exv10w1



 






Exhibit 10.1




PURCHASE AND SALE AGREEMENT




between




PLUM CREEK TIMBERLANDS, L.P.




and




WPP LLC




Dated




January 28, 2005




 









 








	 	 	 
	 
	Table Of Contents

	 





	 	 	 	 	 	 	 
	ARTICLE I.

	 	DEFINITIONS AND REFERENCES
	 	 	1	 
	ARTICLE II.

	 	PROPERTY TO BE SOLD AND PURCHASED
	 	 	4	 
	ARTICLE III.

	 	PURCHASE PRICE
	 	 	6	 
	ARTICLEIV.

	 	REPRESENTATIONS AND WARRENTIES OF SELLER
	 	 	7	 
	ARTICLE V.

	 	REPRESENTATIONS AND WARRANTIES OF BUYER
	 	 	13	 
	ARTICLE VI.

	 	CERTAIN COVENANTS OF BUYER AND SELLER PENDING CLOSING
	 	 	15	 
	ARTICLE VII.

	 	DUE DILIGENCE EXAMINATION
	 	 	16	 
	ARTICLE VIII.

	 	CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTIES TO CLOSE
	 	 	20	 
	ARTICLE IX.

	 	CLOSING OF TRANSATION
	 	 	22	 
	ARTICLE X.

	 	OTHER AGREEMENTS
	 	 	23	 
	ARTICLE XI.

	 	SURFACE DAMAGES
	 	 	23	 
	ARTICLE XII.

	 	POST CLOSING OBLIGATIONS
	 	 	24	 
	ARTICLE XIII.

	 	CASUALTY LOSS
	 	 	25	 
	ARTICLE XIV.

	 	NOTICES
	 	 	25	 
	ARTICLE XV.

	 	TERMINATION
	 	 	26	 
	ARTICLE XVI.

	 	COMMISSIONS
	 	 	28	 
	ARTICLE XVII.

	 	MISCELLANEOUS MATTERS
	 	 	28	 
	ARTICLE XVIII.

	 	ARBITRATION
	 	 	32	 






	 	 	 
	 
	Table Of Exhibits

	 





	 	 	 
	Exhibit A

	 	Description of Coal Property to be Sold
	Exhibit B

	 	Description of Surface Property to be Sold
	Exhibit 2.1(c)

	 	Existing Coal Leases
	Exhibit 2.1(e)

	 	Existing Leases and Encumbrances
	Exhibit 4.6

	 	Schedule of Pending Litigation
	Exhibit 9.2(a)

	 	Deed of Conveyance
	Exhibit 9.2(d)

	 	Affidavit of Non-Foreign Status







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PURCHASE AND SALE AGREEMENT




     THIS PURCHASE AND SALE AGREEMENT dated January 28, 2005, is made by and between PLUM CREEK
TIMBERLANDS, L.P., a Delaware limited partnership (“SELLER”), and WPP LLC,
a Delaware limited liability company (“BUYER”).



W I T N E S E T H:




     WHEREAS, SELLER desires to sell, bargain, assign, transfer and convey to BUYER, and BUYER
desires to purchase and accept, SELLER’s interest in certain Properties as hereinafter defined; and



     NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein,
SELLER and BUYER do hereby agree as follows:



ARTICLE I.




Definitions and References




     Section 1.1 Certain Defined Terms. When used in this Agreement, the following terms shall have the
respective meanings assigned to them in this Section 1.1:



     “Agreement” shall mean this Agreement, as hereafter changed, amended or modified in accordance
with the terms hereof.



     “Code” shall mean the Internal Revenue Code, of 1986, as amended from time to time, and any
successor statute thereto.



     “Escrow Agent” shall mean Marshall Miller & Associates, Inc.



     “Hazardous Material” shall mean any hazardous material, hazardous wastes, or hazardous or
toxic substances as defined in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. §§ 9601 et seq.), the Resource Conservation and
Recovery Act, as



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amended, (42 U.S.C. §§ 6901 et seq.) (“CERCLA”), and the Toxic Substances
Control Act, as amended (15 U.S.C. §§ 2601 et seq.).



     “Knowledge of SELLER” The phrase “to the knowledge of SELLER”, or similar words or phrases,
shall mean to the actual knowledge of Erwin Barger, Russell Hagen or James Fatony, without a duty
of inquiry.



     “Material Adverse Effect” The phrase “material adverse effect’ or similar words or phrases
shall mean an adverse condition pertaining to the Properties which either reduces the value of the
Properties by an amount exceeding five percent of the Purchase Price or requires remedial action at
an anticipated expense of greater than five percent of the Purchase Price.



     “Securities Act” shall mean the Securities Act of 1933, as amended, and all rules
and regulations under such Act.



     “Tax” or “Taxes” shall mean any state or local ad valorem (including without limitation any
unmined mineral taxes required to be assessed under state law) real property or personal property
tax, including any interest, penalty or addition thereto, whether disputed or not.



     “Tax Return” shall mean any return, declaration, report, claim for refund, or information
return or statement relating to Taxes, including any schedule or attachment thereto, including any
amendment thereof and including further, without limitation, any unmined mineral taxes required to
be filed under state law.



     Section 1.2 References, Titles and Construction.




     (a) All references in this Agreement to articles, sections, subsections and other
subdivisions refer to corresponding articles, sections, subsections and other subdivisions
of this Agreement unless expressly provided otherwise.



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     (b) Titles appearing at the beginning of any of such subdivisions are for convenience
only and shall not constitute part of such subdivisions and shall be disregarded in
construing the language contained in such subdivisions.




     (c) The words “this Agreement”, “this instrument”, “herein”, “hereof”, “hereby”,
“hereunder” and words of similar import refer to this Agreement as a whole and not to any
particular subdivision unless expressly so limited.




     (d) Words in the singular form shall be construed to include the plural and
vice versa, unless the context otherwise requires. Pronouns in masculine,
feminine and neuter genders shall be construed to include any other gender.




     (e) Unless the context otherwise requires or unless otherwise provided herein, the
terms defined in this Agreement which refer to a particular agreement, instrument or
document also refer to and include all renewals, extensions, modifications, amendments or
restatements of such agreement, instrument or document, provided that nothing contained in
this subsection shall be construed to authorize such renewal, extension, modification,
amendment or restatement.




     (f) Examples shall not be construed to limit, expressly or by implication, the matter
they illustrate.




     (g) The word “or” is not intended to be exclusive and the word “includes” and its
derivatives means “includes, but is not limited to” and corresponding derivative
expressions.




     (h) No consideration shall be given to the fact or presumption that one party had a
greater or lesser hand in drafting this Agreement.




     (i) All references herein to “$” or “dollars” shall refer to U.S. Dollars.




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     (j) Each of the Exhibits listed on Table of Exhibits is attached and each such
exhibit is incorporated herein by reference for all purposes and references to this
Agreement shall also include such exhibit unless the context in which used shall otherwise
require.



ARTICLE II.




Property to be Sold and Purchased




     Section 2.1 Property to be Sold and Purchased. SELLER agrees to sell and BUYER agrees
to purchase, for the consideration hereinafter set forth, and subject to the terms and provisions
herein contained, the following described properties, rights and interests:




	 	(a)  	     All right, title and interest of SELLER in and to the coal in, on or under
the real property described on Exhibit “A”, and to the extent owned by SELLER
any and all rights appurtenant thereto or useful in connection with the enjoyment and
mining thereof or which BUYER and its successors and assigns deem necessary or
convenient for the full and free use and extraction of the coal and the exercise of
the estates to be transferred hereunder, and together with all rights of ingress and
egress for the purpose of prospecting and exploring by any means, and for the purpose
of extracting, mining, developing, producing, treating and processing coal by all
methods (including, without limitation mining by strip, auger, open pit, in-situ
combustion, solution, and underground methods), and of erecting, operating,
maintaining and working any mining, extraction, production, treatment or processing
facility by all procedures, whether such means, methods, or procedures are now known
or hereafter discovered, or taking out, storing, stockpiling, removing, transporting
and marketing said coal, together with the right to commingle coal produced from the
real property described in Exhibit A with coal, minerals or other materials produced
from any other property and to use the real property described in Exhibit A for any
of the aforesaid activities with respect to coal, minerals or other




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	 	   	materials from
other property when related to like activities involving coal produced from the
real property described in Exhibit A; together with a perpetual easement to
construct, maintain and use surface and underground haul ways, pipelines, conduits
and passageways on, through and under the real property described in Exhibit A for
the transportation of coal, other minerals, materials, equipment, supplies and
persons and other tangible property (the “Coal Property”);
	 
	 	(b)  	     All right, title and interest of SELLER in and to the surface of the real
property described on Exhibit “B” (the “Surface Property”).






     (The Coal Property and the Surface Property are sometimes hereinafter collectively
referred to as the “Properties.”)




	 	(c)  	     All right, title and interest of SELLER in and to the Leases listed and
identified as coal leases in Exhibit 2.1(c) (the “Leases”).
	 
	 	(d)  	     All maps, files, reserve information, environmental information and other
similar materials pertaining to the Properties (the “Records”).
	 
	 	(e)  	     All rights reserved or retained by the lessor in those various leases listed
in Exhibit 2.1(e) and identified as non-coal leases which are appurtenant to,
for the benefit of, or useful in connection with the enjoyment of the Properties and
the estates and interests being sold hereunder (specifically excluding the right to
receive royalties and those items set forth in Section 2.2). SELLER agrees to
execute such additional documents as may be reasonably required by BUYER to allow
BUYER to exercise such “non-coal lease” rights.





It is the intention of the BUYER and SELLER that, subject only to (i) the rights of the lessee(s)
under existing oil and gas or other leases covering the Coal Property and (ii) the rights of
current surface owners other than SELLER with respect to the Coal Property, coal shall be the
dominant estate and the exercise
of oil and gas, surface and other rights shall not unreasonably interfere with the





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operations
relating to the mining, production, treatment, transportation of coal or other use of the Coal
Property by the BUYER, its successors and assigns.




     Section 2.2 Excluded Assets. All assets of SELLER on the Closing Date not referred to in
Section 2.1 (the “Excluded Assets”) shall be retained by SELLER, and shall not be
transferred to or purchased by BUYER. Without limiting the generality of the foregoing, BUYER
shall not purchase from SELLER:




	 	(a)  	all oil, gas, coalbed methane and other hydrocarbons, regardless of gravity
produced in liquid or gaseous form and all substances necessarily produced in
association with such oil, gas and other liquid or gaseous hydrocarbons together with
the rights of ingress and egress for the purpose of prospecting and exploring by any
means and for the purpose of drilling, extracting, developing, producing, treating,
processing and transporting by all methods whether such methods are now known or
hereinafter discovered.
	 
	 	(b)  	any of the accounts receivable due, generated by or in connection with the
Properties on or prior to the Closing Date;
	 
	 	(c)  	all prepaid and deferred items or credits and deposits, rights of offset and
credits and claims for refund generated or incurred by or in connection with the
Properties prior to the Closing Date;
	 
	 	(d)  	any rights to any trademarks, service marks or trade names (including use of
the names “Plum Creek”, or any derivations thereof and associated logos), any
applications therefore, or any other intellectual property of SELLER or its affiliates
or suppliers; and
	 
	 	(e)  	any claims for refunds of taxes and other governmental charges or assessments
arising from or pertaining to periods, activities, operations or events occurring on
or prior to the Closing Date.





ARTICLE III.




Purchase Price




     Section 3.1 Purchase Price. In consideration of the sale of the Properties by SELLER
to BUYER, BUYER shall pay to SELLER at Closing cash



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in the amount of Twenty Two Million Dollars
($22,000,000.00) (the “Purchase Price”). The Purchase Price may be adjusted as provided in Section
7.2, Section 7.4 and in Article X (the Purchase Price, as so adjusted, and as the same may be
otherwise adjusted by the mutual agreement of the parties, being called the “Adjusted Purchase
Price”).




     Section 3.2 Earnest Money. BUYER has paid to Escrow Agent, the sum of One Million One
Hundred Thousand Dollars ($1,100,000.00) as earnest money (“Earnest Money"). Escrow Agent shall
hold and disburse the Earnest Money in accordance with the terms and provisions of this Agreement.
The Earnest Money (including interest earned thereon) shall be refunded to BUYER (i) at Closing; or
(ii) if the transaction contemplated by this Agreement fails to close as a result of SELLER’s
breach.



ARTICLE IV.




Representations and Warranties of SELLER




     SELLER represents to BUYER, with respect to itself only, as of the date of this Agreement ,
that:



     Section 4.1 Organization and Existence. SELLER is duly organized, validly existing,
and in good standing under the laws of the State of Delaware. SELLER is duly qualified to transact
business and is in good standing in the State of West Virginia and the Commonwealths of Virginia
and Kentucky.



     Section 4.2 Power and Authority. SELLER has the power and authority to execute,
deliver, and perform this Agreement, and each other agreement, instrument, or document executed or
to be executed by SELLER in connection with the transaction contemplated hereby and to consummate
the transactions contemplated hereby and thereby. The
execution, delivery, and performance by SELLER of this Agreement, and each other agreement,
instrument, or document executed or to be executed by SELLER in connection with the transactions
contemplated hereby and the consummation of the transactions contemplated hereby and thereby, will
have been duly authorized by all necessary action of SELLER.



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     Section 4.3 Valid and Binding Agreement. This Agreement has been duly executed and
delivered by SELLER and constitutes a valid and legally binding obligation of SELLER, enforceable
in accordance with its terms, except that such enforceability may be limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors’ rights
generally and (b) equitable principles which may limit the availability of certain equitable
remedies (such as specific performance) in certain instances. Each agreement, instrument or
document executed or to be executed in connection with this Agreement will constitute, a valid and
legally binding obligation of SELLER enforceable against it in accordance with its respective
terms, except that such enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium, and similar laws affecting creditors’ rights generally and (b)
equitable principles which may limit the availability of certain equitable remedies (such as
specific performance) in certain instances.



     Section 4.4 Non-Contravention. Other than requirements (if any) that there be
obtained consents to assignment from third parties, neither the execution, delivery, and
performance by SELLER of this Agreement, and each other agreement, instrument, or document executed
or to be executed by SELLER in connection with the transactions contemplated hereby, nor the
consummation by SELLER of the transactions contemplated hereby and thereby, do or will (a)
conflict with or result in a violation of any provision of the charter, bylaws or other governing
instruments of SELLER, (b) conflict with or result in a violation of any provision of, or
constitute (with or without the giving of notice or the passage of time or both) a default under,
or give rise (with or without the giving of notice or the passage of time or
both) to any right of termination, cancellation, or acceleration under, any bond, debenture,
note, mortgage or indenture, or any material lease, contract, agreement, or other instrument or
obligation to which SELLER is a party or by which SELLER or any of its properties may be bound, (c)
other than the encumbrance imposed by this Agreement, result in the creation or imposition of any
lien or other encumbrance upon the Properties; or (d) violate any applicable law, rule or
regulation binding upon SELLER.



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     Section 4.5 Approvals. Other than the requirements (if any) that there be obtained
consents to assignment from third parties, no consent, approval, order, or authorization of, or
declaration, filing, or registration with, any court or governmental agency or of any third party
is required to be obtained or made by SELLER in connection with the execution, delivery, or
performance by SELLER of this Agreement, and each other agreement, instrument, or document executed
or to be executed by SELLER in connection with the transaction contemplated hereby or the
consummation of the transactions contemplated hereby and thereby.



     Section 4.6 Pending Litigation. Except as set forth on Exhibit 4.6, there is no (a)
action or proceeding by a governmental authority or other party, nor is there outstanding any writ,
order, decree or injunction that (i) calls into question SELLER’s authority or right to enter into
this Agreement and consummate the transactions contemplated hereby, (ii) would otherwise prevent or
delay the transactions contemplated by this Agreement, or (b) or to the Knowledge of SELLER; (i)
threatens, challenges, or asserts a claim against the interests of SELLER in and to the Properties
and (ii) which could be reasonably expected to have a Material Adverse Effect.



     Section 4.7 No Alienation. Except surface rights that are not material and/or any
instruments listed on Exhibit 2.1(c) and Exhibit 2.1(e) , SELLER has not leased, sold, assigned,
conveyed, or transferred or contracted to sell, assign, convey or transfer any right or title
to, or interest in, the Properties.



     Section 4.8 Title. SELLER has good and marketable title to the Properties, free and
clear of any liens, claims, charges, options, or other encumbrances of any nature, of any person
claiming by, through, or under SELLER, but none other, provided, however, that this representation
is made subject to and there are hereby excepted from the further representations or warranties,
the “Permitted Encumbrances.” For purposes of this Agreement, “Permitted Encumbrances” shall mean:



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	 	(a)  	liens for taxes, assessments and other governmental charges which are not yet
due and payable as of the Closing;
	 
	 	(b)  	all land use (including environmental and wetlands), building and zoning and
mining laws, regulations, codes and ordinances affecting the Properties;
	 
	 	(c)  	any rights of the United States of America, or the State or Commonwealth in
which the Properties are located or others in the use and continuous flow of any
brooks, streams or other natural water courses or water bodies within, crossing or
abutting the Properties, including, without limitation, riparian rights and
navigational servitudes;
	 
	 	(d)  	all easements, rights-of-way, licenses and other such similar encumbrances
presently existing and of record;
	 
	 	(e)  	all existing public and private roads and streets and all railroad and
utility lines, pipelines, service lines and facilities;
	 
	 	(f)  	all encroachments, overlaps, boundary line disputes, shortages in area,
parties in possession, cemeteries and burial grounds and other matters not of record
which would be disclosed by an accurate survey or inspection of the Properties;
	 
	 	(g)  	Those mineral leases (as amended) and other instruments listed on Exhibit
2.1(c)and Exhibit 2.1(e);
	 
	 	(h)  	any loss or claim due to lack of access to any portion of the Properties and
	 
	 	(i)  	any loss or claim due to any indefiniteness or uncertainty in the legal
description of the Properties.
	 
	 	(j)  	the surface damages provisions of those certain Special Warranty Deeds from Plum Creek
Timberlands L. P. to Heartwood Forestland Fund IV Limited Partnership dated March 31, 2004
and filed for record in the counties where the Properties are located.





     Section 4.9 No Adverse Claims. To the Knowledge of SELLER, there are no adverse claims
to any of the Properties except for (i) Permitted Encumbrances, (ii) those claims which would not
have Material Adverse Effect,



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and (iii) those listed and described in Exhibit 4.9. There are no
eminent domain or condemnation proceedings pending, or to the Knowledge of SELLER, threatened
against any of the Properties, except such proceedings that would not have a Material Adverse
Effect.




     Section 4.10  Tax Matters. Except as would not have a Material Adverse Effect:



     (a) There is no dispute or claim concerning any Tax liability with respect to the Properties
claimed or raised by any authority.



     (b) There are no outstanding agreements or waivers extending the statutory period of
limitations applicable to any Tax Returns required to be filed by SELLER or with respect to the
Properties, or for which BUYER may be responsible.



     (c) Seller has filed all Tax Returns with respect to the Properties that were required to be
filed and such Tax Returns (with respect to the Properties) are accurate in all respects. All Taxes
shown as due with respect to the Properties on any such Tax Returns have been paid.



     (d) No special assessments for improvements are outstanding or have been completed as of the
date of this Agreement with respect to the Properties.



Section 4.11 Environmental Matters.




     (a) Except as to the extent that it would not have a Material Adverse Effect, there are no
pending or, to the Knowledge of SELLER, threatened claims, demands, actions, actions,
administrative proceeding or lawsuits against the SELLER with respect to the Properties under any
environmental laws and to the Knowledge of SELLER there are no facts which would give rise to the
same and none of the Properties is subject to any outstanding injunction, judgment, order, decree
or ruling, under any environmental laws.



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     (b) SELLER has not received notice that SELLER, with respect to the Properties, is or may be a
potentially responsible party under CERCLA or any analogous state law in connection with any site
actually containing or used for the treatment, storage or disposal of Hazardous Substances.



     Section 4.12 Leases. The Leases are in full force and effect and each party thereto
has performed all material obligations required to be performed by it under such Leases, and is not
in default under any obligation of such Leases, except when such default would not have a Material
Adverse Effect.



     Section 4.13 Disclaimer of Warranties.




     (a) Any documents, reserve studies, compilations, surveys, plans, specifications, reports
and/or other studies made available to BUYER by SELLER are provided as information only. BUYER
expressly acknowledges that except as contained in this Agreement, SELLER has not made any
representations or warranties whatsoever concerning the Properties or any matters pertaining to the
Properties. SELLER HEREBY EXPRESSLY DISCLAIMS AND NEGATES ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND WHICH ARE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT,
WHETHER EXPRESS OR IMPLIED, RELATING TO THE CONDITION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE COAL OR THE PROPERTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTY RELATING TO THE
CONDITION OF THE COAL OR THE PROPERTIES OR THEIR SUITABILITY FOR BUYER’S PURPOSES.



     (b) Subject to the representations and warranties of SELLER contained in this Agreement and
unless BUYER terminates this Agreement by reason of any right to do so under this Agreement, BUYER
is willing to and BUYER shall purchase the Properties and SELLER shall sell the Properties “AS IS,
WHERE IS”, with all faults including but not limited to acidic mine water and/or acid mine
drainage” at the Closing.



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     (c) BUYER, for itself and its successors and assigns, hereby waives and releases, indemnifies,
defends and holds harmless SELLER from any and all contractual, statutory, common law, and/or other
liabilities, obligations, claims or causes of action, known or unknown, that BUYER or its
successors and assigns may be entitled to assert against SELLER arising in whole or in part of, or
relating or connected in any way to, the condition of the Properties and/or the coal including, but
not limited to acidic mine water and/or acid mine drainage, any such liabilities, obligations,
claims or causes of action based in whole or in part upon any applicable federal, state or local
environmental law, rule or regulation or the environmental condition of the Properties, provided
that nothing in this Section shall in any manner release or discharge SELLER from liability for a
breach of the representations and warranties contained in this Agreement or from any liability
arising out of any flooding occurring prior to March 1, 2005 alleged to be the result of mineral
operations on the Properties.



ARTICLE V.




Representations and Warranties of BUYER




     BUYER represents to SELLER, as of the date of this Agreement and as of the date of the
Closing, that:



     Section 5.1 Organization and Existence. BUYER is duly organized, legally existing and
in good standing under the laws of its State of Delaware, and is qualified to do business in the
State of West Virginia and the Commonwealths of Virginia and Kentucky.



     Section 5.2  Power and Authority. BUYER has power and authority to
execute, deliver, and perform this Agreement and each other agreement, instrument, or document
executed or to be executed by BUYER in connection with the transactions contemplated hereby to
which it is a party and to consummate the transactions contemplated hereby and thereby. The
execution, delivery, and performance by BUYER of this Agreement and each other agreement,
instrument, or document executed or to be executed by BUYER in connection with the transactions
contemplated hereby to which it is a party, and



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the consummation by it of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary action(s) of BUYER.




     Section 5.3 Valid and Binding Agreement. This Agreement has been duly executed and
delivered by BUYER and constitutes, and each other agreement, instrument, or document executed or
to be executed by BUYER in connection with the transactions contemplated hereby to which it is a
party has been, or when executed will be, duly executed and delivered by BUYER and constitutes, or
when executed and delivered will constitute, a valid and legally binding obligation of BUYER,
enforceable against it in accordance with their respective terms, except that such enforceability
may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, and similar
laws affecting creditors’ rights generally and (b) equitable principles which may limit the
availability of certain equitable remedies (such as specific performance) in certain instances.



     Section 5.4 Non-Contravention. The execution, delivery, and performance by BUYER of
this Agreement and each other agreement, instrument, or document executed or to be executed by
BUYER in connection with the transactions contemplated hereby to which it is a party and the
consummation by it of the transactions contemplated hereby and thereby do not and will not (a)
conflict with or result in a violation of any provision of the governing instruments of BUYER, (b)
conflict with or result in a violation of any provision of, or constitute (with or without the
giving of notice or the passage of time or both) a default under, or give rise (with or without the
giving of notice or the passage of time or both) to any right of termination, cancellation, or
acceleration under, any bond, debenture, note, mortgage, indenture, lease, contract, agreement, or
other instrument or obligation to which BUYER is a party or by which BUYER or any of its properties
may be bound, (c) result in the creation or imposition of any lien or other encumbrance upon the
properties of BUYER, or (d) violate any applicable law, rule or regulation binding upon BUYER.



     Section 5.5 Approvals. No consent, approval, order, or authorization of, or
declaration, filing, or registration with, any court or governmental agency or of




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any third party is required to be obtained or made by BUYER in connection with
the execution, delivery, or performance by BUYER of this Agreement and each other
agreement, instrument, or document executed or to be executed by BUYER in connection with
the transactions contemplated hereby to which it is a party or the consummation by it of
the transactions contemplated hereby and thereby.



     Section 5.6 Pending Litigation. To the knowledge of BUYER, there is no action or
proceeding by a governmental authority or other party, nor is there outstanding any writ, order,
decree or injunction that (i) calls into question BUYER’s authority or right to enter into this
Agreement and consummate the transactions contemplated hereby, or (ii) would otherwise prevent or
delay the transactions contemplated by this Agreement.



ARTICLE VI.




Certain Covenants of BUYER and SELLER Pending Closing




     Section 6.1 Access to Files; Delivery and Retention of Records. SELLER will give
BUYER, its attorneys, and other representatives (the “Representatives”), access at all reasonable
times during normal business hours, and upon reasonable advance notice, to the Records. On or
before 60 days after the Closing Date Seller will deliver or cause to be delivered to Buyer at its
office in Huntington, West Virginia or such other mutually agreeable location, the Records. The
Seller (and its successors and assigns) may retain a copy of the Records to the extent that they
relate to the operation of its business. Buyer agrees to (a) hold the Records and not to destroy or
dispose of any portion thereof for a period of six years from the Closing Date or such longer time
as may be required by law and (b) following the Closing Date to afford (i) the Seller, (ii) the
Seller’s successors and assigns and (iii) any of their accountants, and counsel, during normal
business hours, upon reasonable request, at any time, full access to the Records and to Buyer’s
employees at no cost to Seller (other than for reasonable out-of pocket expenses); provided that
such access will not be construed to require the disclosure of Records that would cause the waiver
of any attorney-client, work product or like privilege, provided, further, that in the event of any
litigation nothing herein shall limit any Party’s rights of discovery under



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applicable law.
Nothing herein shall impose any liability upon Buyer in the event of destruction or loss of any
Records as a result of casualty. Buyer agrees to provide Seller and its successors and assigns
reasonable access to the Records after the Closing Date in order for Seller to comply with its
obligations under this Agreement (including without limitation the preparation of any required Tax
Returns and to comply with any indemnity obligations), to conduct any historical audit of the
financial statements of Seller in accordance with generally accepted accounting principles.



     Section 6.2 Operations Prior to Closing
Subject to the terms and conditions of this Agreement and except as otherwise
contemplated hereby, from the date hereof through the Closing Date, SELLER shall use reasonable
efforts to preserve the Properties and shall continue to conduct its business in connection with
the Properties in the ordinary and usual course as heretofore conducted, subject to the provisions
of this Agreement and to the requirement that SELLER shall not, from the date hereof through the
Closing Date, enter into agreements or instruments of any nature whatsoever that affects the
Properties without first obtaining the consent by BUYER.



     Section 6.3 Liens to be Released. SELLER shall cause any lien created by SELLER,
which constitutes a Defect to be released before or at Closing.



ARTICLE VII.




Due Diligence Examination




     Section 7.1 Inspection and Assertion of Title Defects.




     (a) SELLER shall make available to BUYER and its representatives, all title opinions,
supplemental title opinions and other title information in the possession of SELLER and
relating to the Properties. BUYER may, to the extent it deems appropriate, conduct, at its
sole cost, such title examination or investigation as it may choose to conduct with respect
to the Properties. Should, as a result of such examination and investigation, or
otherwise, matters come to BUYER’s attention which would constitute “Defects” (as below
defined), and should there be one or



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more of such Defects which BUYER determines it is
unwilling to waive and unwilling to close the transaction contemplated hereby
notwithstanding the fact that such Defects exist, BUYER shall, or cause its Representatives
to, notify SELLER in writing of such Defects on of before February 25, 2005. Such Defects
of which BUYER so provides notice are herein called “Asserted Defects” (including the
furnishing of additional information). All Defects with respect to which BUYER fails to so
give SELLER notice will
be deemed waived for all purposes. In the event that BUYER notifies SELLER of Asserted
Defects, SELLER shall have the right (but not the obligation) to attempt to cure such
Asserted Defects to the reasonable satisfaction of BUYER, and for the purpose of curing
such Asserted Defects, SELLER may, on written notice to BUYER, elect to delay Closing for a
period not to exceed 30 days. As to any Properties affected by an Asserted Defect and
withheld from Closing pursuant to Section 7.4, SELLER shall have 120 days to cure such
Defect to BUYER’s reasonable satisfaction. Upon acceptance of the cure, Closing shall
occur as to such Property. If the Asserted Defects are not so cured within such 120 days,
then SELLER shall retain the Properties that were withheld.




     (b) The term “Defect” as used in this Section shall mean any lien, claim or other
encumbrance of any nature against SELLER’s interest in the Properties other than the
“Permitted Encumbrances”, by persons claiming by, through, or under SELLER, but none other.



     Section 7.2 Production Price Adjustment BUYER shall have the right to contact two
of SELLER’S lessees (Resource Fuels LLC and Bluestone Coal Company) on or before February 18, 2005
for the sole purpose of confirming BUYER’s projections of future mining on the Properties. The
contacts shall be made through a representative of SELLER. If following the contacts, BUYER in
its good faith analysis determines that the combined projected production of the two leases does
not equal or exceed the combined projections for the two leases as set forth in the Projected
Production by Area and Lease 12-14-04, provided by Marshall Miller and Associates, BUYER and SELLER
agree to negotiate in good



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faith to adjust the Purchase Price by a mutually agreed amount not to
exceed five percent (5%) of the Purchase Price. If the parties are unable to agree on the amount
of the adjustment, the adjustment shall be submitted to binding arbitration provided that any
arbitration award shall not exceed five percent (5%) of the Purchase Price. If the amount has not
been so determined by arbitration before the Closing Date, then the Closing shall be delayed until
the 2nd business day after such amount has been so determined.



Section 7.3 Environmental Evaluation





     (a) BUYER shall have until 5:00 p.m. EST on February 25, 2005 to perform an
environmental evaluation of the Properties and verify compliance with applicable
environmental laws, ordinances and regulations. SELLER herewith grants permission to
BUYER, its agents and representatives and any independent contractor selected by Buyer to
conduct an environmental evaluation of the Properties. Seller hereby authorizes all
governmental agencies and authorities to release to Buyer’s employees or representatives
all information in their files regarding the Properties. All such work and studies shall
be at the sole cost and expense of Buyer and shall be nondestructive. Buyer shall notify
Seller and the current surface owner at least five (5) business days in advance of any
proposed soil or groundwater testing, and shall conduct only such soil or groundwater
testing as approved by SELLER, which approval shall not be unreasonably withheld. BUYER
shall leave the Properties in good condition and repair upon completion of any tests,
studies and entry pursuant to this paragraph and upon any request by SELLER, BUYER shall
restore the Properties to their condition immediately preceding any such tests, studies or
entry. BUYER shall keep the Properties free from liens relating to or arising out of any
tests, studies or entry by Buyer pursuant to this paragraph. BUYER covenants and agrees to
indemnify and hold SELLER and the surface owner harmless from any loss, liability, costs,
claims, damages, demands, actions, causes of action and suits caused by the exercise of the
rights and privileges granted to BUYER or



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the breach of BUYER’S covenants to restore the
Properties set forth in this paragraph. The indemnity contained in this paragraph shall
expressly survive the termination for any reason of this Agreement.




     (b) In the event the BUYER’S Environmental Evaluation reveals an adverse environmental
condition upon the Properties, BUYER shall either (i) obtain a survey of the areas affected
(at BUYER’s expense) and delete the affected acreage from Closing (without adjustment to
the
Purchase Price) or (ii) accept the conveyance of the portion of the Properties with
the adverse environmental condition and waive SELLER’S representations and warranties
contained in Section 4.11 (along with the corresponding Closing condition) only as to such
portion of the Properties.



     Section 7.4 Certain Price Adjustments.




     (a) In the event that, as a part of the due diligence review provided for in Section
7.1 , Asserted Defects are presented to SELLER and SELLER is unable (or unwilling) to cure
such Asserted Defects prior to the Closing, then:




     (i) BUYER and SELLER shall, with respect to each Property affected by one or
more Asserted Defects, attempt to agree upon an appropriate adjustment to the
Purchase Price to account for such Asserted Defects; and




     (ii) with respect to each Property as to which BUYER and SELLER are unable to
agree upon an appropriate adjustment with respect to all Asserted Defects affecting
such Property, such Property will be excluded from the transaction contemplated
hereby, and the Purchase Price will be reduced by an amount determined by
arbitration in accordance with Article XVIII and, if the amount has not been so
determined by arbitration before the Closing Date, then



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the Closing shall be
delayed until the 2nd business day after such amount has been so determined.




     (b) If the Asserted Defect is a monetary lien that can be discharged with the payment
of a determinable sum of money SELLER shall discharge such lien on or prior to Closing.



     Section 7.5 Waiver
Without limiting Section 7.1 and notwithstanding anything else herein to the contrary, all
Defects not raised by BUYER within the time period specified in Section 7.1(a) shall be waived by
BUYER as a Defect.



ARTICLE VIII.




Conditions Precedent to the Obligations of the Parties to Close




     Section 8.1 Conditions Precedent to the Obligations of BUYER to Close. The
obligations of BUYER to consummate the transactions contemplated by this Agreement are subject to
each of the following conditions being met:




     (a) Except for representations qualified by “material” or “materiality” in which case
such representations must be true and accurate in all respects when made and at Closing
when serving as a condition to Close, each and every representation of SELLER under this
Agreement shall be true and accurate in all material respects as of the date when made and,
for the purposes of serving as a condition to Close, shall be true and accurate in all
material respects at and as of the time of Closing, as if it had been made again at and as
of the time of Closing.




     (b) Except for covenants, agreements and conditions qualified by “material” or
“materiality” in which case compliance must be performed and complied with in all respects
by SELLER prior to or at the Closing, SELLER shall have performed and complied in all
material respects with (or



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compliance therewith shall have been waived by BUYER) each and
every covenant, agreement and condition required by this Agreement to be performed or
complied with by SELLER prior to or at the Closing.




     (c) SELLER shall have delivered a certificate executed by an authorized officer of
SELLER dated the Closing Date, representing and
certifying in such detail as BUYER may reasonably request that the conditions set
forth in subsections (a) and (b) above have been fulfilled.




     (d) No suit, action or other proceeding by any governmental authority shall, on the
date of Closing, be pending before any court or governmental agency seeking to restrain,
prohibit, or obtain damages or other relief in connection with the consummation of the
transactions contemplated by this Agreement.



     Section 8.2 Conditions Precedent to the Obligations of SELLER to Close. The
obligations of SELLER to consummate the transactions contemplated by this Agreement are subject to
each of the following conditions being met:




     (a) Except for representations qualified by “material” or “materiality” in which case
such representations must be true and accurate in all respects when made and at Closing
when serving as a condition to Close, each and every representation of BUYER under this
Agreement shall be true and accurate in all material respects as of the date when made and,
for the purposes of serving as a condition to Close, shall be true and accurate in all
material respects at and as of the time of Closing, as if it had been made again at and as
of the time of Closing.




     (b) Except for covenants, agreements and conditions qualified by “material” or
“materiality” in which case compliance must be performed and complied with in all respects
by BUYER prior to or at the Closing, BUYER shall have performed and complied in all
material respects with (or compliance therewith shall have been waived by SELLER) each and
every covenant, agreement and condition required by this Agreement to be performed or
complied with by BUYER prior to or at the Closing.



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     (c) No suit, action or other proceeding by any governmental authority shall, on the
date of Closing, be pending before any court or governmental agency seeking to restrain,
prohibit, or obtain damages or
other relief in connection with the consummation of the transactions contemplated by
this Agreement.



ARTICLE IX.




Closing of Transaction




     Section 9.1 The Closing. The closing (herein called the “Closing”) of the transaction
contemplated hereby will be held 10:00 a.m. Eastern Standard Time on or before March 8, 2005 at
the offices of SELLER located at One Concourse Parkway, Suite 755, Atlanta, Georgia 30328, or at
such other date time and place as may be required by this Agreement or as BUYER and SELLER may
mutually agree upon (such date and time being herein called the “Closing Date”). It is specifically
understood and agreed by the parties, that for purposes of this Agreement, the Closing shall be
effective as of March 1, 2005.



     Section 9.2 SELLER’s Closing Obligations At the Closing, SELLER shall:



          (a) execute, acknowledge and deliver to BUYER one or more Deeds for the conveyance and
assignment of the Properties (one for each applicable county) (the “Deeds of Conveyance”), in
substantially the same form attached hereto as Exhibit 9.2(a), (along with a sale listing form or a
declaration of consideration for each deed so that the total consideration stated for the Deeds of
Conveyance equals the Adjusted Purchase Price as either allocated as agreed by the parties or, in
the absence of such agreement, as directed by BUYER) together with checks for the payment of any
transfer taxes required by an governmental body in order to record each of said Deeds of
Conveyances.




          (b) deliver a copy of the resolutions adopted by the board of directors of SELLER authorizing
SELLER to execute and deliver this Agreement and all related documents and instruments and to
perform its obligations




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hereunder and thereunder, which copy shall be certified by the secretary or assistant
secretary of SELLER;



          (c) deliver to BUYER a certificate of existence and good standing issued by the Secretary of
State of Delaware and dated no earlier than thirty business days prior to the Closing Date along
with the certificate specified in Section 8.1(c);




          (d) to the extent requested by BUYER, execute and deliver to BUYER an affidavit or other
certification (as permitted by such code) in the form of Exhibit 9.2(d) attached hereto that SELLER
is not a “foreign person” within the meaning of Section 1445 (or similar provisions) of the
Internal Revenue Code of 1986 as amended (i.e., SELLER is not a non-resident alien, foreign
corporation, foreign partnership, foreign trust or foreign estate as those terms are defined in
such code and regulations promulgated thereunder); and




          (e) SELLER shall cause Escrow Agent to deliver the Earnest Money to BUYER




     Section 9.3 BUYER’s Closing Obligations. At the Closing, BUYER shall deliver to
SELLER, by wire transfer to an account designated by SELLER in a bank located in the United States,
an amount equal to the Adjusted Purchase Price.



ARTICLE X.




 Other Agreements 




     Section 10.1 Prorations and Expenses. All real estate ad valorem taxes shall
be prorated as of March 1, 2005 in a manner mutually agreeable to BUYER and SELLER. SELLER shall
pay for any state property transfer taxes and will prepare the Deed of Conveyance. BUYER shall pay
all costs of recording.



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ARTICLE XI.




Surface Damages




     Section 11.1 Surface Damages. Any conveyance made pursuant to this Agreement shall be
made subject to the surface damages provisions contained in those certain Special Warranty Deeds
from Plum Creek Timberlands L. P. to Heartwood Forestland Fund IV Limited Partnership dated March
31, 2004 and BUYER agrees to compensate SELLER in the same manner for operations on surface
property owned by SELLER and not to be conveyed hereunder.



ARTICLE XII.




Post Closing Obligations




     Section 12.1 Survival of Provisions. All representations and warranties of SELLER or
BUYER contained in this Agreement, any exhibit or in any certificate delivered at the Closing shall
survive the Closing, for a period of one year from the Closing Date (the “Indemnification Period”).
Any claim for indemnification for a breach of representation or warranty must be made prior to the
expiration of the Indemnification Period. Notwithstanding the foregoing, the obligation of each
party hereto to indemnify any other party hereto shall continue after the expiration of the
Indemnification Period with respect to any matter of which the party seeking indemnity hereunder
shall have given the other party written notice as provided herein prior to the expiration of the
Indemnification Period. All indemnities, waivers and releases of BUYER, in favor of SELLER, shall
survive indefinitely.



     Section 12.2 SELLER’S Indemnification. SELLER shall on the date of Closing agree to
indemnify and hold BUYER harmless from and against any and all claims, obligations, actions,
liabilities, damages, expenses or losses resulting from any misrepresentation or breach of any
warranty, covenant or agreement of SELLER contained in this Agreement or any certificate delivered
by SELLER at
the Closing or from any liability arising out of any flooding occurring prior to March 1, 2005
alleged to be the result of mineral operations on the Properties.




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     Section 12.3 BUYER’S Indemnification. BUYER shall, on the date of Closing, agree, to
indemnify and hold SELLER harmless from and against any and all claims, obligations, actions,
liabilities, damages, costs, expenses, or losses resulting from any misrepresentation or breach of
any warranty, covenant or agreement of BUYER contained in this Agreement or any certificate
delivered by BUYER at the Closing.



     Section 12.4 Notice of Claim. If indemnification pursuant to Section 12.2 or 12.3 is
sought, the party seeking indemnification (the “Indemnitee”) shall give written notice to the
indemnifying party of an event giving rise to the obligation to indemnify, describing in reasonable
detail the factual basis for such claim, and shall allow the indemnifying party to assume and
conduct the defense of the claim or action with counsel reasonably satisfactory to the Indemnitee,
and cooperate with the indemnifying party in the defense thereof; provided, however, that the
omission to give such notice to the indemnifying party shall not relieve the indemnifying party
from any liability which it may have to the Indemnitee, except to the extent that the indemnifying
party is prejudiced by the failure to give such notice. The Indemnitee shall have the right to
employ separate counsel to represent the Indemnitee if the Indemnitee is advised by counsel that an
actual conflict of interest makes it advisable for the Indemnitee to be represented by separate
counsel and the reasonable expenses and fees of such separate counsel shall be paid by the
indemnifying party.



ARTICLE XIII.




Casualty Loss




     Section 13.1 Casualty Loss. In the event of damage by fire or other casualty to the Properties prior to the Closing,
then this Agreement shall remain in full force and effect and BUYER and SELLER shall proceed to
Closing without adjusting the Purchase Price and SELLER shall assign to BUYER all insurance
benefits (if any) and proceeds and also all claims against third parties that it has with respect
to such loss.



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ARTICLE XIV.




Notices




     Section 14.1 Notices. All notices and other communications required under this
Agreement shall (unless otherwise specifically provided herein) be in writing and be delivered
personally, by recognized commercial courier or delivery service via overnight mail (which provides
a receipt), or by telecopier (with receipt acknowledged) at the following addresses:



	 	 	 	 	 
	

	 	If to SELLER:
	 	Plum Creek Timberlands, L.P.
	

	 	 	 	One Concourse Parkway, Suite 755
	

	 	 	 	Atlanta, Georgia 30328
	

	 	 	 	Attention: Law Department
	

	 	 	 	Telecopier: (770) 671-0211
	 
	 	 	 	 
	

	 	If to BUYER:
	 	WPP LLC
	

	 	 	 	1035 Third Avenue
	

	 	 	 	Post Office Box 2827
	

	 	 	 	Huntington, WV 25727-2827
	

	 	 	 	Attention: Nick Carter
	

	 	 	 	Telecopier: (304) 522-5401
	 
	 	 	 	 
	

	 	With copy to:
	 	Natural Resource Partners L.P.
	

	 	 	 	601 Jefferson Street, Suite 3600
	

	 	 	 	Houston, Texas 77002
	

	 	 	 	Attention: Wyatt Hogan, Esq.
	

	 	 	 	Telecopier: (713) 751-7517






and shall be considered delivered on the earlier of the date of receipt or the day following the
date it was sent. Either BUYER or SELLER may specify as its proper address any other post office
address within the continental limits of the United States by giving notice to the other party, in
the manner provided in this Article, at least ten (10) days prior to the effective date of such change of address.




ARTICLE XV.




Termination




     Section 15.1 Termination. This Agreement may be terminated at any time prior to Closing
by:



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     (a) the mutual consent of BUYER and SELLER;




     (b) either BUYER or SELLER if the Closing has not occurred by the close of business on
May 1, 2005 so long as the failure to consummate the transaction on or before such date
did not result solely from the failure by the party or its affiliate seeking termination of
this Agreement to fulfill any undertaking or commitment on its part provided for herein
prior to Closing;




     (c) SELLER in the event a condition to SELLER’s obligation to close pursuant to
Section 8.2 hereunder is not timely satisfied and is not waived by SELLER; or




     (d) SELLER in the event the Purchase Price adjustments made pursuant to Section 7.4
equal or exceeds five percent of the Purchase Price.




     (e) BUYER in the event a condition to BUYER’s obligation to close pursuant to Section
8.1 hereunder is not timely satisfied and is not waived by BUYER.




     (f) BUYER in the event a that BUYER in the good faith exercise of the rights granted
in Section 7.3 (b) excludes 10% or more of the total acres to be conveyed to BUYER pursuant
to this Agreement.



     Section 15.2 Procedure and Effect of Termination. In the event of termination of this Agreement pursuant to Section 15.1, written notice thereof
shall forthwith be given by the terminating party to the other parties hereto, and this Agreement
shall thereupon terminate and become void and have no effect, and the transactions contemplated
hereby shall be abandoned without further action by the parties hereto, except that the provisions
of Section 14.1, Section 15.1, Section 15.2, Article XVI, Section 17.5, Section 17.6, Section 17.8,
Section 17.9, Section 17.11, Section 17.14, Section 17.15 and Article XVIII shall survive the
termination of this Agreement, provided, however, that such



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termination shall not relieve any party
hereto of any liability for any breach of this Agreement.




ARTICLE XVI.




Commissions




     Section 16.1 Commissions.




     (a) SELLER agrees to indemnify and hold harmless BUYER from and against any and all
claims, obligations, actions, liabilities, losses, damages, costs or expenses (including
court costs and attorneys fees) of any kind or character arising out of or resulting from
any agreement, arrangement or understanding alleged to have been made by, or on behalf of,
SELLER with Marshall Miller & Associates, Inc. in connection with this Agreement or the
transaction contemplated hereby.




     (b) BUYER agrees to indemnify and hold harmless SELLER from and against any and all
claims, obligations, actions, liabilities, losses, damages, costs or expenses (including
court costs and attorneys fees) of any kind or character arising out of or resulting from
any agreement, arrangement or understanding alleged to have been made by, or on behalf of,
BUYER with any person, firm, or entity (except Marshall Miller & Associates, Inc.) in
connection with this Agreement or the transaction contemplated hereby.



ARTICLE XVII.




Miscellaneous Matters




     Section 17.1 Further Assurances. In order to effectuate and provide BUYER with the
benefits of the transactions contemplated hereby, after the Closing, SELLER shall execute and
deliver, and shall otherwise cause to be executed and delivered, from time to time, such further
instruments, notices, division orders, transfer orders and other documents, and do such other and



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further acts and things, as may be reasonably necessary to more fully and effectively grant, convey
and assign the Properties to BUYER.




     Section 17.2 Binding Effect; Successors and Assigns. The Agreement shall be binding
on the parties hereto and their respective successors and permitted assigns provided that BUYER
shall not assign its rights under this Agreement, without the prior written consent of the SELLER
first having been obtained.



     Section 17.3 Entire Agreement — Time of the Essence. This Agreement contains the
entire understanding of the parties hereto with respect to subject matter hereof and supersedes all
prior agreements, understandings, negotiations, and discussions among the parties with respect to
such subject matter. Time is of the essence in this Agreement.



     Section 17.4 Default. In the event of default by BUYER, BUYER shall furnish SELLER
with all reports and studies relating to the Properties conducted by or for BUYER, and BUYER agrees
that SELLER shall retain the Earnest Money as liquidated damages as SELLER’s sole remedy. BUYER
and SELLER agree that the Earnest Money is a reasonable amount for liquidated damages sustained by
SELLER upon default by BUYER because of the uncertainty in ascertaining actual damages.



     Section 17.5 Limitation of Damages. In no event shall either party be liable to the
other party for any consequential, incidental, indirect or special damages arising out of this
Agreement or any breach thereof, including but not limited to loss of use, lost profits or revenue,
whether or not such loss or damage is based on contract, warranty, negligence or otherwise.



     Section 17.6 Injunctive Relief. The parties hereto acknowledge and agree that
irreparable damage would occur in the event any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this



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Agreement, and shall be entitled to enforce specifically the provisions of
this Agreement, in any court of the United States or any state thereof having jurisdiction, in
addition to any other remedy to which the parties may be entitled under this Agreement or at law or
in equity. Anything in this Agreement to the contrary notwithstanding, no breach of any
representation, warranty, covenant or agreement contained herein shall give rise to any right on
the part of BUYER or SELLER after the Closing to rescind this Agreement or any of the transactions
contemplated hereby.




     Section 17.7 Amendments. This Agreement may be amended, modified, supplemented,
restated or discharged (and provisions hereof may be waived) only by an instrument in writing
signed by the party against whom enforcement of the amendment, modification, supplement,
restatement or discharge (or waiver) is sought.



     Section 17.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of West Virginia applicable to a contract executed
and performed in such State, without giving effect to conflicts of laws principles requiring the
application of the law of another State.



     Section 17.9 Intermediary. The parties agree that SELLER may, in its discretion,
substitute an intermediary (an “Intermediary”) to act in its place, in whole or in part, as SELLER
of the Properties, and thereby elect to consummate all or portions of the transaction as a like
kind exchange pursuant to Section 1031 of the Internal Revenue Code. BUYER agrees to accept the
Properties, any escrow instructions and any other required performance of SELLER hereunder from an
Intermediary and to render performance of BUYER’s obligations hereunder to an Intermediary,
provided that BUYER shall not incur any additional liability as a result of its cooperation with
SELLER under this Section 17.9 and SELLER shall continue to be responsible to BUYER for all
representations, warranties and covenants contained herein. SELLER agrees to pay any and all
additional costs incurred as a result of substituting an Intermediary. SELLER further agrees to
indemnify and defend BUYER against, and hold BUYER



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harmless from, any and all actions, causes,
demands, expenses or liabilities, known or unknown, fixed or contingent (including, without
limitation, court costs and reasonable attorneys’ fees incurred in connection with the enforcement
of this indemnity, or otherwise) incurred by or asserted against BUYER in connection with or
arising out of the election by SELLER to consummate the subject transaction as a like kind exchange
pursuant to Section 1031 of the Internal Revenue Code. The provisions of this Section 17.9 shall
survive the Closing or any termination of this Agreement.




     Section 17.10 Multiple Counterparts; Fax. This instrument may be executed in a number
of identical counterparts, each of which for all purposes is to be deemed an original, and all of
which constitute collectively, one instrument. It is not necessary that each party hereto execute
the same counterpart so long as identical counterparts are executed by each such party hereto.
This instrument may be validly executed and delivered by facsimile or other electronic
transmission.



     Section 17.11 Confidentiality Neither party shall make any public announcement or public disclosure relating to this
Agreement, without prior consultation (consent not required) of the other party as to the content
and timing of such announcement or disclosure. The disclosing party agrees to consider, but shall
not be bound by, any comments of the other party relating to any public announcement.



     Section 17.12 Severability of Provisions. If any provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner adverse to any party. Upon any such determination, the parties hereto shall negotiate
in good faith to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that transactions contemplated hereby are
fulfilled to the extent possible.



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     Section 17.13 No Third Party Beneficiaries. Nothing in this Agreement or any
ancillary documents, whether expressed or implied, is intended or shall be construed to confer upon
or give to any person, firm, corporation or legal entity, other than the parties hereto, any
rights, remedies or other benefits under or by reason of this Agreement.



     Section 17.14 Attorneys’ Fees. If either party hereto is required to retain an
attorney to enforce any provision of this Agreement, whether or not a legal proceeding is
commenced, the substantially prevailing party shall be entitled to reasonable attorneys’ fees
regardless of whether at trial, on appeal, in any bankruptcy proceeding, in an arbitration or
without resort to suit.



     Section 17.15  Waiver of Jury Trial. EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (ACTION, PROCEEDING OR COUNTERCLAIM) DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, ANY DOCUMENT OR AGREEMENT ENTERED INTO IN CONNECTION HEREWITH AND ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY.



     Section 17.16 Legal Relationships. The parties to this Agreement execute the same
solely as a SELLER and a BUYER. No partnership, joint venture or joint undertaking shall be
construed from these presents, and except as herein specifically provided, neither party shall have
the right to make any representation for, act on behalf of, or be liable for the debts of the
other. All terms, covenants and conditions to be observed and performed by either of the parties
hereto shall be joint and several if entered into by more than one person on behalf of such party,
and a default by any one or more of such persons shall be deemed a default on the part of the party
with whom said person or persons are identified.



-34-









 





ARTICLE XVIII.




Arbitration




     Section 18.1 Selection of Arbitrators. Except as provided in Section 17.6, any and
all disputes arising under or in connection with this Agreement shall be determined by a board of
arbitration upon notice of submission given by either party to the other, which notice shall name a
qualified, impartial, and independent arbitrator. Within fifteen (15) days after the receipt of
such notice, the other party shall name a qualified, impartial and independent arbitrator, or
failing to do so, the Senior Judge (in service) of the United States District Court for the
Southern District of West Virginia shall name the second. Within fifteen (15) days after the
appointment of the first two arbitrators, the two arbitrators so appointed shall name the third
qualified, independent arbitrator, or failing to do so, the third arbitrator may be appointed by
the Senior Judge (in service) of the United States District Court for the Southern District of West
Virginia.



     Section 18.2 Determination. The arbitration shall be conducted in accordance with the
Federal Arbitration Act and using the rules of the American Arbitration Association or any
successor thereof when not in conflict with such act. The arbitrators selected to act hereunder
shall be qualified by education and experience to pass on the particular question in dispute. The
arbitrators shall promptly hear and determine (after due notice of hearing and giving the parties a
reasonable opportunity to be heard) the questions submitted, and shall render their decision within
forty-five (45) days after appointment of the third arbitrator. If within said period a decision
is not rendered by the board, or majority thereof, new arbitrators may be named and shall act
hereunder at the election of either BUYER or SELLER in like manner as if none had been previously
named.



     Section 18.3 Decision Binding. The decision of the arbitrators, or the majority thereof, made in writing shall be final
and binding upon the parties hereto as to the questions submitted, and BUYER and SELLER will abide
by and comply with such decision. The expenses of arbitration, including reasonable compensation
to the arbitrators, shall be borne equally by the parties hereto,



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except that each party shall bear
the compensation and expenses of its own counsel, witnesses, and employees.




     IN WITNESS WHEREOF, this Agreement is executed by the parties hereto on the date set forth
above.



	 	 	 	 	 
	 	 	SELLER:
	 
	 	 	 	 
	 	 	PLUM CREEK TIMBERLANDS, L.P.
	

	 	By:
	 	Plum Creek Timber I, L.L.C.
	

	 	 	 	Its General Partner
	 
	 	 	 	 
	

	 	By:	 	/s/ RICK R. HOLLEY
	

	 	 	 	 
	

	 	 	 	Rick R. Holley

President and Chief Executive Officer
	 
	 	 	 	 
	 	 	BUYER:
	 
	 	 	 	 
	 	 	WPP LLC
By : NRP(Operating) LLC
Its: Sole Member
	 
	 	 	 	 
	

	 	By:	 	/s/ NICK CARTER
	

	 	 	 	 
	

	 	 	 	Nick Carter
	

	 	 	 	President and Chief Operating Officer







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ESCROW




Marshall Miller & Associates, Inc., hereinbefore referred to as Escrow Agent, hereby accepts the
foregoing trust this 28th day of January, 2005. It being expressly understood and
agreed that its duties and responsibilities hereunder are that of delivering said earnest money to
the Purchaser upon full performance or to Seller in the event of default in accordance with the
terms hereof, and that it shall have no other duties or responsibilities. The Escrow Agent will
perform as required by any court having jurisdiction regarding the matter herein.



RECEIPT




     Receipt of Contract and One Million One Hundred Thousand Dollars ($1,100,000.00)
Earnest Money is acknowledged.



Date: January 28, 2005




	 	 	 	 	 	 	 
	 	 	ACCEPTED AND AGREED:
	 
	 	 	 	 	 	 
	 	 	Marshall Miller & Associates, Inc. Escrow Agent
	 
	 	 	 	 	 	 
	

	 	By:	 	 	 	 
	

	 	 	 	 	 	 
	

	 	Its:	 	 	 	 
	

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Date of Execution: _________________, 2005






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