need not express an opinion),
as of its date and the Closing Date or Option Closing Date, as applicable, 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 Parties 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, the Delaware LP Act, the Delaware LLC Act, the Delaware General Corporation Law and the laws
of the State of Texas, (D) state that such counsel expresses no opinion with respect to state or
local taxes or tax statutes and (E) with respect to the opinions expressed in paragraphs (i)
and (ii) above as to the due qualification or registration as a foreign
Exhibit C-2
limited partnership or limited liability company, as the case may be, of certain of the NRP
Parties listed on Annex I to such counsel’s opinion, state that such opinions are based on
certificates of foreign qualification or registration provided by the Secretaries of State of such
states.
Exhibit C-3
EXHIBIT D
FORM OF OPINION OF SELLING UNITHOLDER COUNSEL
(i) The Selling Unitholder is validly existing and in good standing as a limited
liability company under the laws of the State of Delaware and has the full limited liability
company power and authority necessary to own or hold its properties and assets and to
conduct the businesses in which it is engaged.
(ii) The Selling Unitholder has all requisite power and authority to sell and deliver
the [Firm/Option] Units, in accordance with and upon the terms and conditions set forth in
the Underwriting Agreement, the Partnership Agreement, the Pricing Disclosure Package and
the Prospectus. All limited liability company action required to be taken by the Selling
Unitholder or any of its members for the sale and delivery of the [Firm/Option] Units, the
execution and delivery of the Underwriting Agreement and the consummation of the
transactions contemplated by the Underwriting Agreement has been validly taken.
(iii) The Underwriting Agreement has been duly and validly authorized, executed and
delivered by the Selling Unitholder.
(iv) Immediately prior to the Closing Date, the Selling Unitholder was the sole
registered owner of the [Firm/Option] Units, free and clear of all Liens (except (a)
restrictions on transferability contained in the Partnership Agreement, as described in the
Pricing Disclosure Package or created or arising under the Delaware LP Act, or (b) Liens to
be released in connection with the transactions contemplated by the Underwriting Agreement)
(i) in respect of which a financing statement under the Uniform Commercial Code of the State
of Delaware naming the Selling Unitholder as debtor is on file with the Secretary of State
of the State of Delaware or (ii) otherwise known to such counsel, without independent
investigation.
(v) Upon the payment for the [Firm/Option] Units to be sold by the Selling Unitholder,
the delivery of such [Firm/Option] Units, as directed by the Underwriters, to Cede or such
other nominee as may be designated by DTC, the registration of such [Firm/Option] Units in
the name of Cede or such other nominee and the crediting of such [Firm/Option] Units on the
books of DTC to “securities accounts” (within the meaning of Section 8-501(a) of the UCC) of
the Underwriters (assuming that neither DTC nor any Underwriter has “notice of an adverse
claim” (within the meaning of Section 8-105 of the UCC) to such [Firm/Option] Units) (i) the
Underwriters will acquire a “security entitlement” (within the meaning of Section
8-102(a)(17) of the UCC) in respect of such [Firm/Option] Units and (ii) no action based on
any “adverse claim” (within the meaning of Section 8-102(a)(1) of the UCC) to such
[Firm/Option] Units may be asserted against the Underwriters with respect to such “security
entitlement.”
(vi) None of the offering and sale of the Units by the Selling Unitholder, the
execution, delivery and performance of the Underwriting Agreement by the Selling Unitholder,
or the consummation of the transactions contemplated thereby (i) constitutes
Exhibit D-1
or will constitute a violation of the certificate of formation or limited liability
company agreement of the Selling Unitholder, (ii) constitutes or will constitute a breach or
violation of or a default under (or an event that, with notice and lapse of time or both,
would constitute such a breach or violation of or default under), any debt instrument or
other material agreement listed on Schedule I or (iii) violates or will violate any
applicable law of the United States of America, the laws of the State of New York or the
Delaware Limited Liability Company Act, excluding in the case of clauses (ii) and (iii) any
such breaches, violations and defaults that would not have a Material Adverse Effect.
(vii) No permit, consent, approval, authorization, order, registration, filing or
qualification (“consent”) under any applicable law of the United States of America,
the laws of the State of New York or the Delaware Limited Liability Company Act is required
for the (i) offering and sale of the Units by the Selling Unitholder, (ii) the execution,
delivery and performance of this Agreement by the Selling Unitholder or (iii) the
consummation by the Selling Unitholder of the transactions contemplated by this Agreement,
except for such consents (x) required under the Securities Act and state securities or “Blue
Sky” laws or (y) that, if not obtained, would not, individually or in the aggregate, have a
Material Adverse Effect, as to which such counsel need not express any opinion.
Exhibit D-2
