exv10w1






Exhibit 10.1




WAIVER AGREEMENT




     This waiver agreement (the “Waiver Agreement”), is dated as of November 12, 2009, and
relates to that certain First Amended and Restated Omnibus Agreement (the “Agreement”),
dated as of April 22, 2009, among Western Pocahontas Properties Limited Partnership, a Delaware
limited partnership, Great Northern Properties Limited Partnership, a Delaware limited partnership
(“GNP”), New Gauley Coal Corporation, a West Virginia corporation, Robertson Coal
Management LLC, a Delaware limited liability company, GP Natural Resource Partners LLC, a Delaware
limited liability company, NRP (GP) LP, a Delaware limited partnership (including any permitted
successors and assigns under the Partnership Agreement, 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 Waiver Agreement each as a “Party” and collectively as the
“Parties.” Capitalized terms not otherwise defined in this Waiver Agreement are used with the
meanings ascribed to such terms in the Agreement.



RECITALS:




     WHEREAS, Section 2.2(b) of the Agreement provides that any Sponsor may engage, directly or
indirectly, in owning, operating or investing in a Restricted Business that is acquired by a
Sponsor after the Closing Date if (1) the fair market value of such Restricted Business is equal to
or less than $10 million or (2) the fair market value of such Restricted Business is greater than
$10 million and the Partnership Group has been offered the opportunity to purchase such Restricted
Business and has elected not to do so;



     WHEREAS, Section 2.3 of the Agreement provides that 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 may not exceed $75 million in the
aggregate;



     WHEREAS, Section 2.4 of the Agreement provides that 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 offer the
Partnership Group the opportunity to purchase such Restricted Business in accordance with Section
2.4;



     WHEREAS, GNP currently owns the coal reserves in the Otter Creek Tracts (as defined below) and
the Ashland Coal Tracts (as defined below);



     WHEREAS, GNP and Arch Coal, Inc. (“Arch”) have entered into a Memorandum of
Understanding dated as of May 7, 2009 (the “MOU”), regarding the development by Arch of (i)
the Otter Creek Tracts 1, 2 and 3, as described on Schedule 1 to the MOU (the “Otter Creek
Tracts”) and (ii) the Ashland Coal Field, as described on Schedule 2 to the MOU (the
“Ashland Coal Tracts” and, together with the Otter Creek Tracts, the “MOU
Properties”);



     WHEREAS, the MOU contemplates that GNP and Arch will enter into (i) a lease agreement (the
“Otter Creek Lease”) whereby Arch will lease from GNP all of GNP’s coal



 









 





interests in the Otter Creek Tracts in exchange for a lease execution bonus payment and certain ongoing royalty
payments, and (ii) an option agreement (the “Option”) that will provide Arch the option to
enter into a lease agreement (the “Ashland Lease”) whereby Arch will lease from GNP all or
a part of GNP’s coal interests in the Ashland Coal Tracts;




     WHEREAS, the Parties acknowledge that the development of the MOU Properties is likely to be a
long-term process and that certain information regarding coal prices, coal quality and production
rates, project timing, and other important economic and operational information is currently
unknown and difficult to forecast;



     WHEREAS, the absence of such information creates difficulty in determining an appropriate
value for the MOU Properties and the Parties hereby desire to waive the requirements of Sections
2.2, 2.3 and 2.4 of the Agreement on the terms set forth herein; and



     WHEREAS, pursuant to Section 3.5 of the Agreement, the Agreement may only be amended or
modified by the written agreement from all the parties thereto.



WAIVER




     In that regard, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as follows:



     1. Acknowledgement of Offer Requirement. The Parties acknowledge that the
consummation of the Otter Creek Lease, the Option and the Ashland Lease will trigger the offer
requirements under Sections 2.2 and 2.4 of the Agreement and, without this Waiver Agreement, GNP
would be required to offer the Otter Creek Tracts and the Ashland Coal Tracts to the Partnership
and the OLLC upon the execution of each of the Otter Creek Lease, the Option and the Ashland Lease,
respectively.



     2. Waiver. Subject to the terms and conditions contained herein, the Parties hereby
waive the provisions of Sections 2.2, 2.3 and 2.4 of the Agreement (the “Waiver”), such
Waiver to be effective solely for the Otter Creek Lease, the Option and the Ashland Lease on
substantially the terms set forth in the MOU as of the effective dates of the Otter Creek Lease,
the Option and the Ashland Lease, respectively.



     3. Termination of Waiver. The Waiver will terminate and the provisions of Sections
2.2, 2.3 and 2.4 of the Agreement, as applied to each of the Otter Creek Lease and the Ashland
Lease, will automatically be reinstated without any further action by the Parties hereto, as
follows:


          (a) as to the Otter Creek Lease, upon the cumulative production of 10,000,000 tons of coal
from the Otter Creek Tracts constituting “Leased Premises” as defined in Section 2 and more
accurately described in Schedule “3” of the MOU, at which point GNP will be required
to offer the Otter Creek Tracts to the Partnership and the OLLC pursuant to the procedures set
forth in Section 2.4 of the Agreement; and


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          (b) as to the Ashland Lease, upon the cumulative production of 10,000,000 tons of coal from
the Otter Creek Tracts constituting “Leased Premises” as defined in Section 2 and more accurately
described in Schedule “3” of the MOU, at which point GNP will be required to offer the Ashland Coal
Tracts to the Partnership and the OLLC pursuant to the procedures set forth in Section 2.4 of the
Agreement (without regard subsection (c) thereof); provided, that if the Partnership and the OLLC
determine not to pursue the purchase of the Ashland Coal Tracts at such time, this Waiver shall
continue until the cumulative production of 10,000,000 tons of GNP owned coal from the Ashland Coal
Tracts, at which point GNP will be required to offer the Ashland Coal Tracts to the Partnership and
the OLLC pursuant to the procedures set forth in Section 2.4 of the Agreement.



     4. Limited Waiver. The Waiver is limited to the effects of the Otter Creek Lease and
the Ashland Lease under Sections 2.2, 2.3 and 2.4 of the Agreement, and does not waive any other
provisions of the Agreement nor the effects of any past, present or future transactions.



     5. Transfers of Interest.


          (a) GNP hereby covenants and agrees that, until the Waiver is terminated pursuant to Section
3(a) of this Waiver Agreement, it will not sell, assign, sublease, mortgage, pledge or otherwise
transfer or encumber the Otter Creek Lease or any rights, interests or estates created by the Otter
Creek Lease or all or any portion of the Otter Creek Tracts without the prior written consent of
the Partnership;


          (b) GNP hereby covenants and agrees that, until the Waiver is terminated pursuant to Section
3(b) of this Waiver Agreement, it will not sell, assign, sublease, mortgage, pledge or otherwise
transfer or encumber the Ashland Lease or any rights, interests or estates created by the Ashland
Lease or all or any portion of the Ashland Coal Tracts without the prior written consent of the
Partnership.



     6. Choice of Law; Submission to Jurisdiction. This Waiver 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 Waiver 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.



     7. Notice. All notices or requests or consents provided for by, or permitted to be
given pursuant to, this Waiver Agreement must be in writing and must be given by depositing same in
the United States mail, addressed to the Party 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 Waiver Agreement shall be sent to or made at the address set
forth in the Agreement.



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     8. Entire Agreement. This Waiver 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.



     9. Amendment or Modification. This Waiver Agreement may be amended or modified from
time to time 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 Waiver 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 Waiver
Agreement.



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



     11. Counterparts. This Waiver 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.



     12. Severability. If any provision of this Waiver Agreement shall be held invalid or
unenforceable by a court or regulatory body of competent jurisdiction, the remainder of this Waiver
Agreement shall remain in full force and effect.



     13. Further Assurances. In connection with this Waiver Agreement and all transactions
contemplated by this Waiver 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 Waiver Agreement and all such transactions.



     14. Rights of Limited Partners. The provisions of this Waiver Agreement are
enforceable solely by the Parties to this Waiver Agreement, and no limited partner of the
Partnership shall have the right, separate and apart from the Partnership, to enforce any provision
of this Waiver Agreement or to compel any Party to this Waiver Agreement to comply with the terms
of this Waiver Agreement.



[Signature page follows.]








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     IN WITNESS WHEREOF, the parties have executed this Waiver Agreement as of the date first above
written.



	 	 	 	 	 
	 	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:  	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. 	 



[Signature Page to Waiver Agreement]






 









 








	 	 	 	 	 
	 	GP NATURAL RESOURCE PARTNERS LLC 

 	 
	 	By:  	

/s/ Nick Carter
 	 
	 	 	Name:  	Nick Carter 	 
	 	 	Title:  	President and Chief Operating Officer 	 
	 
	 	NRP (GP) LP



By: GP Natural Resource Partners LLC,

Its General Partner

 	 
	 	By:  	/s/ Nick Carter
 	 
	 	 	Name:  	Nick Carter 	 
	 	 	Title:  	President and Chief Operating Officer 	 
	 
	 	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 and Chief Operating Officer 	 
	 
	 	NRP (OPERATING) LLC

 	 
	 	By:  	/s/ Nick Carter
 	 
	 	 	Name:  	Nick Carter 	 
	 	 	Title:  	President and Chief Operating Officer 	 



[Signature Page to Waiver Agreement]