exv10w1






Exhibit 10.1




AMENDMENT NO. 2 TO PURCHASE AND SALE AGREEMENT




     THIS AMENDMENT NO. 2 TO PURCHASE AND SALE AGREEMENT (this “Agreement”) dated as of October 4,
2010 is by and between WPP LLC, a Delaware limited liability company (“WPP” or “Buyer”) and Colt
LLC, a West Virginia limited liability company (“Seller”). WPP and Seller are sometimes referred
to collectively herein as the “Parties” and individually as a “Party.”



RECITALS




     WHEREAS, the Parties entered into that certain Purchase and Sale Agreement dated September 10,
2009 which was amended by the Parties by that certain Amendment No. 1 to Purchase and Sale
Agreement dated as of July 29, 2010 (“PSA”); and



     WHEREAS, the Parties desire to further amend certain provisions of the PSA.



     NOW, THEREFORE, in consideration of the mutual promises contained herein, the benefits to be
derived by each Party hereunder and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:



     1. Section 2.1 of the PSA is deleted and restated as follows:




	 	2.1	 	Purchase and Sale of Assets. Subject to the terms and
conditions of this Agreement, Seller agrees to sell to WPP, and WPP agrees to
purchase from Seller, all (regarding the Mineral Properties and the Mineral
Records) or certain parts (regarding the Leases) of Seller’s right, title and
interest in the following (collectively, the “Assets"):
	 
	 	(a)	 	the Mineral Properties;
	 
	 	(b)	 	the Leases; and
	 
	 	(c)	 	the Mineral Records.





     2. Sections 2.3 (c), (d), (f) and (h) of the PSA are deleted and restated as follows:




	 	(c)	 	At the later of (i) January 13, 2011 and (ii) five (5) days
after Buyer’s receipt of written notice from Seller of Event 3 (“Closing 3”),
Buyer shall pay Seller an aggregate of $70,000,000 by wire transfer of
immediately available funds to the same account or to another account
designated by Seller not less than two days before such payment for the
purchase of the Mineral Properties identified on Schedule 2.3(c) by
special warranty deed in substantially the form attached as Exhibit B
(the “Mineral Deed 3”) and the related Mineral Records; provided that within
such five-day period Buyer




 









 






	 	 	 	shall have verified the occurrence of Event 3; and Buyer shall promptly
notify Seller in writing of such verification;






	 	(d)	 	On October 4, 2010 (“Closing 4”), Buyer shall pay Seller an
aggregate of $25,000,000 by wire transfer of immediately available funds to
the same account or to another account designated by Seller not less than two
days before such payment for (i) the purchase of the Mineral Properties
located in Montgomery County, Illinois identified on Schedule 2.3(d)
by special warranty deed in substantially the form attached as Exhibit
B (the “Mineral Deed 4”) and the related Mineral Records and (ii) the
assignment of the Mineral Properties located in Bond County, Illinois
identified on Schedule 2.3(d) by a Partial Assignment and Assumption
of Lease in substantially the form attached as Exhibit E (the “Mineral
Assignment 4”);
	 
	 	(f)	 	Five (5) days after Buyer’s receipt of written notice from
Seller of Event 6 (“Closing 6”), Buyer shall pay Seller an aggregate of
$40,000,000 by wire transfer of immediately available funds to the same
account or to another account designated by Seller not less than two days
before such payment for (i) the purchase of the Mineral Properties located in
Montgomery County, Illinois identified on Schedule 2.3(f) by special
warranty deed in substantially the form attached as Exhibit B (the
“Mineral Deed 6”) and the related Mineral Records and (ii) the assignment of
the Mineral Properties located in Bond County, Illinois identified on
Schedule 2.3(f) by a Partial Assignment and Assumption of Lease in
substantially the form attached as Exhibit E (the “Mineral Assignment
6”); provided that within such five-day period Buyer shall have verified such
completion; and Buyer shall promptly notify Seller in writing of such
verification;
	 
	 	(h)	 	At the later of (i) January 9, 2012, and (ii) the payment
date described in Section 2.3(g) (“Closing 8”), Buyer shall pay Seller an
aggregate of $15,000,000 by wire transfer of immediately available funds to
the same account or to another account designated by Seller not less than two
days before such payment for (i) the purchase of the Mineral Properties
located in Montgomery County, Illinois identified on Schedule 2.3(h)
by special warranty deed in substantially the form attached as Exhibit
B (the “Mineral Deed 8”) and the related Mineral Records and (ii) the
assignment of the Mineral Properties located in Bond County, Illinois
identified on Schedule 2.3(h) by a Partial Assignment and Assumption
of Lease in substantially the form attached as Exhibit E (the “Mineral
Assignment 8”).





     3. Section 2.6(a)(vii) of the PSA is deleted and restated as follows:



 









 






	 	(vii)	 	with respect to Closing 4, Closing 6 and Closing 8, execute
and deliver to WPP the Partial Assignment and Assumption of Leases in
substantially the form attached as Exhibit E (the “Partial Assignment
and Assumption of Leases") and;





     4. Sections 2.6(b)(i) and (ii) of the PSA are deleted and restated as follows:




	 	(i)	 	deliver to Seller an amendment to the Coal Mining Lease
adding as a schedule thereto the Applicable Mineral Properties referenced in
Mineral Deed 2, Mineral Deed 3, Mineral Deed 4, Mineral Deed 5, Mineral Deed
6, Mineral Deed 7, and Mineral Deed 8, and Mineral Assignment 4, Mineral
Assignment 6 and Mineral Assignment 8, as applicable;
	 
	 	(ii)	 	execute and deliver to Seller Buyer’s executed counterpart to
any other Applicable Transaction Document, including the Partial Assignments
and Assumptions of Leases with respect to Closing 4, Closing 6 and Closing 8,
to which Buyer is a party and executed in conjunction with the Subsequent
Closing;





     5. The definition of “Assignment and Assumption of Leases” appearing on Exhibit A to the PSA
is deleted and restated as follows:




“Partial Assignment and Assumption of Leases” has the meaning set forth in Section
2.6(a)(vii).



     6. The definition of “Leases” appearing on Exhibit A to the PSA is deleted and restated as
follows:




“Leases” means all leases of any of the minerals, servitudes, easements, roads,
rights of access, ingress, egress and rights of way relating or appurtenant to or
useful in connection with the Mineral Properties, including those leases described
or listed in Schedule 3.2(a) but only as such leases pertain or relate to
the tracts set forth and described in each Partial Assignment and Assumption of
Leases referenced in Sections 2.3(d), 2.3(f) and 2.3(h).



     7. The definition of “Mineral Properties” appearing on Exhibit A to the PSA is deleted and
restated as follows:




“Mineral Properties” means certain coal reserves located in Montgomery County,
Illinois as more particularly identified in the Mineral Deeds and set forth on
Schedule 2.3(a) though Schedule 2.3(h) (inclusive), and certain coal reserves
located in Bond County, Illinois as more particularly identified in the Leases but
only in those tracts set forth and described in each Partial Assignment and
Assumption of Leases referenced in Sections 2.3(d), 2.3(f) and 2.3(h).



 









 





     8. Page “iii” of the PSA is deleted and replaced with a new Page iii which is attached to this
Amendment No. 2 to Purchase and Sale Agreement as “ANNEX 1”.



     9. A form of the “Partial Assignment and Assumption of Leases”, which is replacing the
now-deleted “Assignment and Assumption of Leases”, is attached to this Amendment No. 2 to Purchase
and Sale Agreement as “ANNEX 2”.



     10. Except as expressly amended hereby, all other terms and provisions of the PSA continue in
full force and effect.



 









 




IN WITNESS WHEREOF, the Parties hereto have executed this Amendment No. 2 to Purchase and Sale
Agreement as of the date first above written.




	 	 	 	 	 	 	 

	 	 	BUYER:	 	 
	 
	 	 	 	 	 	 
	 	 	WPP LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	NRP (Operating) LLC, its sole member,
	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kevin F. Wall	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Kevin F. Wall	 	 
	 

	 	Title:
	 	Executive Vice President — Operations	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	SELLER:	 	 
	 
	 	 	 	 	 	 
	 	 	COLT LLC	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Donald Holcomb	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Donald Holcomb	 	 
	 

	 	Title:
	 	Authorized Person	 	 






 









 






ANNEX 1



EXHIBITS




	 	 	 

	Exhibit A:

	 	Definitions
	 
	 	 
	Exhibit B:

	 	Form of Mineral Deed
	 
	 	 
	Exhibit C:

	 	Form of Mineral Bill of Sale (Mineral Records)
	 
	 	 
	Exhibit D:

	 	Form of Coal Mining Lease
	 
	 	 
	Exhibit E:

	 	Form of Partial Assignment and Assumption of Leases






SCHEDULES




	 	 	 
	Schedule 2.3(a)

	 	Mineral Properties to be purchased at Closing
	 
	 	 
	Schedule 2.3(b)

	 	Mineral Properties to be purchased at Closing 2
	 
	 	 
	Schedule 2.3(c)

	 	Mineral Properties to be purchased at Closing 3
	 
	 	 
	Schedule 2.3(d)

	 	Mineral Properties to be purchased or assigned at Closing 4
	 
	 	 
	Schedule 2.3(e)

	 	Mineral Properties to be purchased at Closing 5
	 
	 	 
	Schedule 2.3(f)

	 	Mineral Properties to be purchased or assigned at Closing 6
	 
	 	 
	Schedule 2.3(g)

	 	Mineral Properties to be purchased at Closing
	 
	 	 
	Schedule 2.3(h)

	 	Mineral Properties to be purchased or assigned at Closing 8
	 
	 	 
	Schedule 3.2(a)

	 	Leases






iii






 









 








ANNEX 2




FORM OF PARTIAL ASSIGNMENT AND ASSUMPTION OF LEASE




	 	 	 	 	 	 

	PREPARED BY:
	 	 	 	 	 
	 
	 	 	 	 	 
	Bailey & Glasser, LLP
	 	 	 	 	 
	209 Capitol Street
	 	 	 	 	 
	Charleston, WV 25301
	 	 	 	 	 
	 
	 	 	 	 	 
	AFTER RECORDING
	 	 	 	 	 
	RETURN TO AND SEND
	 	 	 	 	 
	TAX STATEMENTS TO:
	 	 	 	 	 
	 
	 	 	 	 	 
	WPP LLC
	 	 	 	 	 
	5260 Irwin Road
	 	 	 	 	 
	Huntington, WV 25705
	 	 	 	 	 
	 
	 	 	 	 	 
	 	 	 	 
	 

	 	 	 
	 	RECORDER’S STAMP






	 	 	 

	STATE OF ILLINOIS

	 	§
	 

	 	§
	COUNTY OF MONTGOMERY

	 	§






     THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF LEASE (“Assignment”) is made this _____ day of
___________________, 2010 (“Closing Date”) pursuant to that certain Purchase and Sale Agreement
dated September 10, 2009, as amended (the “Agreement”), and is from Colt LLC, a West Virginia
limited liability company with an address of 3801 PGA Boulevard, Suite 903, Palm Beach Gardens,
Florida 33410 (“Assignor”), to WPP LLC, a Delaware limited liability company with an address of
5260 Irwin Road Huntington, West Virginia 25705 (“Assignee”).



     RECITALS:



     WHEREAS, Assignor and Assignee entered into the Agreement; and



     WHEREAS, as of the Closing Date, Assignor is assigning and conveying to Assignee certain of
Assignor’s interests in those certain real property assets related to the Hillsboro Mine in
Montgomery County, Illinois which are identified on “EXHIBIT A” attached hereto (all referred to
herein as “Leases”); and



     WHEREAS, in accordance with the terms of this Assignment and the Agreement, Assignor desires
to assign to Assignee all of its right, title and interest in, to and under those specified tracts
or parcels of the Leases described in “EXHIBIT A” attached hereto



 









 




and incorporated herein by this reference (“Assigned Tracts”), and Assignee, subject to the
terms and conditions of the Agreement and the Coal Mining Lease and Sublease Agreement by and
between Assignor and Assignee dated as of September 10, 2009, as amended (“Coal Mining Lease”),
desires to assume all obligations of Assignor under said Leases but only as they pertain or relate
to the Assigned Tracts arising after the date of this Assignment.




     NOW, THEREFORE, for and in consideration of the foregoing and other valuable consideration,
the receipt and legal sufficiency of which are hereby acknowledged:



     1. Assignor hereby assigns, transfers, conveys, grants and signs over unto Assignee all right,
title and interest of Assignor in the Assigned Tracts.



     2. Assignor represents and warrants to Assignee that, except as previously disclosed to
Assignee in writing, each of the Leases is valid and subsisting, there is no default under any of
the Leases and all payments required under each of the Leases has been made.



     3. This Assignment is made subject to the terms and conditions of the Agreement and the Coal
Mining Lease, and Assignee hereby accepts such assignment and agrees to perform all obligations of
Assignor under such Leases as they pertain or relate to the Assigned Tracts occurring after Closing
Date.



     4. The provisions of this Assignment shall be binding upon, and shall inure to the benefit of
the parties hereto, and their respective successors and assigns.



     5. This Assignment may be executed in one or more counterparts, each of which shall constitute
an original, but all of which together shall constitute one and the same instrument.



     6. This Assignment is subject to the terms of the Agreement including but not limited to
assumption of liability and indemnification provisions therein. Any capitalized terms in this
Assignment not defined herein have the meaning given to them in the Agreement.



     In the event of a conflict between the terms of this Assignment and the Agreement, the terms
of the Agreement shall prevail.



[Signature Page and Acknowledgements Follow]



 









 





	 	 	 	 	 	 	 	 	 

	ASSIGNOR:  	 	ASSIGNEE:
	 
	 	 	 	 	 	 	 	 
	COLT LLC	 	WPP LLC
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	NRP (OPERATING) LLC
	By:	 	 	 	Its:	 	Sole Member
	 

	 	 	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	 	 	 	 	By:
	 	 
	 

	 	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Title:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Date:	 	 
	 

	 	 	 	 	 	 	 	 





 









 






ACKNOWLEDGEMENTS




	 	 	 	 	 	 	 

	STATE OF

	 	 	)	 	 	 
	 

	 	 	)	 	 	SS:
	COUNTY OF

	 	 	)	 	 	 






     I, ________________________, a Notary Public in and for the County and State aforesaid, do
hereby certify that ________________________, the ______________________ of NRP (OPERATING) LLC
which is the sole member of WPP LLC, a Delaware limited liability company, personally known to me
to be the same person whose name is subscribed to the foregoing instrument as such
____________________ of NRP (OPERATING) LLC which is sole member of WPP LLC, appeared before me
this day in person and acknowledged that he signed and delivered said instrument as his own free
and voluntary act and as the free and voluntary act of said limited liability company for the uses
and purposes therein set forth.



     GIVEN under my hand and notarial seal this _____ day of ________________, 2010.



	 	 	 	 	 

	 
	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 

	 	Notary Public	 	 
	 
	 	 	 	 
	 

	 	My Commission Expires:	 	 
	 

	 	 	 	 





	 	 	 	 	 	 	 

	STATE OF

	 	 	)	 	 	 
	 

	 	 	)	 	 	SS:
	COUNTY OF

	 	 	)	 	 	 






     I, ________________________, a Notary Public in and for the County and State aforesaid, do
hereby certify that __________________________, the ___________________________ of Colt LLC, a West
Virginia limited liability company, personally known to me to be the same person whose name is
subscribed to the foregoing instrument as such _____________________________, appeared before me
this day in person and acknowledged that he signed and delivered said instrument as his own free
and voluntary act and as the free and voluntary act of said limited liability company for the uses
and purposes therein set forth.



     GIVEN under my hand and notarial seal this _____ day of ___________________, 2010.



	 	 	 	 	 

	 
	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 

	 	Notary Public	 	 
	 
	 	 	 	 
	 

	 	My Commission Expires:
	 	 
	 

	 	 	 	 





 









 





EXHIBIT A




List and describe “Assigned Tracts” and “Leases”