EXHIBIT 10.2
FORM OF
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
INDEX
ARTICLE I DEFINITIONS; SCHEDULES..............................................4
1.1 Definitions.......................................................6
1.2 Schedules and Exhibits............................................6
ARTICLE II TRANSACTIONS.......................................................6
2.1 Contribution by New Gauley to NNG LLC of Assets...................6
2.2 Contribution by WPP to WPP LLC of Assets..........................7
2.3 Contribution by Great Northern to GNP LLC of Assets...............7
2.4 Contribution by Ark to ACIN LLC of Assets.........................7
2.5 Contribution by New Gauley to the MLP of Interest in NNG LLC......8
2.6 Contribution by WPP to the MLP of Interest in WPP LLC.............8
2.7 Contribution by Great Northern to the MLP of Interest in GNP
LLC.............................................................8
2.8 Contribution by Ark to the MLP of Interest in ACIN LLC............8
2.9 Public Cash Contribution..........................................8
2.10 Public Cash Contribution to Ark...................................8
2.11 MLP Receipt of Public Cash........................................8
2.12 Ark Receipt of Public Cash........................................9
2.13 NNG LLC Receipt of Offering Proceeds..............................9
2.14 WPP LLC Receipt of Offering Proceeds..............................9
2.15 GNP LLC Receipt of Offering Proceeds..............................9
2.16 Contribution by New Gauley to GP LP of its SPLs...................9
2.17 Contribution by WPP to GP LP of its SPLs..........................9
2.18 Contribution by Great Northern to GP LP of its SPLs...............9
2.19 Contribution by Ark to GP LP of its SPLs..........................9
2.20 Conversion of SPLs................................................9
2.21 Payment of Transaction Costs, Offering Proceeds and Capital
Expenditures....................................................9
2.22 Contribution by the MLP to the OLLC of the Membership Interests
in the LLCs.....................................................9
2.23 Exercise of the Shoe..............................................9
ARTICLE III ASSUMPTION OF CERTAIN LIABILITIES................................10
3.1 Assumption by the NNG LLC of the New Gauley Debt.................10
3.2 Assumption by the WPP LLC of the WPP Debt........................10
3.3 Assumption by the GNP LLC of the Great Northern Debt.............10
ARTICLE IV TITLE MATTERS.....................................................11
4.1 Encumbrances.....................................................11
4.2 Disclaimer of Warranties; Subrogation; Waiver of Bulk Sales
Laws...........................................................11
ARTICLE V FURTHER ASSURANCES.................................................13
5.1 Further Assurances...............................................13
5.2 Power of Attorney................................................13
ARTICLE VI MISCELLANEOUS.....................................................13
6.1 Order of Completion of Transactions..............................13
6.2 Consents; Restriction on Assignment..............................14
6.3 Costs............................................................14
6.4 Headings; References; Interpretation.............................14
6.5 Successors and Assigns...........................................15
6.6 No Third Party Rights............................................15
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6.7 Counterparts.....................................................15
6.8 Governing Law....................................................15
6.9 Severability.....................................................15
6.10 Deed; ▇▇▇▇ of Sale; Assignment...................................15
6.11 Amendment or Modification........................................15
6.12 Integration......................................................15
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CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
THIS
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT (this
"Agreement") is made, entered into and effective as of the [____] day of [JULY],
2002, by and among New Gauley Coal Corporation, a West Virginia corporation
("New Gauley"); Western Pocahontas Properties Limited Partnership, a Delaware
limited partnership ("WPP"); Great Northern Properties Limited Partnership, a
Delaware limited partnership ("Great Northern"); Ark Land Company, a Delaware
corporation ("Ark"); NNG LLC, a Delaware limited liability company ("NNG LLC");
WPP LLC, a Delaware limited liability company ("WPP LLC"); GNP LLC, a Delaware
limited liability company ("GNP LLC"); ACIN LLC, a Delaware limited liability
company ("ACIN LLC"); ▇▇▇▇▇▇▇▇▇ Coal Management LLC, a Delaware limited
liability company ("RCM LLC"); NRP (Operating) LLC, a Delaware limited liability
company (the "OLLC"); GP Natural Resource Partners LLC, a Delaware limited
liability company ("GP LLC"); NRP (GP) LP, a Delaware limited partnership ("GP
LP"); and Natural Resource Partners L.P., a Delaware limited partnership (the
"MLP").
RECITALS
WHEREAS, GP LLC and GP LP have formed the MLP pursuant to the Delaware
Revised Uniform Limited Partnership Act for the purpose of, among other things,
acquiring, owning and operating certain assets of New Gauley, WPP, Great
Northern and Ark used in the business of owning and managing coal properties;
WHEREAS, in furtherance of accomplishing the objectives and purposes
set forth in the preceding recital, the following actions have been taken prior
to the date hereof:
1. New Gauley has formed NNG LLC to which New Gauley contributed
$1,000 in exchange for all the membership interests in NNG
LLC.
2. WPP has formed WPP LLC to which WPP contributed $1,000 in
exchange for all the membership interests in WPP LLC.
3. Great Northern has formed GNP LLC to which Great Northern
contributed $1,000 in exchange for all the membership
interests in GNP LLC.
4. Ark has formed ACIN LLC to which Ark contributed $1,000 in
exchange for all the membership interest in ACIN LLC.
5. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. ("CR") and Ark have formed GP LLC to
which CR has contributed $527.50 in -- exchange for a 57.75%
member interest and Ark has contributed $422.50 in exchange
for a 42.25% member interest.
6. CR has formed RCM LLC to which CR contributed his 57.75%
interest in GP LLC in exchange for all the membership interest
in RCM LLC.
7. New Gauley, WPP, Great Northern, Ark and GP LLC have formed GP
LP to which New Gauley has contributed $18.40 in exchange for
a 1.8399816% limited partner interest, WPP has contributed
$460.80 in exchange for a 46.0795392%
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limited partner interest, Great Northern has contributed
$98.30 in exchange for a 9.8299017% limited partner interest,
Ark has contributed $422.50 in exchange for a 42.2495775%
limited partner interest and GP LLC has contributed $0.01 in
exchange for a 0.001% general partner interest.(1)
8. GP LP and GP LLC have formed the MLP to which GP LP has
contributed $20 in exchange for the 2% general partner
interest (including 65% of the incentive distribution rights
of the MLP (the "Incentive Distribution Rights")), and GP LLC
has contributed $980 in exchange for a 98% limited partner
interest.
9. The MLP has formed the OLLC to which it has contributed $1,000
in exchange for all the membership interests in the OLLC.
WHEREAS, concurrently with the consummation of the transactions
contemplated hereby, each of the following shall occur:
10. New Gauley will contribute certain assets to NNG LLC as a
capital contribution and in exchange for membership interests
and an assumption of certain debt related to the assets.
11. WPP will contribute certain assets to WPP LLC as a capital
contribution and in exchange for membership interests and an
assumption of certain debt related to the assets.
12. Great Northern will contribute certain assets to GNP LLC as a
capital contribution and in exchange for membership interests
and an assumption of certain debt related to the assets.
13. Ark will contribute assets to ACIN LLC as a capital
contribution and in exchange for membership interests.
14. New Gauley will contribute its membership interests in NNG LLC
to the MLP in exchange for (a) a 0.0368% special limited
partner interest ("SPL"), (b) 127,555 common units
representing common limited partner interests ("Common
Units"), constituting a 0.5% interest in the MLP, (c) 220,892
subordinated units, representing subordinated limited partner
interests of the MLP ("Subordinated Units"), constituting a
0.9% interest in the MLP and (d) 0.8% of the Incentive
Distribution Rights.
15. WPP will contribute its interest in WPP LLC to the MLP in
exchange for (a) a 10.9216% SPL, (b) 3,458,304 Common Units,
constituting a 14.1% interest in the MLP, (c) 5,531,904
Subordinated Units, constituting a 22.7% interest in the MLP,
(d) 19.94% of the Incentive Distribution Rights and (e) the
right to receive $11,520 as reimbursement for certain capital
expenditures.
-----------------------
(1) Ark has an aggregate 42.25% interest in GP LP based on its 42.2495775%
limited partner interest and its 0.0004225% general partner interest.
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16. Great Northern will contribute its interest in GNP LLC to the
MLP in exchange for (a) a 0.1966% SPL, (b) 671,389 Common
Units, constituting a 2.8% interest in the MLP, (c) 1,180,092
Subordinated Units, constituting a 4.8% interest in the MLP
and (d) 4.26% of the Incentive Distribution Rights.
17. Ark will contribute its interest in ACIN LLC to the MLP in
exchange for (a) a 0.8450% SPL, (b) 5,072,112 Common Units,
constituting a 20.8% interest in the MLP, (c) 5,072,112
Subordinated Units, constituting a 20.8% interest in the MLP
and (d) 10% of the Incentive Distribution Rights.
18. The public, through the Underwriters, will contribute
$51,975,000 ($48,596,625 net of the Underwriters' 6.5% spread)
to the MLP in exchange for 2,598,750 Common Units,
constituting a 10.6% interest in the MLP.
19. The public, through the Underwriters, will pay $38,025,000
($35,410,781 net of the Underwriters' spread) to Ark in
exchange for 1,901,250 Common Units, constituting a 7.8%
interest in the MLP.
20. New Gauley will contribute its SPLs to GP LP as capital
contribution to continue its interest in GP LP.
21. WPP will contribute its SPLs to GP LP as capital contribution
to continue its interest in GP LP.
22. Great Northern will contribute its SPLs to GP LP as capital
contribution to continue its interest in GP LP.
23. Ark will contribute its SPLs to GP LP as capital contribution
to continue its interest in GP LP.
24. The SPLs held by GP LP will be converted to an additional
general partner capital interest in the MLP.
25. The MLP (a) will pay the transaction expenses,(2) estimated to
be $5,000,000, (b) will contribute some of the remaining cash
to NNG LLC ($1,635,000), WPP LLC ($36,000,000) and GNP LLC
($7,485,105) which, in turn will use the funds to retire all
or a portion of their debt ($1,635,000, $36,000,000 and
$7,485,105, respectively), (c) will distribute $11,520 to WPP
to reimburse it for certain capital expenditures and (d) will
retain $1,000,000 for working capital.
26. The MLP will contribute its interests in NNG LLC, WPP LLC, GNP
LLC, and ACIN LLC to the OLLC as a capital contribution.
-----------------------
(2) The MLP will reimburse the parties for prior payments made by them of
transaction expenses; ACIN LLC will pay 42.25% or reimburse the MLP for 42.25%
of the transaction expenses including retained working capital (which share is
estimated to be $2,535,000).
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27. [If the over-allotment option (the "Shoe") is exercised in
full, 57.75% of the net proceeds ($7,289,494) will be
contributed to the MLP which, in turn, will contribute a
portion ($1,437,832) to the OLLC which, in turn, will
contribute a portion to GNP LLC ($1,437,832) which will use
the funds to retire the balance of its debt; the balance of
the proceeds ($5,851,662) will be used by the MLP to redeem
311,040 of the Common Units held by WPP and 1,883 of the
Common Units held by New Gauley at a price of $18.70 per unit
($20 less the Underwriters' spread) in reimbursement of
certain capital expenditures. To the extent the Shoe is not
exercised, Great Northern and New Gauley will purchase up to
66,353 and 10,537 of the Common Units, respectively, with the
proceeds being used, as described above, to retire debt of New
Gauley and GNP LLC. The balance (42.25%) of the net proceeds
will be paid to Ark in exchange for its share (42.25%) of the
Common Units sold pursuant to the exercise of the Shoe.](3)
[update depending on whether Shoe is exercised.]
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the parties to this Agreement undertake and agree as
follows:
ARTICLE I
DEFINITIONS; SCHEDULES
1.1 Definitions. The following capitalized terms have the meanings
given below.
"ACIN LLC" has the meaning assigned to such term in the
opening paragraph.
"Agreement" has the meaning assigned to such term in the
opening paragraph.
"Ark" has the meaning assigned to such term in the opening
paragraph.
"Ark Assets" has the meaning assigned to such term in Section
2.4.
"Attorney-in-Fact" has the meaning assigned to such term in
Section 5.2.
"Beneficial Owner" has the meaning assigned to such term in
Section 6.2.
"Common Units" has the meaning assigned to such term in
Recital 14.
"Contributing Parties" has the meaning assigned to such term
in Section 5.2.
"Conveyed Assets" has the meaning assigned to such term in
Section 5.2.
"CR" has the meaning assigned to such term in Recital 5.
"Effective Date" means July [________], 2002.
-----------------------------
(3) If the Shoe is not exercised, there will be $99,968 additional working
capital equal to the spread of the units bought by Great Northern (66,353) and
New Gauley (10,537) as they will pay the same price as the public and no spread
will be paid on them.
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"Effective Time" means 12:01 a.m. Eastern Standard Time on the
Effective Date.
"GNP LLC" has the meaning assigned to such term in the opening
paragraph.
"GP LLC" has the meaning assigned to such term in the opening
paragraph.
"GP LP" has the meaning assigned to such term in the opening
paragraph.
"Great Northern" has the meaning assigned to such term in the
opening paragraph.
"Great Northern Assets" has the meaning assigned to such term
in Section 2.3.
"Great Northern Debt" has the meaning assigned to such term in
Section 2.3.
"Incentive Distribution Rights" has the meaning assigned to
such term in Recital 8.
"Initial Offering" has the meaning assigned to such term in
the Partnership Agreement.
"Laws" means any and all laws, statutes, ordinances, rules or
regulations promulgated by a governmental authority, orders of a governmental
authority, judicial decisions, decisions of arbitrators or determinations of any
governmental authority or court.
"MLP" has the meaning assigned to such term in the opening
paragraph.
"New Gauley" has the meaning assigned to such term in the
opening paragraph.
"New Gauley Assets" has the meaning assigned to such term in
Section 2.1.
"New Gauley Debt" has the meaning assigned to such term in
Section 2.1.
"NNG" has the meaning assigned to such term in the opening
paragraph.
"Offering Costs" has the meaning assigned to such term in
Section 2.21.
"Offering Proceeds" has the meaning assigned to such term in
Section 2.11.
"OLLC" has the meaning assigned to such term in the opening
paragraph.
"Omnibus Agreement" has the meaning assigned to such term in
the Partnership Agreement.
"Partnership Agreement" means the Agreement of Limited
Partnership of the MLP, as it may be amended and restated from time to time.
"RCM LLC" has the meaning assigned to such term in the opening
paragraph.
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"Restriction" has the meaning assigned to such term in Section
6.2.
"Restriction Asset" has the meaning assigned to such term in
Section 6.2.
"Shoe" has the meaning assigned to such term in Recital 27.
"SPL" has the meaning assigned to such term in Recital 14.
"Subordinated Units" has the meaning assigned to such term in
Recital 14.
"Underwriters" has the meaning assigned to such term in the
Partnership Agreement.
"WPP" has the meaning assigned to such term in the opening
paragraph.
"WPP Assets" has the meaning assigned to such term in Section
2.2.
"WPP Debt" has the meaning assigned to such term in Section
2.2.
"WPP LLC" has the meaning assigned to such term in the opening
paragraph.
1.2 Schedules and Exhibits. The following schedules and exhibits
are attached hereto:
Schedule 2.1 - New Gauley Assets
Schedule 2.2 - WPP Assets
Schedule 2.3 - Great Northern Assets
Schedule 2.4 - Ark Assets
ARTICLE II
TRANSACTIONS
2.1 Contribution by New Gauley to NNG LLC of Assets. New Gauley hereby
contributes, transfers and assigns to NNG LLC, its successors and assigns, for
its and their own use forever, all right, title and interest of New Gauley in
and to all the assets described on Schedule 2.1 (the "New Gauley Assets") and
NNG LLC hereby accepts the New Gauley Assets, as a capital contribution and in
exchange for an assumption of $1,635,000 in debt related to the New Gauley
Assets (the "New Gauley Debt"); provided, however, that subject to the rights of
NNG LLC, its successors and assigns to use or consume the same in connection
with its coal mining operations, New Gauley reserves, for itself and its
successors and assigns, all of its interest in timber, oil and gas and the
surface estate of the assets described on Schedule 2.1 and such reserved
interests are not included in the New Gauley Assets.
TO HAVE AND TO HOLD the New Gauley Assets unto NNG LLC, its
successors and assigns, together with all and singular the rights and
appurtenances thereto in
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anywise belonging, subject, however, to the terms and conditions stated in this
Agreement, and in such instruments of conveyance forever.
2.2 Contribution by WPP to WPP LLC of Assets. WPP hereby contributes,
transfers and assigns to WPP LLC, its successor and assigns, for its and their
use forever, all right, title and interest of WPP in and to all the assets
described on Schedule 2.2 ("WPP Assets") and WPP LLC hereby accepts the WPP
Assets as a capital contribution, and in exchange for an assumption of
$36,000,000 in debt related to the WPP Assets (the "WPP Debt"); provided,
however, that subject to the rights of WPP LLC, its successors and assigns to
use or consume the same in connection with its coal mining operations, WPP
reserves, for itself and its successors and assigns, all of its interest in
timber, oil and gas and the surface estate of the assets described on Schedule
2.2 and such reserved interests are not included in the WPP Assets.
TO HAVE AND TO HOLD the WPP Assets unto WPP LLC, its successors and
assigns, together with all and singular the rights and appurtenances thereto in
anywise belonging, subject, however, to the terms and conditions stated in this
Agreement, and in such instruments of conveyance forever.
2.3 Contribution by Great Northern to GNP LLC of Assets. Great Northern
hereby contributes, transfers and assigns to GNP LLC, its successor and assigns,
for its and their use forever, all right, title and interest of Great Northern
in and to all the assets described on Schedule 2.3 (the "Great Northern Assets")
and GNP LLC hereby accepts the Great Northern Assets as a capital contribution
and in exchange for an assumption of $8,922,937 in debt related to the Great
Northern Assets (the "Great Northern Debt"); provided, however, that subject to
the rights of GNP LLC, its successors and assigns to use or consume the same in
connection with its coal mining operations, Great Northern reserves, for itself
and its successors and assigns, all of its interest in timber, oil and gas and
the surface estate of the assets described on Schedule 2.3 and such reserved
interests are not included in the Great Northern Assets.
TO HAVE AND TO HOLD the Great Northern Assets unto GNP LLC, its
successors and assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to the terms and
conditions stated in this Agreement, and in such instruments of conveyance
forever.
2.4 Contribution by Ark to ACIN LLC of Assets. Ark hereby contributes,
transfers and assigns to ACIN LLC, its successor and assigns, for its and their
use forever, all right, title and interest of Ark in and to all the assets
described on Schedule 2.4 ("Ark Assets") and ACIN LLC hereby accepts the Ark
Assets as a capital contribution; provided, however, that subject to the rights
of ACIN LLC, its successors and assigns to use or consume the same in connection
with its coal mining operations, Ark reserves, for itself and its successors and
assigns, (a)(i) the oil and gas estate and (ii) the coal bed methane estate (to
the extent it is not included in the oil and gas estate reserved above)
contained within certain properties (4) located in ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ Counties,
Kentucky and Wise County, Virginia of the assets described on Schedule 2.4 and
(b) an [eighty] percent royalty interest in the coal bed methane estate (to the
extent not reserved in
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(4) These properties contain an oil and gas lease to Columbia Natural
Resources, Inc. This lease does not include the coal bed methane, but grants
Columbia a right of first option as to any lease of the coal bed methane.
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clause (a)(ii) above) of the assets described on Schedule 2.4 and such reserved
interests referenced in clauses (a) and (b) above are not included in the Ark
Assets.
TO HAVE AND TO HOLD the Ark Assets unto ACIN LLC, its successors
and assigns, together with all and singular the rights and appurtenances thereto
in anywise belonging, subject, however, to the terms and conditions stated in
this Agreement, and in such instruments of conveyance forever.
2.5 Contribution by New Gauley to the MLP of Interest in NNG LLC. New
Gauley hereby grants, contributes, transfers, assigns and conveys to the MLP,
all of its membership interests in NNG LLC in exchange for (a) a 0.0368% SPL,
(b) 127,555 Common Units, constituting a 0.5% interest in the MLP, (c) 220,892
Subordinated Units, constituting a 0.9% interest in the MLP and (d) 0.8% of the
Incentive Distribution Rights.
2.6 Contribution by WPP to the MLP of Interest in WPP LLC. WPP hereby
grants, contributes, transfers, assigns and conveys to the MLP all of its
membership interests in WPP LLC in exchange for (a) a 0.9216% SPL, (b) 3,458,304
Common Units, constituting a 14.2% interest in the MLP, (c) 5,531,904
Subordinated Units, constituting a 22.7% interest in the MLP, (d) 19.94% of the
Incentive Distribution Rights and (d) the right to receive $11,520 as
reimbursement for certain capital contributions.
2.7 Contribution by Great Northern to the MLP of Interest in GNP LLC.
Great Northern hereby grants, contributes, transfers, assigns and conveys to the
MLP all of its membership interests in GNP LLC in exchange for (a) a 0.1966%
SPL, (b) 671,389 Common Units, constituting a 2.8% interest in the MLP, (c)
1,180,092 Subordinated Units, constituting a 4.8% interest in the MLP and (d)
4.26% of the Incentive Distribution Rights.
2.8 Contribution by Ark to the MLP of Interest in ACIN LLC. Ark hereby
grants, contributes, transfers, assigns and conveys to the MLP all of its
membership interest in ACIN LLC in exchange for (a) a 0.8450% SPL, (b) 5,072,112
Common Units, constituting a 20.8% interest in the MLP, (c) 5,072,112
Subordinated Units, constituting a 20.8% interest in the MLP and (d) 10% of the
Incentive Distribution Rights.
2.9 Public Cash Contribution. The parties to this Agreement acknowledge
a cash contribution of $48,596,625 (being a gross contribution of $51,975,000
reduced by the Underwriters' 6.5% spread) from the public to the MLP in exchange
for 2,598,750 Common Units, representing a 10.6% limited partner interest in the
MLP.
2.10 Public Cash Contribution to Ark. The parties to this Agreement
acknowledge a cash contribution of $35,410,781 (being a gross contribution of
$38,025,000 reduced by the Underwriters' 6.5% spread) from the public to Ark in
exchange for 1,901,250 Common Units, representing a 7.8% interest in the MLP.
2.11 MLP Receipt of Public Cash. The MLP acknowledges receipt of
$48,596,625 in cash obtained from the Initial Offering (the "Offering Proceeds")
as a capital contribution to the MLP.
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2.12 Ark Receipt of Public Cash. Ark acknowledges receipt of
$35,410,781 in cash obtained from the Initial Offering in exchange for 1,901,250
Common Units, representing a 7.8% limited partner interest in the MLP.
2.13 NNG LLC Receipt of Offering Proceeds. NNG LLC acknowledges receipt
of $1,635,000 in cash obtained from the MLP.
2.14 WPP LLC Receipt of Offering Proceeds. WPP LLC acknowledges receipt
of $36,000,000 in cash obtained from the MLP.
2.15 GNP LLC Receipt of Offering Proceeds. GNP LLC acknowledges receipt
of $7,485,105 in cash obtained from the MLP.
2.16 Contribution by New Gauley to GP LP of its SPLs. New Gauley hereby
grants, contributes, transfers, assigns and conveys to GP LP, as a capital
contribution, its SPLs to continue its interest in GP LP, and GP LP hereby
accepts the same.
2.17 Contribution by WPP to GP LP of its SPLs. WPP hereby contributes,
transfers and assigns to GP LP, as a capital contribution, its SPLs to continue
its interest in GP LP, and GP LP hereby accepts the same.
2.18 Contribution by Great Northern to GP LP of its SPLs. Great
Northern herby contributes, transfers and assigns to GP LP, as a capital
contribution, its SPLs to continue its interest in GP LP, and GP LP hereby
accepts the same.
2.19 Contribution by Ark to GP LP of its SPLs. Ark hereby contributes,
transfers and assigns to GP LP, as a capital contribution, its SPLs to continue
its interest in GP LP, and GP LP hereby accepts the same.
2.20 Conversion of SPLs. The parties acknowledge that the SPLs held by
GP LP will be converted to an additional general partner interest in the MLP.
2.21 Payment of Transaction Costs, Offering Proceeds and Capital
Expenditures. The parties to this Agreement acknowledge that the MLP has used
all of such capital contribution (a) to pay transaction costs accrued in
connection with the Initial Offering, including without limitation the
Underwriters' 6.5% spread, that are due and payable or that have previously been
paid (collectively, the "Offering Costs") and (b) to pay the balance of the
Offering Proceeds to the NNG LLC ($1,635,000), WPP LLC ($36,000,000) and GNP LLC
($7,485,105) as a capital contribution in each of NNG LLC, WPP LLC and GNP LLC
which, in turn will use the funds to retire a portion of their debt ($1,635,000,
$36,000,000 and $7,485,105, respectively) and (c) to distribute $11,520 to WPP
as reimbursement for certain capital expenditures.
2.22 Contribution by the MLP to the OLLC of the Membership Interests in
the LLCs. The MLP hereby contributes, transfers and assigns to the OLLC, as a
capital contribution, the MLP's interests in NNG LLC, WPP LLC, GNP LLC and ACIN
LLC, respectively.
2.23 Exercise of the Shoe. [The parties to this Agreement hereby
acknowledge that the MLP shall contribute a portion ($1,437,832) of the net
proceeds from the exercise of the
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Shoe to the OLLC as a capital contribution which shall, in turn, contribute that
portion to GNP LLC ($1,437,832), which shall be used to retire the balance of
its debt. The balance of the net proceeds from the exercise of the Shoe
($5,851,662) shall be used by the MLP to redeem 311,040 of the Common Units held
by WPP and 1,883 of the Common Units held by New Gauley at a price of $18.70 per
unit for reimbursement of capital expenditures. To the extent the Shoe is not
exercised, Great Northern and New Gauley will purchase up to 66,353 and 10,537
Common Units, respectively, and the net proceeds will be used as described
above, to retire debt of New Gauley and Great Northern LLC. The balance (42.25%)
of the net proceeds will be paid to Ark in exchange for its share (42.25%) of
the Common Units sold to Ark pursuant to the exercise of the Shoe.] [Update
depending on whether Shoe is exercised.]
ARTICLE III
ASSUMPTION OF CERTAIN LIABILITIES
3.1 Assumption by the NNG LLC of the New Gauley Debt. In connection
with the capital contribution by New Gauley to NNG LLC, as set forth in Section
2.1 above, NNG LLC hereby assumes and agrees to duly and timely pay, perform and
discharge the New Gauley Debt, to the full extent that New Gauley has been
heretofore or would have been in the future obligated to pay, perform and
discharge the New Gauley Debt were it not for such execution and delivery of
this Agreement; provided however that said assumption and agreement to duly and
timely pay, perform and discharge the New Gauley Debt shall not (i) increase the
obligation of NNG LLC with respect to the New Gauley Debt beyond that of New
Gauley, (ii) waive any valid defense that was available to New Gauley with
respect to the New Gauley Debt or (iii) enlarge any rights or remedies of any
third party with respect to the New Gauley Debt.
3.2 Assumption by the WPP LLC of the WPP Debt. In connection with the
capital contribution by WPP to WPP LLC, as set forth in Section 2.2 above, WPP
LLC hereby assumes and agrees to duly and timely pay, perform and discharge the
WPP Debt, to the full extent that WPP has been heretofore or would have been in
the future obligated to pay, perform and discharge the WPP Debt were it not for
such contribution and the execution and delivery of this Agreement; provided
however that said assumption and agreement to duly and timely pay, perform and
discharge the WPP Debt shall not (i) increase the obligation of the WPP LLC with
respect to the WPP Debt beyond that of WPP, (ii) waive any valid defense that
was available to WPP with respect to the WPP Debt or (iii) enlarge any rights or
remedies of any third party with respect to the WPP Debt.
3.3 Assumption by the GNP LLC of the Great Northern Debt. In connection
with the capital contribution by Great Northern to GNP LLC, as set forth in
Section 2.3 above, GNP LLC hereby assumes and agrees to duly and timely pay,
perform and discharge the Great Northern Debt, to the full extent that Great
Northern has been heretofore or would have been in the future obligated to pay,
perform and discharge the Great Northern Debt were it not for such contribution
and the execution and delivery of this Agreement; provided however that said
assumption and agreement to duly and timely pay, perform and discharge the Great
Northern Debt shall not (i) increase the obligation of the MLP with respect to
the Great Northern Debt beyond that of Great Northern, (ii) waive any valid
defense that was available to Great Northern
10
with respect to the Great Northern Debt or (iii) enlarge any rights or remedies
of any third party with respect to the Great Northern Debt.
ARTICLE IV
TITLE MATTERS
4.1 Encumbrances.
(a) Except to the extent provided in Article II or any other
document executed in connection with this Agreement or the Initial Offering
including, without limitation, the Omnibus Agreement, the contribution and
conveyance of the various Conveyed Assets (as defined below) as reflected in
this Agreement are made expressly subject to (i) all recorded and specifically
identified unrecorded liens, encumbrances, agreements, defects, restrictions,
adverse claim and all laws, rules, regulations, ordinances, judgments and orders
of governmental authorities or tribunals having or asserting jurisdiction over
the Conveyed Assets and operations conducted thereon or therewith, in each case
to the extent the same are valid and enforceable and affect the Conveyed Assets,
including, without limitation, (ii) all matters that a current on the ground
survey or visual inspection of the Conveyed Assets would reflect, (iii) the
applicable liabilities assumed in Article III, and (iv) all matters contained in
the applicable provisions of Article II.
(b) To the extent that certain jurisdictions in which the Conveyed
Assets are located may require that documents be recorded in order to evidence
the transfers of title reflected in this Agreement, then the provisions set
forth in Section 4.1(a) immediately above shall also be applicable to the
conveyances under such documents.
4.2 Disclaimer of Warranties; Subrogation; Waiver of Bulk Sales Laws.
(a) EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR
DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE INITIAL OFFERING INCLUDING,
WITHOUT LIMITATION THE OMNIBUS AGREEMENT, THE PARTIES TO THIS AGREEMENT
ACKNOWLEDGE AND AGREE THAT NONE OF THE PARTIES TO THIS AGREEMENT HAS MADE, DOES
NOT MAKE, AND EACH SUCH PARTY SPECIFICALLY NEGATES AND DISCLAIMS, ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS, OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ORAL
OR WRITTEN, PAST OR PRESENT, REGARDING (A) THE VALUE, NATURE, QUALITY, OR
CONDITION OF ANY ASSET, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL, GEOLOGY,
OR ENVIRONMENTAL CONDITION OF ANY ASSET GENERALLY, INCLUDING THE PRESENCE OR
LACK OF HAZARDOUS SUBSTANCES OR OTHER MATTERS ON THE CONVEYED ASSETS, (B) THE
INCOME TO BE DERIVED FROM THE CONVEYED ASSETS, (C) THE SUITABILITY OF THE
CONVEYED ASSETS FOR ANY AND ALL ACTIVITIES AND USES THAT MAY BE CONDUCTED
THEREON, (D) THE COMPLIANCE OF OR BY THE CONVEYED ASSETS OR THEIR OPERATION WITH
ANY LAWS (INCLUDING WITHOUT LIMITATION ANY ZONING, ENVIRONMENTAL PROTECTION,
POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS), OR (E)
THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE CONVEYED ASSETS. EXCEPT TO THE EXTENT PROVIDED IN ANY
OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE
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INITIAL OFFERING INCLUDING, WITHOUT LIMITATION, THE OMNIBUS AGREEMENT, THE
PARTIES TO THIS AGREEMENT ACKNOWLEDGE AND AGREE THAT EACH HAS HAD THE
OPPORTUNITY TO INSPECT THE RESPECTIVE CONVEYED ASSETS, AND EACH IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE RESPECTIVE CONVEYED ASSETS AND NOT ON ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY ANY OF THE PARTIES TO THIS AGREEMENT.
EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN
CONNECTION WITH THIS AGREEMENT OR THE INITIAL OFFERING INCLUDING, WITHOUT
LIMITATION, THE OMNIBUS AGREEMENT, NONE OF THE PARTIES TO THIS AGREEMENT IS
LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE CONVEYED ASSETS FURNISHED BY
ANY AGENT, EMPLOYEE, SERVANT OR THIRD PARTY. EXCEPT TO THE EXTENT PROVIDED IN
ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR
THE INITIAL OFFERING INCLUDING, WITHOUT LIMITATION, THE OMNIBUS AGREEMENT, EACH
OF THE PARTIES TO THIS AGREEMENT ACKNOWLEDGE THAT TO THE MAXIMUM EXTENT
PERMITTED BY LAW, THE CONTRIBUTION OF THE CONVEYED ASSETS AS PROVIDED FOR HEREIN
IS MADE IN AN "AS IS", "WHERE IS" CONDITION WITH ALL FAULTS, AND THE CONVEYED
ASSETS ARE CONTRIBUTED AND CONVEYED SUBJECT TO ALL OF THE MATTERS CONTAINED IN
THIS SECTION. THIS SECTION SHALL SURVIVE SUCH CONTRIBUTION AND CONVEYANCE OR THE
TERMINATION OF THIS AGREEMENT. THE PROVISIONS OF THIS SECTION HAVE BEEN
NEGOTIATED BY THE PARTIES TO THIS AGREEMENT AFTER DUE CONSIDERATION AND ARE
INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY REPRESENTATIONS OR
WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE CONVEYED
ASSETS THAT MAY ARISE PURSUANT TO ANY LAW NOW OR HEREAFTER IN EFFECT, OR
OTHERWISE, EXCEPT AS SET FORTH IN THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED
OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE INITIAL OFFERING,
INCLUDING, WITHOUT LIMITATION, THE OMNIBUS AGREEMENT.
(b) To the extent that certain jurisdictions in which the Conveyed
Assets are located may require that documents be recorded in order to evidence
the transfers of title reflected in this Agreement, then the disclaimers set
forth in Section 4.2(a) immediately above shall also be applicable to the
conveyances under such documents, except as otherwise provided in such document.
(c) The contributions of the Conveyed Assets made under this
Agreement are made with full rights of substitution and subrogation of the
respective parties receiving such contributions, and all persons claiming by,
through and under such parties, to the extent assignable, in and to all
covenants and warranties by the predecessors-in-title of the parties
contributing the Conveyed Assets, and with full subrogation of all rights
accruing under applicable statutes of limitation and all rights of action of
warranty against all former owners of the Conveyed Assets.
(d) Each of the parties to this Agreement agrees that the
disclaimers contained in this Section 4.2 are "conspicuous" disclaimers. Any
covenants implied by statute or law by the use of the words "grant," "convey,"
"bargain," "sell," "assign," "transfer," "deliver," or "set over" or any of them
or any other words used in this Agreement or any exhibits hereto are hereby
expressly disclaimed, waived or negated.
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(e) Each of the parties to this Agreement hereby waives compliance
with any applicable bulk sales law or any similar law in any applicable
jurisdiction in respect of the transactions contemplated by this Agreement.
ARTICLE V
FURTHER ASSURANCES
5.1 Further Assurances. From time to time after the date hereof, and
without any further consideration, the parties to this Agreement agree to
execute, acknowledge and deliver all such additional deeds, assignments, bills
of sale, conveyances, instruments, notices, releases, acquittances and other
documents, and will do all such other acts and things, all in accordance with
applicable law, as may be necessary or appropriate (i) more fully to assure that
the applicable parties to this Agreement own all of the properties, rights,
titles, interests, estates, remedies, powers and privileges granted by this
Agreement, or which are intended to be so granted, (ii) more fully and
effectively to vest in the applicable parties to this Agreement and their
respective successors and assigns beneficial and record title to the interests
contributed and assigned by this Agreement or intended so to be and (iii) more
fully and effectively to carry out the purposes and intent of this Agreement.
5.2 Power of Attorney. Each party (collectively, the "Contributing
Parties") that has conveyed assets (collectively, the "Conveyed Assets") as
reflected by this Agreement hereby constitutes and appoints GP LP (the
"Attorney-in-Fact"), its true and lawful attorney-in-fact with full power of
substitution for it and in its name, place and stead or otherwise on behalf of
the applicable Contributing Party and its successors and assigns, and for the
benefit of the Attorney-in-Fact to demand and receive from time to time the
Conveyed Assets contributed and to execute in the name of the applicable
Contributing Party and its successors and assigns instruments of conveyance,
instruments of further assurance and to give receipts and releases in respect of
the same, and from time to time to institute and prosecute in the name of the
applicable Contributing Party for the benefit of the Attorney-in-Fact, any and
all proceedings at law, in equity or otherwise which the Attorney-in-Fact may
deem proper in order to (i) collect, assert or enforce any claims, rights or
titles of any kind in and to the Conveyed Assets, (ii) defend and compromise any
and all actions, suits or proceedings in respect of any of the Conveyed Assets,
and (iii) do any and all such acts and things in furtherance of this Agreement
as the Attorney-in-Fact shall deem advisable. Each Contributing Party hereby
declares that the appointment hereby made and the powers hereby granted are
coupled with an interest and are and shall be irrevocable and perpetual and
shall not be terminated by any act of any Contributing Party or its successors
or assigns or by operation of law.
ARTICLE VI
MISCELLANEOUS
6.1 Order of Completion of Transactions. The transactions provided for
in Articles II (except as otherwise noted) and III of this Agreement shall be
completed on the Effective Date in the following order:
First, the transactions provided for in Article II shall be
completed in the order set forth therein; and
13
Second, the transactions provided for in Article III shall be
completed in the order set forth therein.
6.2 Consents; Restriction on Assignment. If there are prohibitions
against or conditions to the contribution and conveyance of one or more of the
Conveyed Assets without the prior written consent of third parties, including,
without limitation, governmental agencies (other than consents of a ministerial
nature which are normally granted in the ordinary course of business), which if
not satisfied would result in a material breach of such prohibitions or
conditions or would give an outside party the right to terminate rights of the
party to whom the applicable assets were intended to be conveyed (the
"Beneficial Owner") with respect to such portion of the Conveyed Assets (herein
called a "Restriction"), then any provision contained in this Agreement to the
contrary notwithstanding, the transfer of title to or interest in each such
portion of the Conveyed Assets (herein called the "Restriction Asset") pursuant
to this Agreement shall not become effective unless and until such Restriction
is satisfied, waived or no longer applies. When and if such a Restriction is so
satisfied, waived or no longer applies, to the extent permitted by applicable
law and any applicable contractual provisions, the assignment of the Restriction
Asset subject thereto shall become effective automatically as of the Effective
Time, without further action on the part of any party to this Agreement. Each of
the applicable parties to this Agreement that were involved with the conveyance
of a Restriction Asset agree to use their reasonable best efforts to obtain on a
timely basis satisfaction of any Restriction applicable to any Restriction Asset
conveyed by or acquired by any of them. The description of any portion of the
Conveyed Assets as a "Restriction Asset" shall not be construed as an admission
that any Restriction exists with respect to the transfer of such portion of the
Conveyed Assets. In the event that any Restriction Asset exists, the applicable
party agrees to continue to hold such Restriction Asset in trust for the
exclusive benefit of the applicable party to whom such Restriction Asset was
intended to be conveyed and to otherwise use its reasonable best efforts to
provide such other party with the benefits thereof, and the party holding such
Restriction Asset will enter into other agreements, or take such other action as
it may deem necessary, in order to ensure that the applicable party to whom such
Restriction Asset was intended to be conveyed has the assets and concomitant
rights necessary to enable the applicable party to operate such Restriction
Asset in all material respects as it was operated prior to the Effective Time.
6.3 Costs. The MLP shall pay all sales, use and similar taxes arising
out of the contributions, conveyances and deliveries to be made hereunder, and
shall pay all documentary, filing, recording, transfer, deed, and conveyance
taxes and fees required in connection therewith. In addition, the MLP shall be
responsible for all costs, liabilities and expenses (including court costs and
reasonable attorneys' fees) incurred in connection with the satisfaction or
waiver of any Restriction pursuant to Section 6.2.
6.4 Headings; References; Interpretation. All Article and Section
headings in this Agreement are for convenience only and shall not be deemed to
control or affect the meaning or construction of any of the provisions hereof.
The words "hereof," "herein" and "hereunder" and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole, including
without limitation, all Schedules attached hereto, and not to any particular
provision of this Agreement. All references herein to Articles, Sections, and
Schedules shall, unless the context requires a different construction, be deemed
to be references to the Articles, Sections and
14
Schedules of this Agreement, respectively, and all such Schedules attached
hereto are hereby incorporated herein and made a part hereof for all purposes.
All personal pronouns used in this Agreement, whether used in the masculine,
feminine or neuter gender, shall include all other genders, and the singular
shall include the plural and vice versa. The use herein of the word "including"
following any general statement, term or matter shall not be construed to limit
such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not
non-limiting language (such as "without limitation," "but not limited to," or
words of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that could reasonably fall within
the broadest possible scope of such general statement, term or matter.
6.5 Successors and Assigns. The Agreement shall be binding upon and
inure to the benefit of the parties signatory hereto and their respective
successors and assigns.
6.6 No Third Party Rights. The provisions of this Agreement are
intended to bind the parties signatory hereto as to each other and are not
intended to and do not create rights in any other person or confer upon any
other person any benefits, rights or remedies and no person is or is intended to
be a third party beneficiary of any of the provisions of this Agreement.
6.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
6.8 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of
Texas applicable to contracts made
and to be performed wholly within such state without giving effect to conflict
of law principles thereof, except to the extent that it is mandatory that the
law of some other jurisdiction, wherein the Conveyed Assets are located, shall
apply.
6.9 Severability. If any of the provisions of this Agreement are held
by any court of competent jurisdiction to contravene, or to be invalid under,
the laws of any political body having jurisdiction over the subject matter
hereof, such contravention or invalidity shall not invalidate the entire
Agreement. Instead, this Agreement shall be construed as if it did not contain
the particular provision or provisions held to be invalid, and an equitable
adjustment shall be made and necessary provision added so as to give effect to
the intention of the parties as expressed in this Agreement at the time of
execution of this Agreement.
6.10 Deed; ▇▇▇▇ of Sale; Assignment. To the extent required and
permitted by applicable law, this Agreement shall also constitute a "deed,"
"▇▇▇▇ of sale" or "assignment" of the Conveyed Assets.
6.11 Amendment or Modification. This Agreement may be amended or
modified from time to time only by the written agreement of all the parties
hereto and affected thereby.
6.12 Integration. This Agreement and the instruments referenced herein
supersede all previous understandings or agreements between the parties, whether
oral or written, with respect to its subject matter. This Agreement and such
instruments contain the entire understanding of the parties with respect to the
subject matter hereof and thereof. No understanding, representation, promise or
agreement, whether oral or written, is intended to be or shall be
15
included in or form part of this Agreement unless it is contained in a written
amendment hereto executed by the parties hereto after the date of this
Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
New Gauley Coal Corporation
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
Western Pocahontas Properties Limited
Partnership
By: Western Pocahontas Corporation, its
general partner
Name:
-------------------------------
Title:
------------------------------
Great Northern Properties Limited
Partnership
By: GNP Management Corporation, its
general partner
Name:
-------------------------------
Title:
------------------------------
Ark Land Company
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
Signature Page 1 of 3 to the
Contribution, Conveyance and Assumption Agreement
NNG LLC
By: NRP (Operating) LLC, its sole
operating manager
Name:
-------------------------------
Title:
------------------------------
WPP LLC
By: NRP (Operating) LLC, its sole
operating manager
Name:
-------------------------------
Title:
------------------------------
GNP LLC
By: NRP (Operating) LLC, its sole
operating manager
Name:
-------------------------------
Title:
------------------------------
ACIN LLC
By: NRP (Operating) LLC, its sole
operating manager
Name:
-------------------------------
Title:
------------------------------
▇▇▇▇▇▇▇▇▇ Coal Management LLC
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., its sole
operating manager
Name:
-------------------------------
Title:
------------------------------
Signature Page 2 of 3 to the
Contribution, Conveyance and Assumption Agreement
NRP (Operating) LLC
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
GP Natural Resource Partners LLC
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
NRP (GP) LP
By: GP Natural Resource Partners LLC,
its general partner
Name:
-------------------------------
Title:
------------------------------
Natural Resource Partners L.P.
By: NRP (GP) LP, its general partner
By: GP Natural Resource Partners
LLC, NRP (GP) LP's general
partner
Name:
-------------------------
Title:
-----------------------
Signature Page 3 of 3 to the
Contribution, Conveyance and Assumption Agreement