EXHIBIT 10.5
EXECUTION VERSION
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OMNIBUS AGREEMENT
among
ARCH COAL, INC.
ARK LAND COMPANY
WESTERN POCAHONTAS PROPERTIES LIMITED PARTNERSHIP
GREAT NORTHERN PROPERTIES LIMITED PARTNERSHIP
NEW GAULEY COAL CORPORATION
▇▇▇▇▇▇▇▇▇ COAL MANAGEMENT LLC
GP NATURAL RESOURCE PARTNERS LLC
NRP (GP) LP
NATURAL RESOURCE PARTNERS L.P.
and
NRP (OPERATING) LLC
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OMNIBUS AGREEMENT
THIS OMNIBUS AGREEMENT ("Agreement") is entered into on, and effective as
of, the Closing Date (as defined herein) among Arch Coal, Inc., a Delaware
corporation ("Arch"), Ark Land Company, a Delaware corporation ("Ark"), Western
Pocahontas Properties Limited Partnership, a Delaware limited partnership
("WPP"), Great Northern Properties Limited Partnership, a Delaware limited
partnership ("GNP"), New Gauley Coal Corporation, a West Virginia corporation
("NGCC" and, together with WPP and GNP, the "WPP Group"), ▇▇▇▇▇▇▇▇▇ Coal
Management LLC, a Delaware limited liability company ("▇▇▇▇▇▇▇▇▇ Coal
Management"), GP Natural Resource Partners LLC ("GP LLC"), NRP (GP) LP, a
Delaware limited partnership (including any permitted successors and assigns
under the Partnership Agreement (as defined herein), the "General Partner"),
Natural Resource Partners L.P., a Delaware limited partnership (the
"Partnership"), and NRP (Operating) LLC, a Delaware limited liability company
("OLLC"). The above-named entities are sometimes referred to in this Agreement
each as a "Party" and collectively as the "Parties."
R E C I T A L S:
1. The Parties desire by their execution of this Agreement to evidence
their understanding, as more fully set forth in Article II, with respect to
those business opportunities that a Sponsor (as defined herein) will not engage
in for so long as such Sponsor participates in the control of the General
Partner unless the Partnership has declined to engage in any such business
opportunity for its own account.
2. The Parties desire by their execution of this Agreement to evidence
their understanding, as more fully set forth in Article III, with respect to
certain indemnification obligations of the Sponsors in favor of the Partnership
Group (as defined herein).
In consideration of the premises and the covenants, conditions and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS.
(a) As used in this Agreement, the following terms shall have
the respective meanings set forth below:
"Affiliate" is defined in the Partnership Agreement; notwithstanding
the foregoing, "Affiliate" shall also include, with respect to any
Sponsor, any other entity in which the Sponsor owns, through one or more
intermediaries, 50% or more of the then outstanding voting securities or
ownership interests of such entity.
"Assets" means all assets conveyed, contributed, or otherwise
transferred by the Sponsors to the Partnership Group prior to or on the
Closing Date.
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"Closing Date" means the date of the closing of the Partnership's
initial public offering of Common Units.
"Common Units" is defined in the Partnership Agreement.
"Conflicts Committee" is defined in the Partnership Agreement.
"control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a
Person, whether through ownership of voting securities, by contract, or
otherwise.
"Covered Environmental Losses" is defined in Section 3.1.
"Environmental Laws" means all federal, state, and local laws,
statutes, rules, regulations, orders, and ordinances, now or hereafter in
effect, relating to protection of human health and the environment
including, without limitation, the federal Comprehensive Environmental
Response, Compensation, and Liability Act, the Superfund Amendments
Reauthorization Act, the Surface Mining Control and Reclamation Act, the
Mine Health and Safety Acts of 1969 and 1977, the Resource Conservation
and Recovery Act, the Clean Air Act, the Clean Water Act, the Federal
Water Pollution Control Act, the Toxic Substances Control Act, the
Hazardous Materials Transportation Act, the Safe Drinking Water Act, the
Emergency Planning and Community Right-to-Know Act, and other
environmental conservation and protection laws, each as amended from time
to time.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Group Member" is defined in the Partnership Agreement.
"Limited Partner" is defined in the Partnership Agreement.
"Mechanics Lien" means the unperfected lien filed on March 21, 2002
against Ark in the amount of $40,504.40 by Ash Block, Inc.
"Majority Sponsor" means the WPP Group and any Affiliate of the WPP
Group, ▇▇▇▇▇▇▇▇▇ Coal Management or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
"Minority Sponsor" means Arch and Ark.
"Partnership Agreement" means the First Amended and Restated
Agreement of Limited Partnership of Natural Resource Partners L.P., dated
as of the Closing Date, as such agreement is in effect on the Closing
Date, to which reference is hereby made for all purposes of this
Agreement. No amendment or modification to the Partnership Agreement
subsequent to the Closing Date shall be given effect for the purposes of
this Agreement unless consented to by each of the Parties to this
Agreement.
"Partnership Group" is defined in the Partnership Agreement.
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"Person" is defined in the Partnership Agreement.
"Restricted Business" is defined in Section 2.1.
"Second Offer" is defined in Section 2.4(c).
"Sponsor" means any of the Majority Sponsor or the Minority Sponsor,
and "Sponsors" means both the Majority Sponsor and the Minority Sponsor.
"Subsidiary" is defined in the Partnership Agreement.
"Unit" is defined in the Partnership Agreement.
ARTICLE II
BUSINESS OPPORTUNITIES
2.1 RESTRICTED ACTIVITIES
(a) Restricted Businesses. For so long as a Sponsor
participates in the control of the General Partner, and except as
permitted by Section 2.2, each Sponsor and its Affiliates shall be
prohibited from, directly or indirectly, owning, operating or
investing in any business having assets engaged in the following
activities (each, a "Restricted Business"):
(i) owning or entering into leases with a party other
than an Affiliate of a Sponsor of any fee coal reserves within
the United States owned by a Sponsor or its Affiliate; or
(ii) owning or entering into subleases with a party
other than an Affiliate of a Sponsor of any coal reserves
within the United States controlled by a paid-up lease owned
by a Sponsor or its Affiliate.
(b) Restrictions on Controlling Investments in New Entities.
For so long as a Sponsor participates in the control of the General
Partner, the Sponsors and their Affiliates shall be prohibited from
the following actions:
(i) The Majority Sponsor and its Affiliates may not,
through one or more transactions, form or purchase (1) a
general partner interest in any partnership (publicly traded
or private) that principally engages in a Restricted Business,
(2) a managing member interest in any limited liability
company (publicly traded or private) that principally engages
in a Restricted Business or (3) a controlling interest in any
corporation (publicly traded or private) that principally
engages in a Restricted Business; provided, however, that the
Majority Sponsor may form or purchase a general partner
interest in any private partnership, a managing member
interest in any private limited liability company or a
controlling interest in any private corporation, each
principally engaging in a Restricted Business, subject to
Sections 2.3 and 2.4.
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(ii) The Minority Sponsor and its Affiliates may not,
through one or more transactions, form or purchase (1) a
general partner interest in any partnership (publicly traded
or private) that principally engages in a Restricted Business,
(2) a managing member interest in any limited liability
company (publicly traded or private) that principally engages
in a Restricted Business or (3) a controlling interest in any
corporation (publicly traded or private) that principally
engages in a Restricted Business; provided, however, that the
Minority Sponsor may form or purchase a general partner
interest in any partnership (publicly traded or private), a
managing member interest in any limited liability company
(publicly traded or private) or a controlling interest in any
corporation (publicly traded or private), each principally
engaging in a Restricted Business, so long as (1) the Minority
Sponsor sells such general partner interest, managing member
interest or controlling interest to the Partnership or a third
party within six months of the date of the acquisition by the
Minority Sponsor or (2) the General Partner (with the
concurrence of the Conflicts Committee) agrees that the
interest in the Restricted Business will be subject to Section
2.4 of this Agreement without further reference to this
paragraph. If, at any time after six months from the date of
such formation or acquisition by the Minority Sponsor, the
Minority Sponsor continues to own the interest in the
Restricted Business despite a good faith, reasonable attempt
to divest such interest, it may seek an extension from the
Conflicts Committee for such time as is reasonably necessary
to divest such interest. The Conflicts Committee, in its
discretion, may either (1) grant an extension to the Minority
Sponsor to complete the divestiture of such interest or (2)
subject such interest to Section 2.4(c).
If the Conflicts Committee does not grant an extension or if
the Minority Sponsor's interest in the Restricted Business is
not otherwise subject to Section 2.4, then if at any time
after six months from the date of such formation or
acquisition by the Minority Sponsor, the Minority Sponsor
continues to own such interest despite a good faith,
commercially reasonable attempt to divest such interest, it
must promptly notify the General Partner in writing of its
decision to either (1) immediately cause its directors to
resign from the board of directors of GP LLC and it shall
thereafter be forever free to continue to own and operate such
interest in the Restricted Business; provided, however, that
the Minority Sponsor shall thereafter continue to relinquish
its rights to designate directors of GP LLC until such time as
the Minority Sponsor divests of its interest in the Restricted
Business or (2) initiate a sale of its interest in the
Restricted Business to the Partnership as described below and
engage an independent investment banking firm with a national
reputation to determine the fair market value of the
Restricted Business. Such investment banking firm will
determine the fair market value of the interest in the
Restricted Business within 30 days and furnish the Minority
Sponsor and the General
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Partner its opinion of such value. The Minority Sponsor and
the General Partner shall have 30 days from the receipt of
such opinion to determine::
(A) if the Minority Sponsor and the General
Partner (with the concurrence of the Conflicts
Committee) agree on the fair market value as determined
by the investment banking firm, in which case the
Minority Sponsor shall sell the interest in the
Restricted Business to any member of the Partnership
Group;
(B) if the Minority Sponsor desires to sell the
interest in the Restricted Business to the Partnership
Group at the valuation determined by the investment
banking firm but the General Partner (with the
concurrence of the Conflicts Committee) does not elect
to purchase the interest in the Restricted Business at
such valuation, in which case the Minority Sponsor will
be forever free to continue to own and operate the
interest in the Restricted Business; or
(C) if the Minority Sponsor does not elect to sell
the interest in the Restricted Business at the valuation
determined by the investment banking firm but the
General Partner (with the concurrence of the Conflicts
Committee) desires the purchase the interest in the
Restricted Business at such valuation, in which case the
Minority Sponsor will cause its designated directors to
resign immediately from the board of directors of GP
LLC, and the Minority Sponsor will be forever free to
continue to own and operate the interest in the
Restricted Business; provided, however, that the
Minority Sponsor shall thereafter continue to relinquish
its rights to designate directors of GP LLC until such
time as the Minority Sponsor divests of its interest in
the Restricted Business.
All fees of the investment banking firm for its services
pursuant to the preceding paragraph shall be (1) split equally
between the Minority Sponsor and the Partnership in the case
of clause (A) above; (2) the sole obligation of the
Partnership in the case of clause (B) above; or (3) the sole
obligation of the Minority Sponsor in the case of clause (C)
above.
2.2 PERMITTED EXCEPTIONS.
Notwithstanding any provision of Section 2.1 to the contrary, and
subject to Section 2.3 in the case of assets retained by a Sponsor
pursuant to Section 2.2(a) or Section 2.2(b)(i), any Sponsor or its
Affiliate may engage, directly or indirectly, in the following activities
under the following circumstances:
(a) owning, operating or investing in any Restricted Business
(whether comprised of one asset or a group of related assets) that
is retained by a Sponsor or its Affiliate as of the Closing Date;
provided, however that if after the Closing Date the Restricted
Business (whether comprised of one asset or a group of
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related assets) has a fair market value (as determined in good faith
by the board of directors, or other governing body, of the Sponsor
that owns, operates or invests in the Restricted Business) greater
than $10 million, the Sponsor must offer the Restricted Business to
the Partnership Group in accordance with Section 2.4;
(b) owning, operating or investing in a Restricted Business
that is acquired by a Sponsor or its Affiliate after the Closing
Date if:
(i) the fair market value of the Restricted Business
(whether comprised of one asset or a group of related assets)
(as determined in good faith by the board of directors, or
other governing body, of the Sponsor that will own, operate or
invest in the Restricted Business) is equal to or less than
$10 million at the time of such acquisition by such Sponsor or
its Affiliate; provided, however, that if the fair market
value of the Restricted Business (whether comprised of one
asset or a group of related assets) subsequently exceeds $10
million, the Sponsor must offer the Restricted Business to the
Partnership Group in accordance with Section 2.4.
(ii) in the case of an acquisition of a Restricted
Business (whether comprised of one asset or a group of related
assets) with a fair market value (as determined in good faith
by the board of directors, or other governing body, of the
Sponsor that will own, operate or invest in the Restricted
Business) greater than $10 million at the time of such
acquisition by the Sponsor, the Partnership Group has been
offered the opportunity to purchase the Restricted Business in
accordance with Section 2.4 and the Partnership Group (with
the concurrence of the Conflicts Committee) has elected not to
purchase the Restricted Business.
(iii) the investment in the Restricted Business is held
solely by means of an equity interest in the entity that owns
the Restricted Business and such equity interest does not
constitute control of the Restricted Business.
2.3 LIMITATION ON ACQUISITIONS BY THE MAJORITY SPONSOR.
(a) Notwithstanding Section 2.2, the fair market value (as
determined in good faith by the board of directors, or other
governing body, of the Majority Sponsor) of all Restricted
Businesses owned, operated or invested in by the Majority Sponsor
(other than those owned or operated by the Majority Sponsor as of
the Closing Date) may not exceed $75 million in the aggregate. For
purposes of this Section 2.3, the fair market value of any entity
owning the Restricted Businesses purchased by the Majority Sponsor
shall be determined based on the fair market value of the entity as
a whole, without regard for any lesser ownership interest therein to
be acquired by the Majority Sponsor.
2.4 PROCEDURES.
(a)
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(i) If the Majority Sponsor desires to acquire a
Restricted Business not otherwise permitted by Section 2.2 and
such Restricted Business constitutes greater than 50% of the
aggregate value of the entire acquisition, then the Majority
Sponsor shall (1) notify the General Partner in writing of
such acquisition opportunity, (2) deliver to the General
Partner all information prepared by or on behalf of the
Sponsor relating to such Restricted Business and the proposed
acquisition and (3) offer the Partnership Group the
opportunity to purchase such Restricted Business in accordance
with this Section 2.4. The offer shall set forth the terms
relating to the purchase of the Restricted Business. As soon
as practicable, but in any event within 60 days after receipt
of such written notification, the General Partner shall notify
the Sponsor in writing that either (1) the General Partner has
elected, with the approval of the Conflicts Committee, not to
cause a Group Member to purchase the Restricted Business, in
which event the Sponsor may consummate the proposed
acquisition opportunity and own, operate or invest in such
Restricted Business or (2) the General Partner has elected to
cause a Group Member to purchase the Restricted Business, in
which event the procedures outlined in this Section 2.4 shall
apply.
(ii) if (1) the Minority Sponsor desires to acquire a
Restricted Business or an entity that engages in a Restricted
Business not otherwise permitted by Section 2.2, in each case
with a fair market value (as determined in good faith by the
board of directors or other governing body of the Minority
Sponsor) in excess of $10 million or (2) the Majority Sponsor
desires to acquire a Restricted Business or an entity that
engages in a Restricted Business (not otherwise permitted by
Section 2.2) and such Restricted Business constitutes 50% or
less of the aggregate value of the entire acquisition, then
not later than six months after the consummation of the
acquisition by such Sponsor of the Restricted Business, such
Sponsor shall (1) notify the General Partner in writing of
such acquisition, (2) deliver to the General Partner all
information prepared by or on behalf of the Sponsor relating
to such acquisition and (3) offer the Partnership Group the
opportunity to purchase the Restricted Business in accordance
with this Section 2.4. The offer shall set forth terms
relating to the purchase of the Restricted Business. As soon
as practicable, but in any event within 60 days after receipt
of such written notification, the General Partner shall notify
the Sponsor in writing that either (1) the General Partner has
elected, with the approval of the Conflicts Committee, not to
cause a Group Member to purchase the Restricted Business, in
which case the Sponsor may continue to own, operate or invest
in such Restricted Business or (2) the General Partner has
elected to cause a Group Member to purchase the Restricted
Business, in which event the procedures outlined in this
Section 2.4 shall apply.
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(iii) For purposes of this Section 2.4, a "Restricted
Business" excludes a general partner interest or a managing
member interest, which interests are addressed in Section 2.1.
(b) If the Sponsor and the General Partner (with the
concurrence of the Conflicts Committee) are able to agree on the
fair market value of the Restricted Business that is subject to the
offer delivered pursuant to Section 2.4(a)(i) or (ii) above and the
other terms of the offer, a Group Member shall purchase the
Restricted Business for the agreed upon fair market value as soon as
commercially practicable after such agreement has been reached. The
purchase agreement for the Restricted Business will provide for the
purchase price to be paid, at the option of the Sponsor, in cash,
Units, or an interest-bearing promissory note (the interest rate and
other terms of which shall be mutually agreed upon by the Sponsor
and the General Partner) or any combination thereof.
(c) If the Sponsor and the General Partner are unable to agree
on the fair market value of the Restricted Business that is subject
to the offer delivered pursuant to Section 2.4(a)(i) or (ii) above
or the other terms of the offer within 60 days after receipt by the
General Partner of the offer, then the Sponsor may not, for a period
of two years following the date of the offer, sell the Restricted
Business to a third party for less than the price set forth in the
offer or on more favorable terms than the terms set forth in the
offer; provided, however, that if during such two-year period, a
change occurs in the Restricted Business that, in the good faith
opinion of the board of directors or other governing body of the
relevant Sponsor, affects the fair market value of such Restricted
Business by more than 10% and the fair market value of the
Restricted Business remains greater than $10 million, the Sponsor
shall be obligated to re-offer such Restricted Business to the
Partnership Group at the new fair market value (as determined in
good faith by the board of directors, or other governing body, of
the Sponsor that owns the Restricted Business) and the process with
respect to the Second Offer (as defined below) shall commence. If,
at the end of the two-year period, the Sponsor has not sold the
Restricted Business to a third party and the Restricted Business
still has a fair market value (as determined in good faith by the
board of directors, or other governing body, of the Sponsor that
owns the Restricted Business) greater than $10 million, the Sponsor
must again offer to the Partnership Group the opportunity to
purchase such Restricted Business in accordance with this Section
2.4(c) (the "Second Offer"). The Second Offer shall set forth the
terms relating to the purchase of the Restricted Business. As soon
as practicable, but in any event within 60 days after receipt of the
Second Offer, the General Partner shall notify the Sponsor in
writing that either (1) the General Partner has elected, with the
approval of the Conflicts Committee, not to cause a Group Member to
purchase the Restricted Business, in which event the Sponsor may
continue to own such Restricted Business without further obligation
with respect to the Partnership Group, or (2) the General Partner
has elected to cause a Group Member to purchase the Restricted
Business, in which event a Group Member shall purchase the
Restricted Business for the agreed upon fair market value as soon as
commercially practicable after such agreement has been reached.
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The purchase agreement for the Restricted Business will provide for
the purchase price to be paid, at the option of the Sponsor, in
cash, Units, or an interest-bearing promissory note (the interest
rate and other terms of which shall be mutually agreed upon by the
Sponsor and the General Partner) or any combination thereof.
2.5 SCOPE OF PROHIBITION. Except as provided in this Article II and
the Partnership Agreement, each Sponsor and its Affiliates shall be free to
engage in any business activity, including those that may be in direct
competition with any Group Member.
2.6 ENFORCEMENT. The Sponsors agree and acknowledge that the
Partnership Group does not have an adequate remedy at law for the breach by a
Sponsor of the covenants and agreements set forth in this Article II, and that
any breach by a Sponsor of the covenants and agreements set forth in this
Article II would result in irreparable injury to the Partnership Group. The
Sponsors each further agree and acknowledge that any Group Member may, in
addition to the other remedies which may be available to the Partnership Group,
file a suit in equity to enjoin a Sponsor Entity from such breach, and consent
to the issuance of injunctive relief under this Agreement.
ARTICLE III
INDEMNIFICATION
3.1 INDEMNIFICATION BY THE SPONSORS
(a) Subject to Section 3.2, the Sponsors, jointly and
severally, shall indemnify, defend and hold harmless the Partnership
Group for a period of three years after the Closing Date from and
against all Covered Environmental Losses, defined as follows: any
event or condition associated with ownership or operation of the
Assets including, without limitation, (A) the cost and expense of
any investigation, assessment, evaluation, monitoring, containment,
cleanup, repair, restoration, remediation, or other corrective
action required or necessary under Environmental Laws, (B) the cost
or expense of the preparation and implementation of any closure,
remedial, corrective action, or other plans required or necessary
under Environmental Laws, (C) the cost and expense for any
environmental or toxic tort pre-trial, trial, or appellate legal or
litigation support work and (D) any violation or correction of
violation of Environmental Laws associated with the Assets; but only
to the extent that such violation complained of under this section
or such events or conditions included under this section occurred
before the Closing Date (collectively, "Covered Environmental
Losses").
(b) The Sponsors, jointly and severally, shall indemnify,
defend and hold harmless the Partnership Group from and against all
federal, state and local income tax liabilities attributable to the
ownership or operation of the Assets prior to the Closing Date,
including any such income tax liabilities of the Sponsors and
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their Affiliates that may result from the consummation of the
formation transactions for the Partnership Group.
(c) Ark shall indemnify, defend and hold harmless the
Partnership Group from and against any and all claims, demands,
costs, liabilities and expenses (including court costs and
reasonable attorneys' fees) of every kind, character and
description, whether known or unknown, accrued or contingent, and
whether or not reflected on the books and records of Ark as of the
Closing Date, arising from or relating to the liabilities assumed by
the Partnership Group with respect to the Mechanics Lien. Ark hereby
agrees that upon the request of the Partnership Group, Ark will
escrow up to 150% of the amount of the Mechanics Lien, including
accrued interest in an account specified by the Partnership Group.
3.2 LIMITATIONS REGARDING ENVIRONMENTAL INDEMNIFICATION
(a) The Sponsors shall have no indemnification obligation
under Section 3.1 for (1) claims made after the third anniversary of
the Closing Date or (2) claims made as a result of additions to or
modifications of the Environmental Laws made after the Closing Date.
(b) The aggregate combined liability of the Sponsors in
respect of all Covered Environmental Claims under Section 3.1(a)
shall not exceed $10.0 million.
3.3 INDEMNIFICATION PROCEDURES
(a) The Partnership Group agrees that within a reasonable
period of time after it becomes aware of facts giving rise to a
claim for indemnification under this Article III, it will provide
notice thereof in writing to the Sponsor that contributed the
property that is the subject of the claim, specifying the nature of
and specific basis for such claim.
(b) Each Sponsor shall have the right to control all aspects
of the defense of (and any counterclaims with respect to) any claims
brought against the Partnership Group that are covered by the
indemnification under this Article III, including, without
limitation, the selection of counsel, determination of whether to
appeal any decision of any court and the settling of any such matter
or any issues relating thereto; provided, however, that no such
settlement shall be entered into without the consent of the
Partnership Group unless it includes a full release of the
Partnership Group from such matter or issues, as the case may be.
(c) The Partnership Group agrees to cooperate fully with each
Sponsor, with respect to all aspects of the defense of any claim
covered by the indemnification under this Article III, including,
without limitation, the prompt furnishing to each Sponsor of any
correspondence or other notice relating thereto that the Partnership
Group may receive, permitting the name of the Partnership Group to
be utilized in connection with such defense, the making available to
each Sponsor of any files, records or other information of the
Partnership Group
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that each Sponsor considers relevant to such defense and the making
available to each Sponsor of any employees of the Partnership Group;
provided, however, that in connection therewith each Sponsor agrees
to use reasonable efforts to minimize the impact thereof on the
operations of the Partnership Group and further agree to maintain
the confidentiality of all files, records, and other information
furnished by the Partnership Group pursuant to this Section 3.3. In
no event shall the obligation of the Partnership Group to cooperate
with each Sponsor as set forth in the immediately preceding sentence
be construed as imposing upon the Partnership Group an obligation to
hire and pay for counsel in connection with the defense of any
claims covered by the indemnification set forth in this Article III;
provided, however, that the Partnership Group may, at its own
option, cost and expense, hire and pay for counsel in connection
with any such defense. Each Sponsor agrees to keep any such counsel
hired by the Partnership Group informed as to the status of any such
defense, but each Sponsor shall have the right to retain sole
control over such defense.
(d) In determining the amount of any loss, cost, damage or
expense for which the Partnership Group is entitled to
indemnification under this Agreement, the gross amount of the
indemnification will be reduced by (1) any insurance proceeds
realized by the Partnership Group, and such correlative insurance
benefit shall be net of any incremental insurance premium that
becomes due and payable by the Partnership Group as a result of such
claim and (2) all amounts recovered by the Partnership Group under
contractual indemnities from third Persons.
(e) The date on which notification of a claim for
indemnification is received by the Sponsors shall determine whether
such claim is timely made under Section 3.2.
ARTICLE IV
MISCELLANEOUS
4.1 CHOICE OF LAW; SUBMISSION TO JURISDICTION. This Agreement shall
be subject to and governed by the laws of the State of Texas, excluding any
conflicts-of-law rule or principle that might refer the construction or
interpretation of this Agreement to the laws of another state. Each Party hereby
submits to the jurisdiction of the state and federal courts in the State of
Texas and to venue in Houston, Texas.
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4.2 NOTICE. All notices or requests or consents provided for by, or
permitted to be given pursuant to, this Agreement must be in writing and must be
given by depositing same in the United States mail, addressed to the Person to
be notified, postpaid, and registered or certified with return receipt requested
or by delivering such notice in person or by telecopier or telegram to such
Party. Notice given by personal delivery or mail shall be effective upon actual
receipt. Notice given by telegram or telecopier shall be effective upon actual
receipt if received during the recipient's normal business hours or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All notices to be sent to a Party
pursuant to this Agreement shall be sent to or made at the address set forth
below such Party's signature to this Agreement or at such other address as such
Party may stipulate to the other Parties in the manner provided in this Section
4.2.
if to Arch or Ark:
Arch Coal, Inc.
Attention: General Counsel
▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to WPP or NGCC:
Western Pocahontas Properties Limited Partnership or
New Gauley Coal Corporation
Attention: ▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 2827
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇
601 Jefferson, Suite 3600
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to GNP:
Great Northern Properties Limited Partnership
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇
601 Jefferson, Suite 3600
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to ▇▇▇▇▇▇▇▇▇ Coal Management LLC
▇▇▇▇▇▇▇▇▇ Coal Management LLC
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇
601 Jefferson, Suite 3600
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to any Group Member
NRP (GP) LP
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
601 Jefferson, Suite 3600
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
4.3 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the Parties relating to the matters contained herein, superseding
all prior contracts or agreements, whether oral or written, relating to the
matters contained herein.
4.4 TERMINATION. Article II of this Agreement will terminate with
respect to any Sponsor upon the sale or other disposition of (1) all of such
Sponsor's membership interest in GP LLC and limited partnership interest in the
General Partner and (2) the termination of its right to nominate and elect the
directors of GP LLC.
4.5 AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified from time to time after the Closing Date only by the written agreement
of all the Parties hereto; provided, however, that the Partnership may not,
without the prior approval of the Conflicts Committee, agree to any amendment or
modification of this Agreement that, in the reasonable discretion of the General
Partner, will adversely affect the holders of Common Units. Each such instrument
shall be reduced to writing and shall be designated on its face an "Amendment"
or an "Addendum" to this Agreement.
4.6 ASSIGNMENT. No Party shall have the right to assign its rights
or obligations under this Agreement without the consent of the other Parties
hereto.
4.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts with the same effect as if all signatory parties had signed the
same document. All counterparts shall be construed together and shall constitute
one and the same instrument.
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4.8 SEVERABILITY. If any provision of this Agreement shall be held
invalid or unenforceable by a court or regulatory body of competent
jurisdiction, the remainder of this Agreement shall remain in full force and
effect.
4.9 FURTHER ASSURANCES. In connection with this Agreement and all
transactions contemplated by this Agreement, each signatory party hereto agrees
to execute and deliver such additional documents and instruments and to perform
such additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions and conditions of this Agreement and
all such transactions.
4.10 RIGHTS OF LIMITED PARTNERS. The provisions of this Agreement
are enforceable solely by the Parties to this Agreement, and no Limited Partner
of the Partnership shall have the right, separate and apart from the
Partnership, to enforce any provision of this Agreement or to compel any Party
to this Agreement to comply with the terms of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on, and
effective as of, the Closing Date.
ARCH COAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
ARK LAND COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
WESTERN POCAHONTAS PROPERTIES
LIMITED PARTNERSHIP
By: Western Pocahontas Corporation,
Its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
GREAT NORTHERN PROPERTIES LIMITED
PARTNERSHIP
By: GNP Management Corporation,
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
NEW GAULEY COAL CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
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▇▇▇▇▇▇▇▇▇ COAL MANAGEMENT LLC
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Its sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
GP NATURAL RESOURCE PARTNERS LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
NRP (GP) LP
By: GP Natural Resource Partners LLC,
Its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
NATURAL RESOURCE PARTNERS L.P.
By: NRP (GP) LP,
Its General Partner
By: GP Natural Resource Partners LLC,
Its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
NRP (OPERATING) LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
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