exv10w1








Exhibit 10.1



 

 











FIRST AMENDED AND RESTATED




OMNIBUS AGREEMENT




among




WESTERN
POCAHONTAS PROPERTIES LIMITED 
PARTNERSHIP




GREAT NORTHERN PROPERTIES LIMITED
 PARTNERSHIP




NEW GAULEY COAL CORPORATION




ROBERTSON COAL MANAGEMENT LLC




GP NATURAL RESOURCE PARTNERS LLC




NRP (GP) LP




NATURAL RESOURCE PARTNERS L.P.

and




NRP (OPERATING) LLC




 

 






 









 












FIRST AMENDED AND RESTATED




OMNIBUS AGREEMENT




     THIS FIRST AMENDED AND RESTATED OMNIBUS AGREEMENT (“Agreement”) is entered into on, and
effective as of, April 22, 2009 among 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”), Robertson Coal Management LLC, a Delaware limited liability
company (“Robertson 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.”



RECITALS:




     1. The Parties, together with Arch Coal, Inc., a Delaware corporation (“Arch”) and Ark Land
Company, a Delaware corporation (“Ark”), entered into that certain Omnibus Agreement (the “Original
Agreement”), dated and effective as of the Closing Date (as defined herein) to evidence their
understanding with respect to (i) 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
and (ii) certain indemnification obligations of the Sponsors in favor of the Partnership Group (as
defined herein).



     2. Arch and Ark no longer hold a membership interest in GP LLC or a limited partner interest
in the General Partner and are no longer Affiliates (as defined herein) of the Partnership. As
such, the Parties desire to amend and restate the Original Agreement in order to remove Arch and
Ark as parties thereto.



     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



1









 







which the Sponsor owns, through one or more intermediaries, 50% or more of the then
outstanding voting securities or ownership interests of such entity.




     “Arch” means Arch Coal, Inc., a Delaware corporation.




     “Ark” means Ark Land Company, a Delaware corporation.




     “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.




     “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.




     “Group Member” is defined in the Partnership Agreement.




     “Limited Partner” is defined in the Partnership Agreement.




     “Partnership Agreement” means the Third Amended and Restated Agreement of Limited
Partnership of Natural Resource Partners L.P., dated as of April 18, 2007, as amended, as in
effect as of the date hereof, 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.




     “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 WPP Group and any Affiliate of the WPP Group, Robertson Coal
Management or Corbin J. Robertson, Jr. and “Sponsors” means the WPP Group and any Affiliate
of the WPP Group, Robertson Coal Management and Corbin J. Robertson, Jr., collectively.



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
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




     (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.




     (b) Restrictions on Controlling Investments in New Entities. For so long as a
Sponsor participates in the control of the General Partner, the Sponsors 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 Sponsors
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.



          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 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
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 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 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;



 









 







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 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 Sponsor) of all
Restricted Businesses owned, operated or invested in by the Sponsor (other than
those owned or operated by the 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 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 Sponsor.



          2.4 Procedures.





     (a)




     (i) If the 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
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 the 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.




     (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. 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 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

Miscellaneous




          3.1 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.




          3.2 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 or at such other address
as such Party may stipulate to the other Parties in the manner provided in this Section 3.2.



if to WPP or NGCC:



Western Pocahontas Properties Limited Partnership or

New Gauley Coal Corporation

Attention: Nick Carter

5620 Irwin Road

Huntington, WV 25705

Telecopy: (304) 522-5401



with a copy to:



Wyatt L. Hogan

601 Jefferson, Suite 3600

Houston, TX 77002

Telecopy: (713) 751-7517



if to GNP:



Great Northern Properties Limited Partnership

Attention: Corbin J. Robertson, Jr.

601 Jefferson, Suite 3600

Houston, TX 77002

Telecopy: (713) 751-7510




 









 







with a copy to:



Wyatt L. Hogan

601 Jefferson, Suite 3600

Houston, TX 77002

Telecopy: (713) 751-7517



if to Robertson Coal Management LLC



Robertson Coal Management LLC

Attention: Corbin J. Robertson, Jr.

601 Jefferson Street, Suite 3600

Houston, TX 77002

Telecopy: (713) 751-7510



with a copy to:



Wyatt L. Hogan

601 Jefferson, Suite 3600

Houston, TX 77002

Telecopy: (713) 751-7517



if to any Group Member:



NRP (GP) LP

Attention: Wyatt L. Hogan

601 Jefferson, Suite 3600

Houston, TX 77002

Telecopy: (713) 751-7517




          3.3 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.




          3.4 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.




          3.5 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.




 









 








          3.6 Assignment. No Party shall have the right to assign its rights or obligations under this Agreement
without the consent of the other Parties hereto.




          3.7 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.




          3.8 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.




          3.9 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.




          3.10 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.




 









 








     IN WITNESS WHEREOF, the Parties have executed this Agreement on, and effective as of the date
first written above.



	 	 	 	 	 
	 	WESTERN POCAHONTAS PROPERTIES LIMITED PARTNERSHIP

 	 
	 	By:  	Western Pocahontas Corporation,
 	 
	 	 	Its General Partner 	 
	 	 	 
	 	By:  	                         /s/ Nick Carter
 	 
	 	 	Name:  	Nick Carter 	 
	 	 	Title:  	President 	 
	 
	 	GREAT NORTHERN PROPERTIES LIMITED PARTNERSHIP

 	 
	 	By:  	GNP Management Corporation,
 	 
	 	 	Its General Partner 	 
	 	 	 
	 	By:  	

/s/ Charles H. Kerr
 	 
	 	 	Name:  	Charles H. Kerr 	 
	 	 	Title:  	Chief Executive Officer and President 	 
	 
	 	NEW GAULEY COAL CORPORATION

 	 
	 	By:  	/s/ Nick Carter
 	 
	 	 	Name:  	Nick Carter 	 
	 	 	Title:  	President 	 
	 
	 	ROBERTSON COAL MANAGEMENT LLC

 	 
	 	By:  	Corbin J. Robertson, Jr.
 	 
	 	 	Its sole member 	 
	 	 	 
	 	By:  	                     /s/ Corbin J. Robertson, Jr.
 	 
	 	 	Name:  	Corbin J. Robertson, Jr. 	 
	 	 	 	 
	 	GP NATURAL RESOURCE PARTNERS LLC

 	 
	 	By:  	/s/ Nick Carter
 	 
	 	 	Name:  	Nick Carter 	 
	 	 	Title:  	President 	 



 









 






	 	 	 	 	 
	 	NRP (GP) LP

 	 
	 	By:  	GP Natural Resource Partners LLC,
 	 
	 	 	Its General Partner 	 
	 	 	 
	 	By:  	                         /s/ Nick Carter
 	 
	 	 	Name:  	Nick Carter 	 
	 	 	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/ Nick Carter
 	 
	 	 	Name:  	Nick Carter 	 
	 	 	Title:  	President 	 
	 
	 	NRP (OPERATING) LLC

 	 
	 	By:  	/s/ Nick Carter
 	 
	 	 	Name:  	Nick Carter 	 
	 	 	Title:  	President