EXHIBIT 3
EXECUTION COPY
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PURCHASE AND SALE AGREEMENT
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By and Among
ARK LAND COMPANY
ARCH COAL, INC.
and
FRC-WPP NRP INVESTMENT L.P.
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Covering the Acquisition of
4,796,920 SUBORDINATED UNITS
of
NATURAL RESOURCE PARTNERS L.P.
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December 22, 2003
TABLE OF CONTENTS
1. Definitions..............................................................................................1
2. The Transactions.........................................................................................4
(a) Sale of the Seller's Subordinated Units...........................................................4
(b) Consideration.....................................................................................4
(c) The Closing.......................................................................................4
(d) Actions at the Closing............................................................................4
3. Representations and Warranties Concerning the Transaction................................................4
(a) Representations and Warranties Concerning Each of the Seller and the Parent.......................4
(b) Representations and Warranties Concerning the Buyer...............................................6
4. Remedies for Breaches of this Agreement..................................................................7
(a) Survival of Representations and Warranties........................................................7
(b) Indemnification Provisions for Benefit of the Buyer...............................................7
(c) Indemnification Provisions for Benefit of the Seller..............................................8
(d) Matters Involving Third Parties...................................................................9
(e) Determination of Amount of Adverse Consequences...................................................9
(f) Compliance with Express Negligence Rule..........................................................10
(g) Tax Treatment of Indemnity Payments..............................................................10
5. Miscellaneous...........................................................................................10
(a) Disclosure.......................................................................................10
(b) No Third-Party Beneficiaries.....................................................................10
(c) Succession and Assignment........................................................................10
(d) Counterparts.....................................................................................10
(e) Notices..........................................................................................11
(f) Governing Law....................................................................................11
(g) Remedy and Waiver................................................................................12
(h) Further Assurances...............................................................................12
(i) Amendments and Waivers...........................................................................12
(j) Severability.....................................................................................12
(k) Transaction Expenses.............................................................................12
(l) Construction.....................................................................................12
(m) Entire Agreement.................................................................................13
EXHIBITS
Exhibit A: Secretary's Certificate of Seller
Exhibit B: Secretary's Certificate of Parent
Exhibit C: Certificate of Members of General Partner of Buyer
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PURCHASE AND SALE AGREEMENT
THIS
PURCHASE AND SALE AGREEMENT (this "Agreement") dated as of
December 22, 2003 is by and among Ark Land Company, a
Delaware corporation (the
"Seller"), Arch Coal, Inc., a
Delaware corporation and sole shareholder of
Seller (the "Parent"), and FRC-WPP NRP Investment L.P., a
Delaware limited
partnership (the "Buyer"). The Seller, the Parent and the Buyer are sometimes
referred to collectively herein as the "Parties" and individually as a "Party."
RECITALS
WHEREAS, the Seller entered into the First Amended and Restated
Partnership Agreement of Natural Resource Partners L.P., a
Delaware Limited
Partnership ("NRP"), dated as of October 17, 2002 and as amended to date (the
"MLP Agreement"), pursuant to which the Seller became a limited partner of NRP
and the owner of, among other interests, 4,796,920 Subordinated Units (as
defined in the MLP Agreement) of NRP (the "Seller's Subordinated Units"), as
evidenced by a Certificate Evidencing Subordinated Units Representing Limited
Partner Interests in Natural Resource Partners L.P., Numbered Certificate No. 4
(the "Certificate"); and
WHEREAS, subject to the terms and conditions set forth in this
Agreement, the Seller desires to sell to the Buyer, and the Buyer desires to
purchase from the Seller, the Seller's Subordinated Units.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements herein contained, the
Parties hereby agree as follows:
AGREEMENT
1. Definitions. Unless otherwise provided for herein, the following
terms have the following meanings:
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, damages, demands, injunctions,
judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs,
amounts paid in settlement, liabilities, obligations, Taxes, Encumbrances,
losses, expenses, payments and fees of every type and nature whatsoever, legal
or equitable, or any item similar or related to the foregoing, including the
reasonable cost of the investigation and preparation of defense, court costs and
attorneys' fees and expenses, but excluding any punitive, exemplary, special,
indirect, remote, speculative or consequential damages (including any damages on
account of lost profit or opportunities).
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"Agreement" has the meaning set forth in the preface.
"Buyer" has the meaning set forth in the preface.
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"Buyer Indemnitees" means, collectively, the Buyer and its Affiliates
and each of their respective officers (or natural persons performing similar
functions), directors (or natural persons performing similar functions),
employees, agents and representatives to the extent acting in such capacity.
"Certificate" has the meaning set forth in the Recitals.
"Closing" has the meaning set forth in Section 2(c).
"Closing Date" has the meaning set forth in Section 2(c).
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Law.
"Encumbrance" means any mortgage, pledge, lien, encumbrance, charge or
security interest.
"Governmental Authority" means any court, tribunal, arbitrator,
authority, agency, commission, department, board, bureau, official, or other
regulatory, administrative or governmental authority or instrumentality of the
United States, any foreign country, or domestic or foreign state, county, city,
local or other political subdivision.
"GP" means NRP (GP) LP, a
Delaware limited partnership and the general
partner of NRP.
"GP LLC Purchase Agreement" means that certain purchase agreement by
and among Xxxxxxxxx Coal Management LLC, a
Delaware limited liability company,
Seller and the Parent, dated December 22, 2003.
"Indemnified Party" has the meaning set forth in Section 4(d).
"Indemnifying Party" has the meaning set forth in Section 4(d).
"Laws" means any applicable federal, state, municipal, local, foreign,
international, multinational or administrative law, constitution, statute, code,
ordinance, regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any kind or nature whatsoever, including any
public policy, judgment or principle of common law, of any applicable
Governmental Authority.
"Limited Partner" has the meaning set forth in the MLP Agreement.
"Limited Partnership Interest" means the limited partnership interest
of a Limited Partner in NRP, including rights to distributions (liquidating or
otherwise), allocations, information, and to consent or approve (subject to the
limitations set forth in the MLP Agreement).
"MLP Agreement" has the meaning set forth in the Recitals.
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"NRP (GP) LP Purchase Agreement" means that certain purchase agreement
by and among NRP Investment L.P. a
Delaware limited partnership, the Seller and
the Parent, dated December 22, 2003.
"Organizational Documents" means the articles of incorporation,
certificate of incorporation, charter, bylaws, articles or certificate of
formation, regulations, operating agreement, limited liability company
agreement, certificate of limited partnership, partnership agreement, and all
other similar documents, instruments or certificates executed, adopted, or filed
in connection with the creation, formation, or organization of a Person,
including any amendments thereto.
"Parent" has the meaning set forth in the preface.
"Party" and "Parties" have the meanings set forth in the preface.
"Person" means an individual or entity, including any partnership,
corporation, association, joint stock company, trust, joint venture, limited
liability company, unincorporated organization, or Governmental Authority (or
any department, agency or political subdivision thereof) or any other legal
entity.
"Purchase Price" means $111,000,000.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Seller" has the meaning set forth in the preface.
"Seller Indemnitees" means, collectively, the Seller and each of its
respective Affiliates and each of its respective officers (or Persons performing
similar functions), directors (or Persons performing similar functions),
employees, agents, and representatives.
"Tax" or "Taxes" means any federal, state, local, or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under Code
Section 59A), custom duties, capital stock, franchise, profits, withholding,
social security (or similar excises), unemployment, disability, ad valorem, real
property, personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated, or other tax, duty, excise,
assessment, fee or other governmental charge of any kind whatsoever, including
any interest, penalty or addition thereto, whether disputed or not.
"Third-Party Claim" has the meaning set forth in Section 5(d).
"Transaction Agreements" means this Agreement, the GP LLC Purchase
Agreement, the NRP (GP) LP Purchase Agreement, Amendment No. 1 to LP Agreement,
Amendment No. 1 to LLC Agreement, the Agreement for Appointment of Seller's
Directors, and all other agreements, documents, certificates or instruments
executed and delivered in connection with the transactions contemplated herein.
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"Transfer Application" has the meaning set forth in the MLP Agreement.
2. The Transactions.
(a) Sale of the Seller's Subordinated Units. Subject to the
terms and conditions of this Agreement, the Seller agrees to sell to the Buyer
at the Closing, and the Buyer agrees to purchase from the Seller at the Closing,
all of the Seller's right, title and interest in and to the Seller's
Subordinated Units.
(b) Consideration. Subject to the terms and conditions of this
Agreement and in consideration for the sale of the Seller's Subordinated Units,
the Buyer agrees to pay the Seller the Purchase Price at the Closing in cash
payable by wire transfer to Seller of immediately available federal funds.
(c) The Closing. The closing of the transactions contemplated
by this Agreement (the "Closing") will take place at the offices of the Buyer on
December 22, 2003 (the "Closing Date").
(d) Actions at the Closing. At the Closing,
(i) The GP LLC Purchase Agreement will be executed
simultaneously, and the transactions described therein will
close simultaneously with the transactions described in this
Agreement.
(ii) The NRP (GP) LP Purchase Agreement will be
executed simultaneously, and the transactions described
therein will close simultaneously with the transactions
described in this Agreement.
(iii) Seller will deliver a Secretary's Certificate
substantially in the form of Exhibit A.
(iv) Parent will deliver a Secretary's Certificate
substantially in the form of Exhibit B.
(v) Buyer will deliver a Certificate of Sole Member
of General Partner substantially in the form of Exhibit C.
(vi) Buyer will pay the Seller the Purchase Price in
cash payable by wire transfer to Seller of immediately
available federal funds to an account specified by Seller.
(vii) Seller will deliver the Certificate, and Buyer
will deliver the Certificate, accompanied by a duly executed
Transfer Application, to the GP.
3. Representations and Warranties Concerning the Transaction.
(a) Representations and Warranties Concerning Each of the
Seller and the Parent. Each of the Seller and the Parent hereby represents and
warrants to the Buyer that:
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(i) Organization and Good Standing. Each of them (x)
is a corporation duly organized, validly existing, and in good
standing under the laws of the State of
Delaware; and (y) is
duly qualified to transact business and is in good standing in
the State of Missouri.
(ii) Authorization of Transaction. Each of them has
full corporate power and authority to execute and deliver each
Transaction Agreement to which it is a party and to perform
its obligations thereunder. Each Transaction Agreement to
which the Seller or the Parent is a party constitutes the
valid and legally binding obligation of the Seller or the
Parent, as applicable, enforceable against Seller or Parent,
as applicable, in accordance with its terms and conditions,
subject, however, to the effects of bankruptcy, insolvency,
reorganization, moratorium or similar Laws affecting
creditors' rights generally, including limiting the right of
specific performance, and to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at Law). Neither the Seller nor the
Parent need give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any
Governmental Authority in order to consummate the transactions
contemplated by this Agreement or any other Transaction
Agreement to which it is a party.
(iii) Title to the Seller's Subordinated Units.
Seller has good, valid and marketable title to the Seller's
Subordinated Units, free and clear of all Encumbrances. Upon
purchase of the Seller's Subordinated Units by Buyer and the
receipt by Seller of the Purchase Price pursuant hereto, good
and valid title to the Seller's Subordinated Units will pass
to Buyer, free and clear of all Encumbrances.
(iv) Noncontravention. Neither the execution and
delivery of any of the Transaction Agreements to which either
the Seller or Parent is a party, nor the consummation of any
of the transactions contemplated thereby, shall (A) violate
any Law to which the Seller or Parent is subject or any
provision of its Organizational Documents or (B) conflict
with, result in a breach of, constitute a default under,
result in the acceleration of, create in any Person the right
to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, indenture, note agreement, loan
agreement, contract, lease, license, instrument, or other
arrangement (x) to which either the Seller or Parent is a
party or by which either of them is bound or (y) to which any
of their assets are subject (or result in the imposition of
any Encumbrance upon any of the Seller's or Parent's assets),
in either case except for such violations, conflicts,
breaches, defaults, accelerations, terminations,
modifications, cancellations, failures to give notice,
Encumbrances or other occurrences that would not have, or
would reasonably be expected not to have, a material adverse
effect on the ability of the Seller or the Parent to
consummate the transactions contemplated by this Agreement or
any other Transaction Agreement to which it is a party.
(v) Brokers' Fees. Neither the Seller nor Parent has
any liability or obligation to pay any fees or commissions to
any broker, finder, or agent with
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respect to the transactions contemplated by this Agreement for
which the Buyer is, or could become, liable or obligated.
(b) Representations and Warranties Concerning the Buyer. The Buyer
hereby represents and warrants to the Seller that:
(i) Organization of the Buyer. The Buyer (x) is a
limited partnership duly organized, validly existing, and in
good standing under the laws of the State of
Delaware; and (y)
is duly qualified to transact business and is in good standing
in the State of Texas.
(ii) Authorization of Transaction. The Buyer has full
limited partnership power and authority to execute and deliver
each Transaction Agreement to which it is a party and to
perform its obligations thereunder. Each Transaction Agreement
to which the Buyer is a party constitutes the valid and
legally binding obligation of the Buyer, enforceable against
it in accordance with its terms and conditions, subject,
however, to the effects of bankruptcy, insolvency,
reorganization, moratorium or similar Laws affecting
creditors' rights generally, including limiting the right of
specific performance, and to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at Law). The Buyer need not give any
notice to, make any filing with, or obtain any authorization,
consent, or approval of any Governmental Authority in order to
consummate the transactions contemplated by this Agreement or
any other Transaction Agreement to which it is a party.
(iii) Noncontravention. Neither the execution and
delivery of any of the Transaction Agreements to which the
Buyer is a party, nor the consummation of any of the
transactions contemplated thereby, shall (A) violate any Law
to which the Buyer is subject or any provision of its
Organizational Documents or (B) conflict with, result in a
breach of, constitute a default under, result in the
acceleration of, create in any Person the right to accelerate,
terminate, modify, or cancel, or require any notice under any
agreement, indenture, note agreement, loan agreement,
contract, lease, license, instrument or other arrangement (x)
to which either the Buyer is a party or by which it is bound
or (y) to which any of the Buyer's assets are subject (or
result in the imposition of any Encumbrance upon any of the
Buyer's assets), in either case except for such violations
that would not have, or would reasonably be expected not to
have, a material adverse effect on the ability of the Buyer to
consummate the transactions contemplated by this Agreement or
any other Transaction Agreement to which it is a party.
(iv) Brokers' Fees. The Buyer does not have any
liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Seller is, or
could become, liable or obligated.
(v) Investment Intent; Investment Experience;
Restricted Securities. In acquiring the Seller's Subordinated
Units, the Buyer is not offering or selling, and
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shall not offer or sell the Seller's Subordinated Units, for
the Seller in connection with any distribution of any of such
Seller's Subordinated Units, and the Buyer does not have a
participation and shall not participate in any such
undertaking or in any underwriting of such an undertaking
except in compliance with applicable federal and state
securities laws. The Buyer acknowledges that it is able to
fend for itself, can bear the economic risk of its investment
in the Seller's Subordinated Units, and has such knowledge and
experience in financial and business matters that it is
capable of evaluating the merits and risks of an investment in
all of such Seller's Subordinated Units. The Buyer understands
that none of the Seller's Subordinated Units shall have been
registered pursuant to the Securities Act or any applicable
state securities laws, that all of such Seller's Subordinated
Units shall be characterized as "restricted securities" under
federal securities laws and that under such laws and
applicable regulations none of such Seller's Subordinated
Units can be sold or otherwise disposed of without
registration under the Securities Act or an exemption
therefrom.
4. Remedies for Breaches of this Agreement.
(a) Survival of Representations and Warranties. (i) The
representations and warranties of the Seller and the Parent contained in
Sections 3(a)(i) and 3(a)(iv) shall survive the Closing hereunder until the date
that is 2 years after the Closing Date. The representations and warranties of
the Seller and the Parent contained in Sections 3(a)(ii), 3(a)(iii) and 3(a)(v)
shall survive the Closing indefinitely. The representations and warranties of
the Buyer contained in Sections 3(b)(i) and 3(b)(iii) shall survive the Closing
for a period of 2 years after the Closing Date. The representations and
warranties of the Buyer contained in Sections 3(b)(ii) and 3(b)(iv) shall
survive the Closing indefinitely. The covenants and obligations contained in
Section 2 and all other covenants and obligations contained in this Agreement
shall survive the Closing indefinitely.
(b) Indemnification Provisions for Benefit of the Buyer.
(i) Representations and Warranties. In the event: (x)
any of the representations or warranties of the Seller or the
Parent is breached; (y) there is an applicable, unexpired
survival period pursuant to Section 4(a); and (z) the Buyer
makes a written claim for indemnification against the Seller
and/or the Parent pursuant to Section 5(e) within such
survival period, then the Seller and Parent agree to release,
indemnify and hold harmless the Buyer Indemnitees from and
against any Adverse Consequences suffered by the Buyer
Indemnitees by reason of all such breaches; provided, that
neither the Seller nor the Parent shall have any obligation to
indemnify any Buyer Indemnitees from and against any such
Adverse Consequences to the extent the Adverse Consequences
the Buyer Indemnitees, in the aggregate, have suffered by
reason of all such breaches exceeds an aggregate ceiling
amount equal to 100% of the Purchase Price (after which point
the Seller and the Parent shall have no obligation to
indemnity the Buyer Indemnitees from and against further such
Adverse Consequences). Any due diligence or other
investigation by or on behalf of the Buyer shall not affect
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its reliance or right to rely on any representation or
warranty made by the Seller or Parent in this Agreement.
(ii) Covenants and Obligations. In the event: (x) any
of the covenants or obligations of the Seller in Section 2 or
any other covenants or obligations of the Seller in this
Agreement are breached; and (y) the Buyer makes a written
claim for indemnification against the Seller pursuant to
Section 5(e), then the Seller and Parent agree to release,
indemnify and hold harmless the Buyer Indemnitees from and
against any Adverse Consequences suffered by the Buyer
Indemnitees.
(c) Indemnification Provisions for Benefit of the Seller.
(i) Representations and Warranties. In the event: (x)
any of the representations or warranties of the Buyer is
breached; (y) there is an applicable survival period pursuant
to Section 4(a); and (z) the Seller makes a written claim for
indemnification against the Buyer pursuant to Section 5(e)
within such survival period, then the Buyer agrees to release,
indemnify and hold harmless the Seller Indemnitees from and
against any Adverse Consequences suffered by such Seller
Indemnitees by reason of all such breaches; provided, that
Buyer shall not have any obligation to indemnify any Seller
Indemnitees from and against any such Adverse Consequences to
the extent the Adverse Consequences the Seller Indemnitees, in
the aggregate, have suffered by reason of all such breaches
exceeds an aggregate ceiling amount equal to 100% of the
Purchase Price (after which point the Buyer shall have no
obligation to indemnity the Seller Indemnitees from and
against further such Adverse Consequences). Any due diligence
or other investigation by or on behalf of the Seller or the
Parent shall not affect their reliance or right to rely on any
representation or warranty made by the Buyer in this
Agreement.
(ii) Covenants and Obligations. In the event: (x) any
of the covenants or obligations of the Buyer in Section 2 or
any other covenants or obligations of the Buyer in this
Agreement are breached; and (y) the Seller makes a written
claim for indemnification against the Buyer pursuant to
Section 5(e) within such survival period, then the Buyer
agrees to release, indemnify and hold harmless the Seller
Indemnitees from and against any Adverse Consequences suffered
by the Seller Indemnitees.
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(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a
"Third-Party Claim") that may give rise to a claim for
indemnification against any other Party (the "Indemnifying
Party") under this Section 4, then the Indemnified Party shall
promptly notify the Indemnifying Party thereof in writing.
Failure to give prompt notice of a Third-Party Claim hereunder
shall not affect the Indemnifying Party's obligations, except
to the extent that the Indemnifying Party is materially
prejudiced by such failure to give prompt notice.
(ii) The Indemnifying Party shall have the right to
assume and thereafter conduct the defense of the Third-Party
Claim with counsel of its choice reasonably satisfactory to
the Indemnified Party; provided, however, that the Indemnified
Party shall have the right to participate in any matter
through counsel of its own choosing at its own expense;
provided further, however, that the Indemnifying Party shall
pay the fees and expenses of separate counsel for the
Indemnified Party if (A) the Indemnifying Party has agreed to
pay such fees and expenses or (B) the named parties to any
such action or proceeding (including any impleaded parties)
include both the Indemnified Party and the Indemnifying Party,
and such Indemnified Party shall have been advised by counsel
that the representation of both parties would be inappropriate
due to actual or potential differing interests between them.
(iii) The Indemnifying Party shall not consent to the
entry of any judgment or enter into any settlement with
respect to the Third-Party Claim without the prior written
consent of the Indemnified Party (not to be withheld or
delayed unreasonably) unless the judgment or proposed
settlement involves only the payment of money damages and does
not impose an injunction or other equitable relief upon the
Indemnified Party.
(iv) Unless and until the Indemnifying Party assumes
the defense of the Third-Party Claim as provided in Section
4(d)(ii), the Indemnified Party may defend against the
Third-Party Claim in any manner it reasonably may deem
appropriate.
(v) In no event shall the Indemnified Party consent
to the entry of any judgment or enter into any settlement with
respect to the Third-Party Claim without the prior written
consent of the Indemnifying Party, which consent shall not be
withheld or delayed unreasonably.
(e) Determination of Amount of Adverse Consequences. The
Adverse Consequences giving rise to any indemnification obligation hereunder
shall be limited to the actual loss suffered by the Indemnified Party (i.e.
reduced by any insurance proceeds or other payment or recoupment received,
realized or retained by the Indemnified Party as a result of the events giving
rise to the claim for indemnification net of any expenses related to the receipt
of such proceeds, payment or recoupment, including retrospective premium
adjustments, if any),
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but not reduced by any reduction in Taxes of the Indemnified Party (or the
affiliated group of which it is a member) occasioned by such loss or damage. The
amount of the actual loss and the amount of the indemnity payment shall be
computed by taking into account the timing of the loss or payment, as
applicable, using a 10% interest or discount rate, as appropriate. Upon the
request of the Indemnifying Party, the Indemnified Party shall provide the
Indemnifying Party with information sufficient to allow the Indemnifying Party
to calculate the amount of the indemnity payment in accordance with this Section
4(e).
(f) Compliance with Express Negligence Rule. ALL RELEASES,
DISCLAIMERS, LIMITATIONS ON LIABILITY AND INDEMNITIES IN THIS AGREEMENT,
INCLUDING THOSE IN THIS SECTION 4, SHALL APPLY EVEN IN THE EVENT OF THE SOLE,
JOINT AND/OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OF THE PARTY
WHOSE LIABILITY IS RELEASED, DISCLAIMED, LIMITED OR INDEMNIFIED.
(g) Tax Treatment of Indemnity Payments. All indemnification
payments made under this Agreement, including any payment made under this
Section 4, shall be made in cash and treated as purchase price adjustments for
tax purposes.
5. Miscellaneous
(a) Disclosure. Notwithstanding anything to the contrary in
this Agreement (or any other agreement executed in connection therewith), the
Parties (and each employee, representative or other agent of the Parties) may
disclose to any and all persons, without limitation of any kind, the U.S.
federal income Tax treatment and Tax structure of the transactions contemplated
herein and all materials of any kind (including opinions and other Tax analyses)
that are provided to the Parties relating to such Tax treatment and Tax
structure. For this purpose, "Tax structure" is limited to facts relevant to the
U.S. federal income Tax treatment of such transactions and does not include
information relating to the identity of the Parties, its Affiliates, agents or
advisors. Moreover, notwithstanding any other provision of this Agreement (or
any other agreement executed in connection therewith), there shall be no
limitation on a Party's ability to consult any Tax adviser, whether or not
independent from such Party or its Affiliates, regarding the Tax treatment or
Tax structure of the transactions contemplated by this Agreement.
(b) No Third-Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
(c) Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their respective
successors and assigns. No Party may assign, transfer or otherwise alienate
either this Agreement or any of its rights, interests or obligations hereunder
without the prior written approval of the other Parties.
(d) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
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(e) Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given two business
days after it is sent by registered or certified mail, return receipt requested,
postage prepaid, and addressed to the intended recipient as set forth below:
If to the Seller: Ark Land Company
Xxx XxxxXxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
If to the Parent: Arch Coal, Inc.
Xxx XxxxXxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
If to the Buyer: FRC-WPP NRP Investment L.P.
000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
With a copy to: GP Natural Resource Partners LLC
000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the addresses set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, ordinary mail, or electronic mail). Delivery of written notices shall
be effective (i) upon delivery, if sent by hand delivery, expedited courier or
messenger service (in any such case, with a record of receipt) or by ordinary
mail or (ii) on the next day after the date of dispatch, if sent by telecopy,
cable, facsimile, telegram, or electronic mail. Any Party may change the address
to which notices, requests, demands, claims, and other communications hereunder
are to be delivered by giving the other Party notice in the manner herein set
forth.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF
DELAWARE WITHOUT
GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
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(g) Remedy and Waiver. From and after the Closing, the sole
remedy of a Party in connection with (i) a breach or inaccuracy of the
representations, or breach of warranties, in this Agreement or any certificate
or other document delivered pursuant to this Agreement at Closing, or (ii) any
failure by a Party to perform or observe any term, provision, covenant or
agreement on the part of such Party to be performed or observed under this
Agreement, shall, in each case, be the rights of such Party under Section 4
hereof to indemnification and to being released and held harmless, and, as a
result, each Party hereby waives any claim or cause of action pursuant to common
or statutory law or otherwise (except for fraud) against the other Party arising
from any breach or failure described in (i) or (ii) above. Except for the
representations, warranties and remedies expressly provided for by this
Agreement, the Buyer agrees that the Seller and its Affiliates and
representatives have not made any representation or warranty, and the Seller is
relying on no other representation, warranty or remedy (under contract or law).
(h) Further Assurances. In case at any time after the Closing
any further action is necessary to carry out the purposes of this Agreement,
each of the Parties shall take such further action (including the execution and
delivery of such further instruments and documents) as the other Party
reasonably may request, all at the sole cost and expense of the requesting Party
(unless the requesting Party is entitled to indemnification therefor under
Section 4).
(i) Amendments and Waivers. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and signed by
the Buyer and the Seller. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(j) Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
(k) Transaction Expenses. Each of the Buyer, the Seller and
the Parent shall bear its own costs and expenses (including legal fees and
expenses) incurred in connection with this Agreement and the transactions
contemplated hereby.
(l) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. The Section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement. Any reference to any federal,
state, local, or foreign statute or Law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context requires
otherwise, and shall include any amendment to such Law now or hereinafter in
effect, unless otherwise expressly set forth herein. The word "including" shall
mean including without
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limitation. All personal pronouns used in this Agreement, whether used in the
masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural, and vice versa. All references herein to
Sections or subdivisions thereof shall refer to the corresponding Section or
subdivision thereof of this Agreement unless specific reference is made to such
articles, sections or subdivisions of another document or instrument. Unless
otherwise provided, any reference to any Person in this Agreement shall include
such Person's successors and assigns. The terms "will" and "shall" shall be
interpreted to have the same meaning. The terms "herein," "hereby," "hereunder,"
"hereof," "hereinafter," and other equivalent words refer to this Agreement in
its entirety and not solely to the particular portion of the Agreement in which
such word is used. Each certificate delivered pursuant to this Agreement shall
be deemed a part hereof, and any representation, warranty or covenant herein
referenced or affirmed in such certificate shall be treated as a representation,
warranty or covenant given in the correlated Section hereof on the date of such
certificate. Additionally, any representation, warranty or covenant made in any
such certificate shall be deemed to be made herein.
(m) Entire Agreement. THIS AGREEMENT (INCLUDING THE DOCUMENTS
REFERRED TO HEREIN) CONSTITUTES THE ENTIRE AGREEMENT AMONG THE PARTIES AND
SUPERSEDES ANY PRIOR UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS BY OR AMONG
THE PARTIES, WRITTEN OR ORAL, TO THE EXTENT THEY HAVE RELATED IN ANY WAY TO THE
SUBJECT MATTER HEREOF.
*****
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first set forth in the preamble.
FRC-WPP NRP Investment L.P.
By: FRC-WPP GP LLC
its General Partner
By:
---------------------------------------------
Xxxx X. Xxxxxxx
Manager
ARK LAND COMPANY
By:
---------------------------------------------
Xxxxxx X. XxXxxxx
President
ARCH COAL, INC.
By:
---------------------------------------------
Xxxxx X. Xxxxx
Vice President, Business Development
SIGNATURE PAGE TO THE
PURCHASE AND SALE AGREEMENT
RELATING TO THE SUBORDINATED UNITS
EXHIBIT A
SECRETARY'S CERTIFICATE OF SELLER
EXHIBIT B
SECRETARY'S CERTIFICATE OF PARENT
EXHIBIT C
CERTIFICATE OF MEMBERS
OF
GENERAL PARTNER OF BUYER
