Exhibit 4.1
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NRP (OPERATING) LLC
$175,000,000
5.55% Senior Notes, Series A, due June 19, 2023
4.91% Senior Notes, Series B, due June 19, 2018
5.55% Senior Notes, Series C, due June 19, 2013
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NOTE PURCHASE AGREEMENT
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Dated June 19, 2003
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TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
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SECTION 1. AUTHORIZATION OF NOTES........................................................1
SECTION 2. SALE AND PURCHASE OF NOTES....................................................2
Section 2.1. Sale and Purchase of 2003 Notes...............................................2
Section 2.2. Additional Series of Notes....................................................2
SECTION 3. CLOSING.......................................................................3
SECTION 4. CONDITIONS TO CLOSING.........................................................3
Section 4.1. Representations and Warranties................................................3
Section 4.2. Performance; No Default.......................................................4
Section 4.3. Compliance Certificates.......................................................4
Section 4.4. Opinions of Counsel...........................................................4
Section 4.5. Purchase Permitted by Applicable Law, Etc.....................................4
Section 4.6. Sale of Other Notes...........................................................5
Section 4.7. Payment of Special Counsel Fees...............................................5
Section 4.8. Private Placement Number......................................................5
Section 4.9. Changes in Corporate Structure................................................5
Section 4.10. Funding Instructions..........................................................5
Section 4.11. Subsidiary Guarantee..........................................................5
Section 4.12. Proceedings and Documents.....................................................5
Section 4.13. Conditions to Issuance of Additional Notes....................................6
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.................................6
Section 5.1. Organization; Power and Authority.............................................6
Section 5.2. Authorization, Etc............................................................6
Section 5.3. Disclosure....................................................................6
Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates..............7
Section 5.5. Financial Statements..........................................................8
Section 5.6. Compliance with Laws, Other Instruments, Etc..................................8
Section 5.7. Governmental Authorizations, Etc..............................................8
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders.....................8
Section 5.9. Taxes.........................................................................8
Section 5.10. Title to Property; Leases.....................................................9
Section 5.11. Licenses, Permits, and Intellectual Property..................................9
Section 5.12. Compliance with ERISA.........................................................9
Section 5.13. Private Offering by the Company..............................................10
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SECTION HEADING PAGE
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Section 5.14. Use of Proceeds; Margin Regulations..........................................10
Section 5.15. Existing Debt; Future Liens..................................................11
Section 5.16. Foreign Assets Control Regulations, Etc......................................11
Section 5.17. Status under Certain Statutes................................................11
Section 5.18. Notes Rank Pari Passu........................................................12
Section 5.19. Environmental Matters........................................................12
Section 5.20. Subsidiary Guarantors........................................................12
SECTION 6. REPRESENTATIONS OF THE PURCHASER.............................................12
Section 6.1. Purchase for Investment......................................................12
Section 6.2. Source of Funds..............................................................12
SECTION 7. INFORMATION AS TO COMPANY....................................................14
Section 7.1. Financial and Business Information...........................................14
Section 7.2. Officer's Certificate........................................................17
Section 7.3. Inspection...................................................................17
SECTION 8. PREPAYMENT OF THE NOTES......................................................18
Section 8.1. Required Prepayments.........................................................18
Section 8.2. Optional Prepayments with Make-Whole Amount..................................18
Section 8.3. Change in Control............................................................19
Section 8.4. Allocation of Partial Prepayments............................................21
Section 8.5. Maturity; Surrender, Etc.....................................................21
Section 8.6. Purchase of Notes............................................................21
Section 8.7. Make-Whole Amount............................................................21
SECTION 9. AFFIRMATIVE COVENANTS........................................................23
Section 9.1. Compliance with Law..........................................................23
Section 9.2. Insurance....................................................................23
Section 9.3. Maintenance of Properties....................................................23
Section 9.4. Payment of Taxes and Claims..................................................23
Section 9.5. Existence, Etc...............................................................24
Section 9.6. Notes to Rank Pari Passu.....................................................24
Section 9.7. Subsidiary Guarantee; Release................................................24
SECTION 10. NEGATIVE COVENANTS...........................................................25
Section 10.1. Transactions with Affiliates.................................................25
Section 10.2. Merger, Consolidation, Etc...................................................25
Section 10.3. Liens........................................................................26
Section 10.4. Priority Debt................................................................27
Section 10.5. Fixed Charges Coverage Ratio.................................................27
Section 10.6. Limitations on Debt..........................................................27
Section 10.7. Sale of Assets, Etc..........................................................28
Section 10.8. Restricted Payments..........................................................28
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SECTION HEADING PAGE
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Section 10.9. Nature of Business...........................................................29
SECTION 11. EVENTS OF DEFAULT............................................................29
SECTION 12. REMEDIES ON DEFAULT, ETC.....................................................31
Section 12.1. Acceleration.................................................................31
Section 12.2. Other Remedies...............................................................32
Section 12.3. Rescission...................................................................32
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc............................32
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES................................32
Section 13.1. Registration of Notes........................................................32
Section 13.2. Transfer and Exchange of Notes...............................................33
Section 13.3. Replacement of Notes.........................................................33
SECTION 14. PAYMENTS ON NOTES............................................................34
Section 14.1. Place of Payment.............................................................34
Section 14.2. Home Office Payment..........................................................34
SECTION 15. EXPENSES, ETC................................................................34
Section 15.1. Transaction Expenses.........................................................34
Section 15.2. Survival.....................................................................35
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.................35
SECTION 17. AMENDMENT AND WAIVER.........................................................35
Section 17.1. Requirements.................................................................35
Section 17.2. Solicitation of Holders of Notes.............................................36
Section 17.3. Binding Effect, Etc..........................................................36
Section 17.4. Notes Held by Company, Etc...................................................36
Section 17.5. Calculation of Outstanding Notes.............................................36
SECTION 18. NOTICES......................................................................37
SECTION 19. REPRODUCTION OF DOCUMENTS....................................................37
SECTION 20. CONFIDENTIAL INFORMATION.....................................................37
SECTION 21. SUBSTITUTION OF PURCHASER....................................................38
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SECTION HEADING PAGE
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SECTION 22. MISCELLANEOUS................................................................39
Section 22.1. Successors and Assigns.......................................................39
Section 22.2. Payments Due on Non-Business Days............................................39
Section 22.3. Severability.................................................................39
Section 22.4. Construction.................................................................39
Section 22.5. Counterparts.................................................................39
Section 22.6. Governing Law................................................................39
Signature...........................................................................................40
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SCHEDULE A -- INFORMATION RELATING TO PURCHASERS
SCHEDULE B -- DEFINED TERMS
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.15 -- Existing Debt
SCHEDULE 8.1(a) -- Amortization of Series A Notes
SCHEDULE 8.1(b) -- Amortization of Series B Notes
EXHIBIT 1-A -- Form of 5.55% Senior Note, Series A, due June 19, 2023
EXHIBIT 1-B -- Form of 4.91% Senior Note, Series B, due June 19, 2018
EXHIBIT 1-C -- Form of 5.55% Senior Note, Series C, due June 19, 2013
EXHIBIT 4.4(a)(i) -- Form of Opinion of Special Counsel for the Obligors
EXHIBIT 4.4(a)(ii) -- Form of Opinion of Vice President and General Counsel to the Company
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel for the Purchasers
EXHIBIT 4.11 -- Form of Subsidiary Guarantee
EXHIBIT S -- Form of Supplement
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NRP (OPERATING) LLC
601 JEFFERSON, SUITE 3600
HOUSTON, TEXAS 77002
5.55% SENIOR NOTES, SERIES A, DUE JUNE 19, 2023
4.91% SENIOR NOTES, SERIES B, DUE JUNE 19, 2018
5.55% SENIOR NOTES, SERIES C, DUE JUNE 19, 2013
June 19, 2003
TO EACH OF THE PURCHASERS LISTED IN THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
NRP (OPERATING) LLC, a Delaware limited liability company (the
"Company"), agrees with you as follows:
SECTION 1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of:
(i) $60,000,000 aggregate principal amount of its 5.55% Senior
Notes, Series A, due June 19, 2023 (the "Series A Notes");
(ii) $80,000,000 aggregate principal amount of its 4.91%
Senior Notes, Series B, due June 19, 2018 (the "Series B Notes"); and
(iii) $35,000,000 aggregate principal amount of its 5.55%
Senior Notes, Series C, due June 19, 2013 (the "Series C Notes" and,
together with the Series A Notes and the Series B Notes, collectively,
the "2003 Notes").
The Series A, B and C Notes together with each series of Additional
Notes which may from time to time be issued pursuant to the provisions of
Section 2.2 are collectively referred to as the "Notes" (such term shall also
include any such notes issued in substitution therefor pursuant to Section 13 of
this Agreement or the Other Agreements (as hereinafter defined). The Series A, B
and C Notes shall be substantially in the respective forms set out in Exhibit
1A, 1B and 1C, with such changes therefrom, if any, as may be approved by you
and the Company. Certain capitalized terms used in this Agreement are defined in
Schedule B; references to a "Schedule" or an "Exhibit" are, unless otherwise
specified, to a Schedule or an Exhibit attached to this Agreement.
NRP (Operating) LLC Note Purchase Agreement
SECTION 2. SALE AND PURCHASE OF NOTES.
Section 2.1. Sale and Purchase of 2003 Notes. Subject to the terms and
conditions of this Agreement, the Company will issue and sell to you and you
will purchase from the Company, at the Closing provided for in Section 3, 2003
Notes of the series and in the principal amount specified opposite your name in
Schedule A at the purchase price of 100% of the principal amount thereof.
Contemporaneously with entering into this Agreement, the Company is entering
into separate Note Purchase Agreements (the "Other Agreements") identical with
this Agreement with each of the other purchasers named in Schedule A (the "Other
Purchasers"), providing for the sale at such Closing to each of the Other
Purchasers of 2003 Notes of the series and in the principal amount specified
opposite its name in Schedule A. Your obligation hereunder, and the obligations
of the Other Purchasers under the Other Agreements, are several and not joint
obligations, and you shall have no obligation under any Other Agreement and no
liability to any Person for the performance or nonperformance by any Other
Purchaser thereunder. The Series A, B and C Notes and each other series of Notes
issued hereunder are each herein sometimes referred to as Notes of a "series."
The Notes shall be guaranteed by and have the benefit of the Subsidiary
Guarantee.
Section 2.2. Additional Series of Notes. The Company may, from time to
time, in its sole discretion, but subject to the terms hereof, issue and sell
one or more additional series of its unsecured unsubordinated promissory notes
under the provisions of this Agreement pursuant to a supplement (a "Supplement")
substantially in the form of Exhibit S. Each additional series of Notes (the
"Additional Notes") issued pursuant to a Supplement shall be subject to the
following terms and conditions:
(i) each series of Additional Notes, when so issued, shall be
differentiated from all previous series by sequential alphabetical
designation inscribed thereon;
(ii) each series of Additional Notes shall be dated the date
of issue, bear interest at such rate or rates, mature on such date or
dates, be subject to such mandatory and optional prepayment on the
dates and at the premiums, if any, have such additional or different
conditions precedent to closing, such representations and warranties
and such additional covenants as shall be specified in the Supplement
under which such Additional Notes are issued and upon execution of any
such Supplement, this Agreement shall be deemed amended to reflect such
additional covenants without further action on the part of the holders
of the Notes outstanding under this Agreement, provided, that any such
additional covenants shall inure to the benefit of all holders of Notes
so long as any Additional Notes issued pursuant to such Supplement
remain outstanding;
(iii) each series of Additional Notes issued under this
Agreement shall be in substantially the form of Exhibit 1 to Exhibit S
hereto with such variations, omissions and insertions as are necessary
or permitted hereunder;
(iv) the minimum principal amount of any series of Notes
issued under a Supplement shall be $10,000,000, except as may be
necessary to evidence the
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NRP (Operating) LLC Note Purchase Agreement
outstanding amount of any Note originally issued in a denomination of
$1,000,000 or more;
(v) all Additional Notes shall mature more than one year
after the issuance thereof and shall constitute Debt of the Company and
shall rank pari passu with all other outstanding Notes; and
(vi) no Additional Notes shall be issued hereunder if at the
time of issuance thereof and after giving effect to the application of
the proceeds thereof, any Default or Event of Default shall have
occurred and be continuing.
SECTION 3. CLOSING.
The sale and purchase of the 2003 Notes to be purchased by you and the
Other Purchasers shall occur at the offices of Chapman and Cutler, 111 West
Monroe St., Chicago, IL 60603, at 10:00 A.M. Chicago time, on the date or dates
set forth opposite your name on Schedule A, the first of which shall occur on
June 19, 2003 or on such other Business Day thereafter on or prior to June 20,
2003 as may be agreed upon by the Company and you and the Other Purchasers (the
"First Closing"), and the second of which shall occur on or prior to September
19, 2003 or on such other Business Day thereafter as may be agreed upon by the
Company and you and the Other Purchasers (the "Second Closing") (the First
Closing and the Second Closing hereinafter each being referred to, individually,
as a "Closing"). At each Closing the Company will deliver to you the 2003 Notes
to be purchased by you in the form of a single 2003 Note for each series (or
such greater number of Notes of the appropriate series in denominations of at
least $1,000,000 as you may request) dated the date of the Closing and
registered in your name (or in the name of your nominee), against delivery by
you to the Company or its order of immediately available funds in the amount of
the purchase price therefor by wire transfer of immediately available funds for
the account of the Company to account number 01561106604 at The Huntington
National Bank, 919 Fifth Avenue, Huntington, West Virginia 25701, ABA Number
044000024. If at the relevant Closing the Company shall fail to tender such 2003
Notes to you as provided above in this Section 3, or any of the conditions
specified in Section 4 shall not have been fulfilled to your satisfaction, you
shall, at your election, be relieved of all further obligations under this
Agreement, without thereby waiving any rights you may have by reason of such
failure or such nonfulfillment.
SECTION 4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the 2003 Notes to be sold to
you at each respective Closing is subject to the fulfillment to your
satisfaction, prior to or at such Closing, of the following conditions:
Section 4.1. Representations and Warranties. The representations and
warranties of the Obligors in the Financing Agreements shall be correct when
made and at the time of such Closing.
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NRP (Operating) LLC Note Purchase Agreement
Section 4.2. Performance; No Default. Each Obligor shall have performed
and complied with all agreements and conditions contained in each Financing
Agreement required to be performed or complied with by it prior to or at the
Closing and after giving effect to the issue and sale of the 2003 Notes (and the
application of the proceeds thereof as contemplated by Schedule 5.14) no Default
or Event of Default shall have occurred and be continuing. Neither the Company
nor any Subsidiary shall have entered into any transaction since the date of the
Memorandum that would have been prohibited by Section 10 hereof had such Section
applied since such date.
Section 4.3. Compliance Certificates.
(a) Officer's Certificate. Each Obligor shall have delivered to you an
Officer's Certificate, dated the date of such Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate. Each Obligor shall have delivered to you a
certificate certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and delivery of
the 2003 Notes and the other Financing Agreements to which it is a party.
Section 4.4. Opinions of Counsel. You shall have received opinions in
form and substance reasonably satisfactory to you, dated the date of such
Closing (a)(i) from Vinson & Elkins L.L.P., counsel for the Obligors, covering
the matters set forth in Exhibit 4.4(a)(i) and covering such other matters
incident to the transactions contemplated hereby as you or your counsel may
reasonably request (and the Obligors hereby instruct such counsel to deliver
such opinion to you) and (ii) from Wyatt Hogan, Vice President and General
Counsel to the Company, covering the matters set forth in Exhibit 4.4(a)(ii) and
covering such other matters incident to the transactions contemplated hereby as
you or your counsel may reasonably request (and the Obligors hereby instruct
such counsel to deliver such opinion to you) and (b) from Chapman and Cutler,
your special counsel in connection with such transactions, substantially in the
form set forth in Exhibit 4.4(b) and covering such other matters incident to
such transactions as you may reasonably request.
Section 4.5. Purchase Permitted by Applicable Law, Etc. On the date of
such Closing your purchase of 2003 Notes shall (i) be permitted by the laws and
regulations of each jurisdiction to which you are subject, without recourse to
provisions (such as Section 1405(a)(8) of the New York Insurance Law) permitting
limited investments by insurance companies without restriction as to the
character of the particular investment, (ii) not violate any applicable law or
regulation (including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System) and (iii) not subject you to any tax,
penalty or liability under or pursuant to any applicable law or regulation,
which law or regulation was not in effect on the date hereof. If requested by
you, you shall have received an Officer's Certificate certifying as to such
matters of fact as you may reasonably specify to enable you to determine whether
such purchase is so permitted.
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NRP (Operating) LLC Note Purchase Agreement
Section 4.6. Sale of Other Notes. (a) Contemporaneously with such
Closing, the Company shall sell to the Other Purchasers, and the Other
Purchasers shall purchase, the 2003 Notes to be purchased by them at such
Closing as specified in Schedule A.
(b) As a condition to the Second Closing, the Company shall have issued
and sold 100% of the Notes to be issued and sold on the date of the First
Closing in accordance with the terms and provisions hereof.
Section 4.7. Payment of Special Counsel Fees. Without limiting the
provisions of Section 15.1, the Company shall have paid on or before such
Closing the reasonable fees, charges and disbursements of your special counsel
referred to in Section 4.4 to the extent reflected in a statement of such
counsel rendered to the Company at least one Business Day prior to such Closing.
Section 4.8. Private Placement Number. A Private Placement number
issued by Standard & Poor's CUSIP Service Bureau (in cooperation with the
Securities Valuation Office of the National Association of Insurance
Commissioners) shall have been obtained for each series of the 2003 Notes.
Section 4.9. Changes in Corporate Structure. No Obligor shall have
changed its jurisdiction of organization or been a party to any merger or
consolidation and shall not have succeeded to all or any substantial part of the
liabilities of any other entity, at any time following the date of the most
recent financial statements referred to in Schedule 5.5.
Section 4.10. Funding Instructions. At least three Business Days prior
to the date of such Closing, you shall have received written instructions
executed by a Responsible Officer directing the manner of the payment of funds
and setting forth (i) the name and address of the transferee bank, (ii) such
transferee bank's ABA number and (iii) the account name and number into which
the purchase price for the Notes is to be deposited.
Section 4.11. Subsidiary Guarantee. The Subsidiary Guarantee shall have
been executed and delivered by each of the Subsidiary Guarantors and shall be
substantially in the form of Exhibit 4.11 hereto.
Section 4.12. Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated by the Financing
Agreements and all documents and instruments incident to such transactions shall
be reasonably satisfactory to you and your special counsel, and you and your
special counsel shall have received all such counterpart originals or certified
or other copies of such documents as you or they may reasonably request.
Section 4.13. Conditions to Issuance of Additional Notes. The
obligations of the Additional Purchasers to purchase any Additional Notes shall
be subject to the following conditions precedent, in addition to the conditions
specified in the Supplement pursuant to which such Additional Notes may be
issued:
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NRP (Operating) LLC Note Purchase Agreement
(a) Compliance Certificate. A duly authorized Senior
Financial Officer of each Obligor shall execute and deliver to each
Additional Purchaser and each holder of Notes an Officer's Certificate
dated the date of issue of such series of Additional Notes stating that
such officer has reviewed the provisions of this Agreement (including
any Supplements hereto) and setting forth the information and
computations (in sufficient detail) required in order to establish
whether the Company and its Subsidiaries is in compliance with the
requirements of Section 10 on such date.
(b) Execution and Delivery of Supplement. The Company and
each such Additional Purchaser shall execute and deliver a Supplement
substantially in the form of Exhibit S hereto.
(c) Representations of Additional Purchasers. Each Additional
Purchaser shall have confirmed in the Supplement that the
representations set forth in Section 6 are true with respect to such
Additional Purchaser on and as of the date of issue of the Additional
Notes.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
Section 5.1. Organization; Power and Authority. The Company is a
limited liability company organized, validly existing and in good standing under
the laws of its jurisdiction of organization, and is duly qualified as a foreign
limited liability company and is in good standing in each jurisdiction in which
such qualification is required by law, other than those jurisdictions as to
which the failure to be so qualified or in good standing could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
The Company has the limited liability company power and authority to own or hold
under lease the properties it purports to own or hold under lease, to transact
the business it transacts and proposes to transact, to execute and deliver this
Agreement and the Other Agreements and the 2003 Notes and to perform the
provisions hereof and thereof. The Parent is the sole member of the Company.
Section 5.2. Authorization, Etc. This Agreement and the Other
Agreements and the 2003 Notes have been duly authorized by all necessary limited
liability company action on the part of the Company, and this Agreement
constitutes, and upon execution and delivery thereof each 2003 Note will
constitute, a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 5.3. Disclosure. The Company, through its agents, SPP Capital
Partners, LLC and BB&T Capital Markets Inc., has delivered to you and each Other
Purchaser a copy of a Confidential Direct Placement Memorandum, dated May 2003
(the "Memorandum"), relating to the transactions contemplated hereby. The
Memorandum fairly describes, in all material respects, the general nature of the
business and principal properties of the Company and its
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NRP (Operating) LLC Note Purchase Agreement
Subsidiaries. This Agreement, the Memorandum, the documents, certificates or
other writings delivered to you by or on behalf of the Company in connection
with the transactions contemplated hereby and the financial statements listed in
Schedule 5.5, taken as a whole, do not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which they
were made. Except as disclosed in the Memorandum, or in one of the documents,
certificates or other writings identified therein, or in the financial
statements listed in Schedule 5.5, since December 31, 2002 there has been no
change in the financial condition, operations, business, properties or prospects
of the Company or any Subsidiary except changes that individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
There is no fact known to the Company that could reasonably be expected to have
a Material Adverse Effect that has not been set forth herein or in the
Memorandum or in the other documents, certificates and other writings delivered
to you by or on behalf of the Company specifically for use in connection with
the transactions contemplated hereby.
Section 5.4. Organization and Ownership of Shares of Subsidiaries;
Affiliates. (a) Schedule 5.4 contains (except as noted therein) complete and
correct lists (i) of the Company's Subsidiaries, showing, as to each Subsidiary,
the correct name thereof, the jurisdiction of its organization, and the
percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other Subsidiary, (ii) of
the Company's Affiliates, other than Subsidiaries, and (iii) of the Company's
senior officers.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company
and its Subsidiaries have been validly issued, are fully paid and nonassessable
(except as such non-assessibility may be affected by Section 18-607 of the
Delaware Limited Liability Company Act) and are owned by the Company or another
Subsidiary free and clear of any Lien (except as otherwise disclosed in Schedule
5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or
other legal entity duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization, and is duly qualified as a foreign
limited liability company or other legal entity and is in good standing in each
jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each such Subsidiary has the limited liability company
or other power and authority to own or hold under lease the properties it
purports to own or hold under lease and to transact the business it transacts
and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any legal
restriction or any agreement (other than this Agreement, the agreements listed
on Schedule 5.4 and customary limitations imposed by limited liability company
law statutes) restricting the ability of such Subsidiary to pay dividends out of
profits or make any other similar distributions of profits to the Company or any
of its Subsidiaries that owns outstanding shares of capital stock or similar
equity interests of such Subsidiary.
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NRP (Operating) LLC Note Purchase Agreement
(e) Each Subsidiary which is an obligor or guarantor, directly or
indirectly, in respect of the Bank Agreement is a Subsidiary Guarantor
hereunder.
Section 5.5. Financial Statements. The Company has delivered to each
Purchaser copies of the financial statements of the Company and its Subsidiaries
listed on Schedule 5.5. All of said financial statements (including in each case
the related schedules and notes) fairly present in all material respects the
consolidated financial position of the Company and its Subsidiaries as of the
respective dates specified in such Schedule and the consolidated results of
their operations and cash flows for the respective periods so specified and have
been prepared in accordance with GAAP consistently applied throughout the
periods involved except as set forth in the notes thereto (subject, in the case
of any interim financial statements, to normal year-end adjustments).
Section 5.6. Compliance with Laws, Other Instruments, Etc. The
execution, delivery and performance by the Company of this Agreement and the
Notes will not (i) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any property of the
Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or any other
agreement or instrument to which the Company or any Subsidiary is bound or by
which the Company or any Subsidiary or any of their respective properties may be
bound or affected, (ii) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to the Company or any Subsidiary
or (iii) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company or any Subsidiary.
Section 5.7. Governmental Authorizations, Etc. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or performance
by the Company of this Agreement or the Notes.
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) There are no actions, suits or proceedings pending or, to the knowledge of
the Company, threatened against or affecting the Company or any Subsidiary or
any property of the Company or any Subsidiary in any court or before any
arbitrator of any kind or before or by any Governmental Authority that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any term
of any agreement or instrument to which it is a party or by which it is bound,
or any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law, ordinance, rule
or regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.9. Taxes. The Company and its Subsidiaries have filed all tax
returns that are required to have been filed in any jurisdiction, and have paid
all taxes shown to be due and payable on such returns and all other taxes and
assessments levied upon them or their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and
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NRP (Operating) LLC Note Purchase Agreement
payable and before they have become delinquent, except for any taxes and
assessments (i) the amount of which is not individually or in the aggregate
Material or (ii) the amount, applicability or validity of which is currently
being contested in good faith by appropriate proceedings and with respect to
which the Company or a Subsidiary, as the case may be, has established adequate
reserves in accordance with GAAP. The Company knows of no basis for any other
tax or assessment that could reasonably be expected to have a Material Adverse
Effect. The charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of Federal, state or other taxes for all fiscal periods
are adequate.
Section 5.10. Title to Property; Leases. The Company and its
Subsidiaries have good and sufficient title to their respective properties that
individually or in the aggregate are Material, including all such properties
reflected in the most recent audited balance sheet referred to in Section 5.5 or
purported to have been acquired by the Company or any Subsidiary after said date
(except as sold or otherwise disposed of in the ordinary course of business), in
each case free and clear of Liens prohibited by this Agreement. All leases that
individually or in the aggregate are Material are valid and subsisting and are
in full force and effect in all material respects.
Section 5.11. Licenses, Permits, and Intellectual Property. (a) The
Company and its Subsidiaries own or possess all licenses, permits, franchises
and authorizations that individually or in the aggregate are Material, without
known conflict with the rights of others;
(b) the Company and its Subsidiaries own or have a license to use all
patents, copyrights, service marks, trademarks and trade names or other
intellectual property rights thereto, that individually or in the aggregate are
Material, without known conflict with, or infringement upon, the rights of
others;
(c) to the knowledge of the Company, no product of the Company
infringes in any Material respect any patent, copyright, service mark,
trademark, trade name or other intellectual property right owned by any other
Person; and
(d) to the knowledge of the Company, there is no Material violation by
any Person of any right of the Company or any of its Subsidiaries with respect
to any patent, copyright, service mark, trademark, trade name or other
intellectual property right owned or used by the Company or any of its
Subsidiaries.
Section 5.12. Compliance with ERISA. (a) The Company and each ERISA
Affiliate have operated and administered each Plan in compliance with all
applicable laws except for such instances of noncompliance as have not resulted
in and could not reasonably be expected to result in a Material Adverse Effect.
Neither the Company nor any ERISA Affiliate has incurred any liability pursuant
to Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in Section 3 of ERISA), and no
event, transaction or condition has occurred or exists that could reasonably be
expected to result in the incurrence of any such liability by the Company or any
ERISA Affiliate, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate, in either case
pursuant to Title I or IV of ERISA or to such penalty or excise tax provisions
or to
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NRP (Operating) LLC Note Purchase Agreement
Section 401(a)(29) or 412 of the Code, other than such liabilities or Liens as
would not be individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under each
of the Plans (other than Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial valuation
report, did not exceed the aggregate current value of the assets of such Plan
allocable to such benefit liabilities. The term "benefit liabilities" has the
meaning specified in section 4001 of ERISA and the terms "current value" and
"present value" have the meaning specified in section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred unpaid
withdrawal liabilities (and are not subject to contingent withdrawal
liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer
Plans that individually or in the aggregate are Material.
(d) The expected post-retirement benefit obligation (determined as of
the last day of the Company's most recently ended fiscal year in accordance with
Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Company and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the issuance and
sale of the Notes hereunder will not involve any transaction that is subject to
the prohibitions of section 406 of ERISA or in connection with which a tax could
be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation
by the Company in the first sentence of this Section 5.12(e) is made in reliance
upon and subject to the accuracy of your representation in Section 6.2 as to the
sources of the funds used to pay the purchase price of the Notes to be purchased
by you.
Section 5.13. Private Offering by the Company. Neither the Company nor
anyone acting on its behalf has offered the Notes or the Subsidiary Guarantee or
any similar securities for sale to, or solicited any offer to buy any of the
same from, or otherwise approached or negotiated in respect thereof with, any
person other than you, the Other Purchasers and not more than [_] other
Institutional Investors, each of which has been offered the Notes and the
Subsidiary Guarantee at a private sale for investment. Neither the Company nor
anyone acting on its behalf has taken, or will take, any action that would
subject the issuance or sale of the Notes or the Subsidiary Guarantee to the
registration requirements of Section 5 of the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The Company will
apply the proceeds of the sale of the Notes to reduce bank borrowing and for
general limited liability company purposes. No part of the proceeds from the
sale of the Notes hereunder will be used, directly or indirectly, for the
purpose of buying or carrying any margin stock within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for
the purpose of buying or carrying or trading in any securities under such
circumstances as to involve the Company in a violation of Regulation X of said
Board (12 CFR 224) or to involve any broker or dealer in a violation of
Regulation T of said Board (12 CFR 220). Margin stock does not constitute more
than 1.00% of the value of the consolidated assets of the Company and
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NRP (Operating) LLC Note Purchase Agreement
its Subsidiaries and the Company does not have any present intention that margin
stock will constitute more than 1.00% of the value of such assets. As used in
this Section, the terms "margin stock" and "purpose of buying or carrying" shall
have the meanings assigned to them in said Regulation U.
Section 5.15. Existing Debt; Future Liens. (a) Except as described in
Schedule 5.15, since March 31, 2003 there has been no Material change in the
amounts, interest rates, sinking funds, installment payments or maturities of
the Debt of the Company or its Subsidiaries from the description of Debt of the
Company and its Subsidiaries contained in the quarterly balance sheet of the
Company for the period ended March 31, 2003, referred to in Schedule 5.15.
Neither the Company nor any Subsidiary is in default and no waiver of default is
currently in effect, in the payment of any principal or interest on any Debt of
the Company or such Subsidiary and no event or condition exists with respect to
any Debt of the Company or any Subsidiary that would permit (or that with notice
or the lapse of time, or both, would permit) one or more Persons to cause such
Debt to become due and payable before its stated maturity or before its
regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Company nor any
Subsidiary has agreed or consented to cause or permit in the future (upon the
happening of a contingency or otherwise) any of its property, whether now owned
or hereafter acquired, to be subject to a Lien not permitted by Section 10.3.
Section 5.16. Foreign Assets Control Regulations, Etc. Neither the sale
of the Notes by the Company hereunder nor its use of the proceeds thereof will
violate the Trading with the Enemy Act, as amended, or any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order
relating thereto. Without limiting the foregoing, neither the Company nor any of
its Subsidiaries (a) is a person whose property or interests in property are
blocked pursuant to Section 1 of Executive Order 13224 of September 23, 2001
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) or (b) engages in
any Material dealings or transactions, or is otherwise associated, with any such
person.
The Company and its Subsidiaries are in compliance, to the extent
applicable to the Company and its Subsidiaries, in all material respects, with
the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA Patriot Act of 2001). No part of the
proceeds from the sale of the Notes hereunder will be used, directly or
indirectly, for any payment to any governmental official or employee, political
party, official of a political party, candidate for political office or anyone
else acting in an official capacity, in order to obtain, retain or direct
business, in violation of the United States Foreign Corrupt Practices Act of
1977, as amended.
Section 5.17. Status under Certain Statutes. Neither the Company nor any
Subsidiary is an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, or is subject to
regulation under the Public Utility Holding Company Act of 1935, as amended, or
the ICC Termination Act of 1995, as amended.
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NRP (Operating) LLC Note Purchase Agreement
Section 5.18. Notes Rank Pari Passu. The obligations of the Company
under this Agreement and the 2003 Notes rank at least pari passu in right of
payment with all other unsubordinated unsecured Debt of the Company, including,
without limitation, all senior unsecured Debt of the Company described in
Schedule 5.15 hereto.
Section 5.19. Environmental Matters. (a) Neither the Company nor any
Subsidiary has knowledge of any claim or has received any notice of any claim,
and, to the Company's knowledge, no proceeding has been instituted raising any
claim against the Company or any of its Subsidiaries or any of their respective
real properties or other assets now or formerly owned, leased or operated by any
of them, alleging any damage to the environment or violation of any
Environmental Laws, except, in each case, as could not reasonably be expected to
result in a Material Adverse Effect.
(b) neither the Company nor any Subsidiary has knowledge of any facts
which would give rise to any claim, public or private, of violation of
Environmental Laws or damage to the environment emanating from, occurring on or
in any way related to real properties or other assets now or formerly owned,
leased, used or operated by any of them, except, in each case, as could not
reasonably be expected to result in a Material Adverse Effect;
(c) neither the Company nor any of its Subsidiaries has stored any
Hazardous Materials on real properties now or formerly owned, leased or operated
by any of them and has not disposed of any Hazardous Materials in a manner
contrary to any Environmental Laws in each case in any manner that could
reasonably be expected to result in a Material Adverse Effect; and
(d) all buildings on all real properties now owned, leased or operated
by the Company or any of its Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply could not reasonably be
expected to result in a Material Adverse Effect.
Section 5.20. Subsidiary Guarantors. Each Subsidiary as of the date of
Closing has executed and delivered the Subsidiary Guarantee.
SECTION 6. REPRESENTATIONS OF THE PURCHASER.
Section 6.1. Purchase for Investment. You represent that you are
purchasing the Notes for your own account or for one or more separate accounts
maintained by you or for the account of one or more pension or trust funds and
not with a view to the distribution thereof, provided that the disposition of
your or their property shall at all times be within your or their control. You
understand that the Notes have not been registered under the Securities Act and
may be resold only if registered pursuant to the provisions of the Securities
Act or if an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption is required
by law, and that the Company is not required to register the Notes.
Section 6.2. Source of Funds. You represent that at least one of the
following statements is an accurate representation as to each source of funds (a
"Source") to be used by you to pay the purchase price of the Notes to be
purchased by you hereunder:
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NRP (Operating) LLC Note Purchase Agreement
(a) the Source is an "insurance company general account" (as
the term is defined in the United States Department of Labor's
Prohibited Transaction Exemption ("PTE") 95-60) in respect of which the
reserves and liabilities (as defined by the annual statement for life
insurance companies approved by the National Association of Insurance
Commissioners (the "NAIC Annual Statement")) for the general account
contract(s) held by or on behalf of any employee benefit plan together
with the amount of the reserves and liabilities for the general account
contract(s) held by or on behalf of any other employee benefit plans
maintained by the same employer (or affiliate thereof as defined in PTE
95-60) or by the same employee organization in the general account do
not exceed 10% of the total reserves and liabilities of the general
account (exclusive of separate account liabilities) plus surplus as set
forth in the NAIC Annual Statement filed with your state of domicile;
or
(b) the Source is a separate account that is maintained
solely in connection with your fixed contractual obligations under
which the amounts payable, or credited, to any employee benefit plan
(or its related trust) that has any interest in such separate account
(or to any participant or beneficiary of such plan (including an
annuitant)) are not affected in any manner by the investment
performance of the separate account; or
(c) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 or (ii) a bank
collective investment fund, within the meaning of PTE 91-38 and, except
as you have disclosed to the Company in writing pursuant to this clause
(c), no employee benefit plan or group of plans maintained by the same
employer or employee organization beneficially owns more than 10% of
all assets allocated to such pooled separate account or collective
investment fund; or
(d) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of PTE 84-14 (the "QPAM Exemption"))
managed by a "qualified professional asset manager" or "QPAM" (within
the meaning of Part V of the QPAM Exemption), no employee benefit
plan's assets that are included in such investment fund, when combined
with the assets of all other employee benefit plans established or
maintained by the same employer or by an affiliate (within the meaning
of section V(c)(1) of the QPAM Exemption) of such employer or by the
same employee organization and managed by such QPAM, exceed 20% of the
total client assets managed by such QPAM, the conditions of Part I(c)
and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a
Person controlling or controlled by the QPAM (applying the definition
of "control" in section V(e) of the QPAM Exemption) owns a 5% or more
interest in the Company and (i) the identity of such QPAM and (ii) the
names of all employee benefit plans whose assets are included in such
investment fund have been disclosed to the Company in writing pursuant
to this clause (d); or
(e) the Source constitutes assets of a "plan(s)" (within the
meaning of Section IV of PTE 96-23 (the "INHAM Exemption") managed by
an "in-house asset manager" or INHAM" (within the meaning of Part IV of
the INHAM exemption), the conditions of Part I(a), (g) and (h) of the
INHAM Exemption are satisfied, neither the INHAM nor a Person
controlling or controlled by the INHAM (applying the definition of
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NRP (Operating) LLC Note Purchase Agreement
"control" in Section IV(h) of the INHAM Exemption) owns a 5% or more
interest in the Company and (i) the identity of such INHAM and (ii) the
name(s) of the employee benefit plan(s) whose assets constitute the
Source have been disclosed to the Company in writing pursuant to this
clause (e); or
(f) the Source is a governmental plan; or
(g) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Company in
writing pursuant to this clause (g); or
(h) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan," "governmental
plan," and "separate account" shall have the respective meanings assigned to
such terms in section 3 of ERISA.
SECTION 7. INFORMATION AS TO COMPANY.
Section 7.1. Financial and Business Information. The Company shall
deliver to each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end of
each quarterly fiscal period in each fiscal year of the Company (other
than the last quarterly fiscal period of each such fiscal year),
duplicate copies of:
(i) a consolidated balance sheet of the Company and
its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in
members capital and cash flows of the Company and its
Subsidiaries for such quarter and (in the case of the second
and third quarters) for the portion of the fiscal year ending
with such quarter,
setting forth in each case in comparative form the figures for the corresponding
periods in the previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP applicable to quarterly financial statements generally, and
certified by a Senior Financial Officer as fairly presenting, in all material
respects, the financial position of the companies being reported on and their
results of operations and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time period specified above of
copies of the Company's Quarterly Report on Form 10-Q, if any, prepared in
compliance with the requirements therefor and filed with the Securities and
Exchange Commission shall be deemed to satisfy the requirements of this Section
7.1(a);
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NRP (Operating) LLC Note Purchase Agreement
(b) Annual Statements-- within 105 days after the end of each
fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in
members capital and cash flows of the Company and its
Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied
(A) by an opinion thereon of independent
certified public accountants of recognized national
standing, which opinion shall state that such
financial statements present fairly, in all material
respects, the financial position of the companies
being reported upon and their results of operations
and cash flows and have been prepared in conformity
with GAAP, and that the examination of such
accountants in connection with such financial
statements has been made in accordance with generally
accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the
circumstances, and
(B) a certificate of such accountants
stating that they have reviewed this Agreement and
stating further whether, in making their audit, they
have become aware of any condition or event that then
constitutes a Default or an Event of Default, and, if
they are aware that any such condition or event then
exists, specifying the nature and period of the
existence thereof (it being understood that such
accountants shall not be liable, directly or
indirectly, for any failure to obtain knowledge of
any Default or Event of Default unless such
accountants should have obtained knowledge thereof in
making an audit in accordance with generally accepted
auditing standards or did not make such an audit),
provided that the delivery within the time period specified above of
the Company's Annual Report on Form 10-K, if any, for such fiscal year
(together with the Company's annual report to shareholders, if any,
prepared pursuant to Rule 14a-3 under the Exchange Act) prepared in
accordance with the requirements therefor and filed with the Securities
and Exchange Commission, together with the accountant's certificate
described in clause (B) above, shall be deemed to satisfy the
requirements of this Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, report, notice or
proxy statement sent by the Parent, the Company or any Subsidiary to
public securities holders generally, and (ii) each regular or periodic
report, each registration statement (without exhibits except as
expressly requested by such holder), and each prospectus and all
amendments thereto
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NRP (Operating) LLC Note Purchase Agreement
filed by the Parent, the Company or any Subsidiary with the Securities
and Exchange Commission and of all press releases and other statements
made available generally by the Parent, the Company or any Subsidiary
to the public, in each case, concerning developments that are Material;
(d) Notice of Default or Event of Default -- promptly, and in
any event within five days after a Responsible Officer becoming aware
of the existence of any Default or Event of Default or that any Person
has given any notice or taken any action with respect to a claimed
default hereunder or that any Person has given any notice or taken any
action with respect to a claimed default of the type referred to in
Section 11(f), a written notice specifying the nature and period of
existence thereof and what action the Company is taking or proposes to
take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five
days after a Responsible Officer becoming aware of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that the Company or an ERISA Affiliate proposes to take
with respect thereto:
(i) with respect to any Plan, any reportable event,
as defined in section 4043(c) of ERISA and the regulations
thereunder, for which notice thereof has not been waived
pursuant to such regulations as in effect on the date hereof;
or
(ii) the taking by the PBGC of steps to institute, or
the threatening by the PBGC of the institution of, proceedings
under section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan if such
proceedings or action could reasonably be expected to have a
Material Adverse Effect; or
(iii) any event, transaction or condition that could
result in the incurrence of any liability by the Company or
any ERISA Affiliate pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to
employee benefit plans, or in the imposition of any Lien on
any of the rights, properties or assets of the Company or any
ERISA Affiliate pursuant to Title I or IV of ERISA or such
penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then
existing, could reasonably be expected to have a Material
Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and in
any event within 30 days of receipt thereof, copies of any notice to
the Company or any Subsidiary from any Federal or state Governmental
Authority relating to any order, ruling, statute or other law or
regulation that could reasonably be expected to have a Material Adverse
Effect; and
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NRP (Operating) LLC Note Purchase Agreement
(g) Supplements -- promptly and in any event within Five (5)
Business Days after the execution and delivery of any Supplement, a
copy thereof; and
(h) Requested Information -- with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition, assets or properties of the Parent, the
Company or any of its Subsidiaries or relating to the ability of an
Obligor to perform its obligations hereunder and under the Notes or the
Subsidiary Guarantee as from time to time may be reasonably requested
by any such holder of Notes.
Section 7.2. Officer's Certificate. Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b)
hereof shall be accompanied by a certificate of a Senior Financial Officer
setting forth:
(a) Covenant Compliance -- the information (including
detailed calculations) required in order to establish whether the
Company was in compliance with the requirements of Section 10.3 through
Section 10.8 hereof, inclusive, during, or as of the end of, the
quarterly or annual period covered by the statements then being
furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of such
Sections, and the calculation of the amount, ratio or percentage then
in existence); and
(b) Event of Default -- a statement that such officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and
conditions of the Company and its Subsidiaries from the beginning of
the quarterly or annual period covered by the statements then being
furnished to the date of the certificate and that such review shall not
have disclosed the existence during such period of any condition or
event that constitutes a Default or an Event of Default or, if any such
condition or event existed or exists (including, without limitation,
any such event or condition resulting from the failure of the Company
or any Subsidiary to comply with any Environmental Law), specifying the
nature and period of existence thereof and what action the Company
shall have taken or proposes to take with respect thereto.
Section 7.3. Inspection. The Company shall permit the representatives
of each holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior notice
to the Company, to visit the principal executive office of the Company,
to discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company's senior officers, and (with the consent
of the Company, which consent will not be unreasonably withheld) its
independent public accountants, and (with the consent of the Company,
which consent will not be unreasonably withheld) to visit the other
offices and properties of the Company and each
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NRP (Operating) LLC Note Purchase Agreement
Subsidiary, all at such reasonable times and as often as may be
reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then exists,
at the expense of the Company to visit and inspect any of the offices
or properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and independent
public accountants (and by this provision the Company authorizes said
accountants to discuss the affairs, finances and accounts of the
Company and its Subsidiaries), all at such times and as often as may be
requested.
SECTION 8. PREPAYMENT OF THE 2003 NOTES.
Section 8.1. Required Prepayments. (a) The Company will prepay the
Series A Notes on the dates and in the principal amounts as set forth on
Schedule 8.1(a) attached hereto at par and without payment of the Make-Whole
Amount or any premium, provided that upon any partial prepayment of the Series A
Notes pursuant to Section 8.2 or Section 8.3 or purchase of the Series A Notes
permitted by Section 8.5, the principal amount of each required prepayment of
the Series A Notes becoming due under this Section 8.1 on and after the date of
such prepayment or purchase shall be reduced in the same proportion as the
aggregate unpaid principal amount of the Series A Notes is reduced as a result
of such prepayment or purchase.
(b) The Company will prepay the Series B Notes on the dates and in the
principal amounts as set forth on Schedule 8.1(b) attached hereto at par and
without payment of a Make-Whole Amount or any premium, provided that upon any
partial prepayment of the Series B Notes pursuant to Section 8.2 or Section 8.3
or purchase of the Series B Notes permitted by Section 8.5, the principal amount
of each required prepayment of the Series B Notes becoming due under this
Section 8.1 on or after the day of any such prepayment or purchase shall be
reduced in the same proportion as the aggregate unpaid principal amount of the
Series B Notes is reduced as a result of such prepayment or purchase.
(c) Subject to the provisions of Section 8.3 hereof, the Series C Notes
shall not be subject to required prepayment prior to the date of maturity
thereof.
Section 8.2. Optional Prepayments with Make-Whole Amount. The Company
may, at its option, upon notice as provided below, prepay at any time all, or
from time to time any part of, the 2003 Notes, in an aggregate principal amount
not less than $5,000,000, in the case of a partial prepayment, at 100% of the
principal amount so prepaid, plus the applicable Make-Whole Amount for each
series determined for the prepayment date with respect to such principal amount.
The Company will give each holder of each Series 2003 Note written notice of
each optional prepayment under this Section 8.2 not less than 30 days and not
more than 60 days prior to the date fixed for such prepayment. Each such notice
shall specify such date, the aggregate principal amount of the 2003 Notes of
each series to be prepaid on such date, the principal amount of each 2003 Note
of each series held by such holder to be prepaid (determined in accordance with
Section 8.3), and the interest to be paid on the prepayment date with respect to
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NRP (Operating) LLC Note Purchase Agreement
such principal amount being prepaid, and shall be accompanied by a certificate
of a Senior Financial Officer as to the estimated Make-Whole Amount for each
series due in connection with such prepayment (calculated as if the date of such
notice were the date of the prepayment), setting forth the details of such
computation. Two Business Days prior to such prepayment, the Company shall
deliver to each holder of 2003 Notes of each series a certificate of a Senior
Financial Officer specifying the calculation of such Make-Whole Amount as of the
specified prepayment date.
Section 8.3. Change in Control.
(a) Notice of Change in Control or Control Event. The Company will,
within five (5) Business Days after any Responsible Officer has knowledge of the
occurrence of any Change in Control or Control Event, give written notice (the
"Change of Control Notice") of such Change in Control or Control Event to each
holder of Notes unless notice in respect of such Change in Control (or the
Change of Control contemplated by such Control Event) shall have been given
pursuant to subparagraph (c) of this Section 8.3. Such Change of Control Notice
shall contain and constitute an offer to prepay the 2003 Notes as described in
Section 8.3(c) hereof and shall be accompanied by the certificate described in
Section 8.3(g).
(b) Condition to Company Action. The Company will not take any action
that consummates or finalizes a Change in Control unless (i) at least 30 days
prior to such action it shall have given to each holder of Notes written notice
containing and constituting an offer to prepay Notes as described in
subparagraph (c) of this Section 8.3, accompanied by the certificate described
in subparagraph (g) of this Section 8.3, and (ii) contemporaneously with such
action, it prepays all Notes required to be prepaid in accordance with this
Section 8.3.
(c) Offer to Prepay Notes. The offer to prepay 2003 Notes contemplated
by paragraph (a) and (b) of this Section 8.3 shall be an offer to prepay, in
accordance with and subject to this Section 8.3, all, but not less than all, the
2003 Notes held by each holder (in this case only, "holder" in respect of any
2003 Note registered in the name of a nominee for a disclosed beneficial owner
shall mean such beneficial owner) on a date specified in such Change of Control
Notice (the "Proposed Prepayment Date"). If such Proposed Prepayment Date is in
connection with an offer contemplated by subparagraph (a) of this Section 8.3,
such date shall be not less than 30 days and not more than 120 days after the
date of such offer (if the Proposed Prepayment Date shall not be specified in
such offer, the Proposed Prepayment Date shall be the first Business Day after
the 45th day after the date of such offer).
(d) Acceptance. A holder of Notes may accept the offer to prepay made
pursuant to this Section 8.3 by causing a notice of such acceptance to be
delivered to the Company not later than 15 days after receipt by such holder of
the most recent offer of prepayment. A failure by a holder of Notes to respond
to an offer to prepay made pursuant to this Section 8.3 shall be deemed to
constitute a rejection of such offer by such holder.
(e) Prepayment. Prepayment of the 2003 Notes to be prepaid pursuant to
this Section 8.3 shall be at 100% of the principal amount of the 2003 Notes
together with accrued and
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NRP (Operating) LLC Note Purchase Agreement
unpaid interest thereon. The prepayment shall be made on the Proposed Prepayment
Date except as provided in subparagraph (f) of this Section 8.3.
(f) Deferral Pending Change in Control. The obligation of the Company
to prepay Notes pursuant to the offers required by subparagraph (c) and accepted
in accordance with subparagraph (d) of this Section 8.3 is subject to the
occurrence of the Change in Control in respect of which such offers and
acceptances shall have been made. In the event that such Change in Control has
not occurred on the Proposed Prepayment Date in respect thereof, the prepayment
shall be deferred until, and shall be made on, the date on which such Change in
Control occurs. The Company shall keep each holder of Notes reasonably and
timely informed of (i) any such deferral of the date of prepayment, (ii) the
date on which such Change in Control and the prepayment are expected to occur,
and (iii) any determination by the Company that efforts to effect such Change in
Control have ceased or been abandoned (in which case the offers and acceptances
made pursuant to this Section 8.3 in respect of such Change in Control shall be
deemed rescinded).
(g) Officer's Certificate. Each offer to prepay the 2003 Notes pursuant
to this Section 8.3 shall be accompanied by a certificate, executed by the
Senior Financial Officer of the Company and dated the date of such offer,
specifying: (i) the Proposed Prepayment Date; (ii) that such offer is made
pursuant to this Section 8.3; (iii) the principal amount of each 2003 Note
offered to be prepaid (which shall be 100% of each such 2003 Note); (iv) the
interest that would be due on each 2003 Note offered to be prepaid, accrued to
the Proposed Prepayment Date; (v) that the conditions of this Section 8.3 have
been fulfilled; and (vi) in reasonable detail, the nature and date or proposed
date of the Change in Control.
(h) Certain Definitions. "Change in Control" shall be deemed to have
occurred if
(i) the Parent ceases to own directly all of the membership
interests of the Company,
(ii) the General Partner ceases to own directly all of the
General Partner interests of the Parent, or
(iii) Corbin J. Robertson, Jr., the WPP GROUP, Arch Coal, Inc.
and/or one or more of their direct or indirect wholly-owned
Subsidiaries cease to own, in the aggregate, more than 50% of the
partnership interests of the General Partner.
"Control Event" means (i) the execution by the Company or any of its
Subsidiaries or Affiliates of any agreement or letter of intent with respect to
any proposed transaction or event or series of transactions or events which,
individually or in the aggregate, may reasonably be expected to result in a
Change in Control, or
(ii) the execution of any written agreement which, when fully
performed by the parties thereto, would result in a Change in Control.
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NRP (Operating) LLC Note Purchase Agreement
(i) All calculations contemplated in this Section 8.3 involving the
capital stock or limited liability company or other equity interest of any
Person shall be made with the assumption that all convertible securities of such
Person then outstanding and all convertible securities issuable upon the
exercise of any warrants, options and other rights outstanding at such time were
converted at such time and that all options, warrants and similar rights to
acquire shares of capital stock or limited liability company or other equity
interest of such Person were exercised at such time.
Section 8.4. Allocation of Partial Prepayments. In the case of each
partial prepayment of the Series A Notes and the Series B Notes pursuant to
Section 8.1, the principal amount of Notes of a series to be prepaid shall be
allocated among all of the Notes of that series at the time outstanding in
proportion, as nearly as practicable, to the respective unpaid principal amounts
thereof. In the case of each partial prepayment of the 2003 Notes pursuant to
Section 8.2, the principal amount of the 2003 Notes to be prepaid shall be
allocated among all of the 2003 Notes at the time outstanding in proportion, as
nearly as practicable, to the respective unpaid principal amounts thereof not
theretofore called for prepayment.
Section 8.5. Maturity; Surrender, Etc. In the case of each prepayment
of 2003 Notes pursuant to this Section 8, the principal amount of each 2003 Note
to be prepaid shall mature and become due and payable on the date fixed for such
prepayment, together with interest on such principal amount accrued to such date
and the applicable Make-Whole Amount, if any. From and after such date, unless
the Company shall fail to pay such principal amount when so due and payable,
together with the interest and Make-Whole Amount, if any, as aforesaid, interest
on such principal amount shall cease to accrue. Any 2003 Note paid or prepaid in
full shall be surrendered to the Company and cancelled and shall not be
reissued, and no 2003 Note shall be issued in lieu of any prepaid principal
amount of any 2003 Note.
Section 8.6. Purchase of Notes. The Company will not and will not
permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly
or indirectly, any of the outstanding 2003 Notes except upon the payment or
prepayment of the Notes in accordance with the terms of this Agreement and the
2003 Notes. The Company will promptly cancel all 2003 Notes acquired by it or
any Affiliate pursuant to any payment, prepayment or purchase of 2003 Notes
pursuant to any provision of this Agreement and no 2003 Notes may be issued in
substitution or exchange for any such Notes.
Section 8.7. Make-Whole Amount. The term "Make-Whole Amount" means,
with respect to any 2003 Note of any series, an amount equal to the excess, if
any, of the Discounted Value of the Remaining Scheduled Payments with respect to
the Called Principal of such 2003 Note over the amount of such Called Principal,
provided that the Make-Whole Amount may in no event be less than zero. For the
purposes of determining the Make-Whole Amount, the following terms have the
following meanings:
"Called Principal" means, with respect to any 2003 Note, the
principal of such Note that is to be prepaid pursuant to Section 8.2 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
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NRP (Operating) LLC Note Purchase Agreement
"Discounted Value" means, with respect to the Called Principal
of any 2003 Note of any series, the amount obtained by discounting all
Remaining Scheduled Payments with respect to such Called Principal from
their respective scheduled due dates to the Settlement Date with
respect to such Called Principal, in accordance with accepted financial
practice and at a discount factor (applied on the same periodic basis
as that on which interest on the 2003 Notes is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of any 2003 Note of any series, .50% over the yield to
maturity implied by (i) the yields reported, as of 10:00 A.M. (New York
City time) on the second Business Day preceding the Settlement Date
with respect to such Called Principal of such series, on the display
designated as "Page PX1" of the Bloomberg Financial Markets Services
Screen (or, if not available, any other national recognized trading
screen reporting on-line intraday trading in the U.S. Treasury
securities) for actively on-the-run traded U.S. Treasury securities
having a maturity equal to the Remaining Average Life of such series of
such Called Principal as of such Settlement Date, or (ii) if such
yields are not reported as of such time or the yields reported as of
such time are not ascertainable, the Treasury Constant Maturity Series
Yields reported, for the latest day for which such yields have been so
reported as of the second Business Day preceding the Settlement Date
with respect to such Called Principal, in Federal Reserve Statistical
Release H.15 (519) (or any comparable successor publication) for
actively traded on-the-run U.S. Treasury securities having a constant
maturity equal to the Remaining Average Life of such Called Principal
as of such Settlement Date. Such implied yield will be determined, if
necessary, by (a) converting U.S. Treasury bill quotations to
bond-equivalent yields in accordance with accepted financial practice
and (b) interpolating linearly between (1) the actively traded
on-the-run U.S. Treasury security with the maturity closest to and
greater than the Remaining Average Life and (2) the actively traded
on-the-run U.S. Treasury security with the maturity closest to and less
than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth year)
that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
"Remaining Scheduled Payments" means, with respect to the
Called Principal of any 2003 Note of any Series, all payments of such
Called Principal of such series and interest thereon that would be due
after the Settlement Date with respect to such Called Principal if no
payment of such Called Principal were made prior to its scheduled due
date, provided that if such Settlement Date is not a date on which
interest payments are due to be made under the terms of the 2003 Notes
of such series, then the amount of the next succeeding scheduled
interest payment will be reduced by the amount of interest
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NRP (Operating) LLC Note Purchase Agreement
accrued to such Settlement Date and required to be paid on such
Settlement Date pursuant to Section 8.2 or 12.1.
"Settlement Date" means, with respect to the Called Principal
of any 2003 Note of any series, the date on which such Called Principal
is to be prepaid pursuant to Section 8.2 or has become or is declared
to be immediately due and payable pursuant to Section 12.1, as the
context requires.
SECTION 9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 9.1. Compliance with Law. The Company will and will cause each
of its Subsidiaries to comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without limitation,
Environmental Laws, and will, and will cause each of its Subsidiaries to, obtain
and maintain in effect all licenses, certificates, permits, franchises and other
governmental authorizations necessary to the ownership of their respective
properties or to the conduct of their respective businesses, in each case to the
extent necessary to ensure that non-compliance with such laws, ordinances or
governmental rules or regulations or failures to obtain or maintain in effect
such licenses, certificates, permits, franchises and other governmental
authorizations could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 9.2. Insurance. The Company will and will cause each of its
Subsidiaries to maintain, with financially sound and reputable insurers,
insurance with respect to their respective properties and businesses against
such casualties and contingencies, of such types, on such terms and in such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a similar business
and similarly situated.
Section 9.3. Maintenance of Properties. The Company will and will cause
each of its Subsidiaries to maintain and keep, or cause to be maintained and
kept, their respective properties in good repair, working order and condition in
accordance with industry standards (other than ordinary wear and tear), so that
the business carried on in connection therewith may be properly conducted at all
times, provided that this Section shall not prevent the Company or any
Subsidiary from discontinuing the operation and the maintenance of any of its
properties if such discontinuance is desirable in the conduct of its business
and the Company has concluded that such discontinuance could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.4. Payment of Taxes and Claims. The Company will and will
cause each of its Subsidiaries to file all tax returns required to be filed in
any jurisdiction and to pay and discharge all taxes shown to be due and payable
on such returns and all other taxes, assessments, governmental charges, or
levies imposed on them or any of their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and payable and before
they have become delinquent and all claims for which sums have become due and
payable that
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NRP (Operating) LLC Note Purchase Agreement
have or might become a Lien on properties or assets of the Company or any
Subsidiary, provided that neither the Company nor any Subsidiary need pay any
such tax or assessment or claims if (i) the amount, applicability or validity
thereof is contested by the Company or such Subsidiary on a timely basis in good
faith and in appropriate proceedings, and the Company or a Subsidiary has
established adequate reserves therefor in accordance with GAAP on the books of
the Company or such Subsidiary or (ii) the nonpayment of all such taxes and
assessments in the aggregate could not reasonably be expected to have a Material
Adverse Effect.
Section 9.5. Existence, Etc. The Company will at all times preserve and
keep in full force and effect its limited liability company existence. Subject
to Sections 10.2 and 10.7, the Company will at all times preserve and keep in
full force and effect the limited liability company existence of each of its
Subsidiaries (unless merged into the Company or a Subsidiary) and all rights and
franchises of the Company and its Subsidiaries unless, in the good faith
judgment of the Company, the termination of or failure to preserve and keep in
full force and effect such limited liability company existence, right or
franchise could not, individually or in the aggregate, have a Material Adverse
Effect.
Section 9.6. Notes to Rank Pari Passu. The 2003 Notes and all other
obligations under this Agreement of the Company are and at all times shall
remain direct and unsecured obligations of the Company ranking pari passu as
against the assets of the Company with all other Notes from time to time issued
and outstanding hereunder without any preference among themselves and pari passu
with all other present and future unsecured Debt of the Company which is not
expressed to be subordinate or junior in rank to any other unsecured Debt of the
Company.
Section 9.7. Subsidiary Guarantee; Release. (a) The Company will ensure
at all times that each Subsidiary is a Subsidiary Guarantor.
(b) The Company will cause each Subsidiary that becomes a Subsidiary
after the date of the Closing to execute and deliver the Subsidiary Guarantee or
the Subsidiary Guarantee Supplement, as applicable, (within 5 days of such
Subsidiary being required to become a Subsidiary Guarantor) and provide the
following to each holder of a Note:
(i) an opinion in form and substance reasonably satisfactory
to the Required Holders from counsel to such Subsidiary covering the
authorization, execution and enforceability of the Subsidiary Guarantee
or the Subsidiary Guarantee Supplement, as applicable, and other
matters incident thereto as reasonably required by the Required
Holders; and
(ii) such other certifications and showings as the Required
Holders may reasonably request to establish the legal, valid, binding
and enforceable nature of the Subsidiary Guarantee or the Subsidiary
Guarantee Supplement, as applicable.
(c) Notwithstanding anything in this Agreement, in the Subsidiary
Guarantee or in any Subsidiary Guarantee Supplement to the contrary, upon notice
(the "Section 9.7(c) Notice") by the Company to each holder of a Note (which
Section 9.7(c) Notice shall contain a certification
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NRP (Operating) LLC Note Purchase Agreement
by the Company as to the matters specified in clauses (i) and (ii) or (i) and
(iii), as the case may be, below and, if applicable, a copy of the Investment
Grade Rating), any Subsidiary Guarantor specified in such Section 9.7(c) Notice
shall cease to be a Subsidiary Guarantor and shall be automatically released
from its obligations under the Subsidiary Guarantee (without the need for the
execution or delivery of any other document by the holders of Notes or any other
Person) if, (i) as at the date of such Section 9.7(c) Notice and after giving
effect to such release, no Default or Event of Default shall have occurred and
be continuing, and either (ii) such Subsidiary Guarantor shall no longer be a
Subsidiary of the Company or (iii) such Subsidiary shall not be obligated in
respect of the Bank Agreement (whether as direct obligor, guarantor or
otherwise) and the Company shall have obtained and furnished to each of the
holders in writing an Investment Grade Rating which shall be dated not more than
30 days prior to the date of the Section 9.7(c) Notice.
SECTION 10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1. Transactions with Affiliates. Neither the Company nor any
Subsidiary shall enter into or carry out any transaction with an Affiliate
(including purchasing property or services from or selling property or services
to any Affiliate of the Company or other Person) unless such transaction is not
otherwise prohibited by this Agreement and is on fair and reasonable terms and
conditions no less favorable to the Company or such Subsidiary than would be
obtained in a comparable arm's-length transaction.
Section 10.2. Merger, Consolidation, Etc. The Company shall not
consolidate with or merge with any other corporation, limited liability company
or limited partnership or convey, transfer or lease substantially all of its
assets in a single transaction or series of transactions to any Person unless:
(a) the successor formed by such consolidation or the
survivor of such merger or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety, as the case may be, shall be a solvent corporation, limited
liability company or limited partnership organized and existing under
the laws of the United States or any State thereof (including the
District of Columbia), and, if the Company is not such corporation,
limited liability company or limited partnership (i) such corporation,
limited liability company or limited partnership shall have executed
and delivered to each holder of any Notes its assumption of the due and
punctual performance and observance of each covenant and condition of
this Agreement, the Other Agreements and the Notes and (ii) shall have
caused to be delivered to each holder of any Notes an opinion of
nationally recognized independent counsel, or other independent counsel
reasonably satisfactory to the Required Holders, to the effect that all
agreements or instruments effecting such assumption are enforceable in
accordance with their terms and comply with the terms hereof;
(b) immediately after giving effect to such transaction, (i)
no Default or Event of Default shall have occurred and be continuing;
and (ii) the Company or such successor
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NRP (Operating) LLC Note Purchase Agreement
corporation, limited liability company or limited partnership, as the
case may be, would be able to incur at least $1.00 of additional Debt
under Section 10.6(a)(iii) hereof.
No such conveyance, transfer or lease of substantially all of the assets of the
Company shall have the effect of releasing the Company or any successor
corporation, limited liability company or limited partnership that shall
theretofore have become such in the manner prescribed in this Section 10.2 from
its liability under this Agreement or the Notes.
Section 10.3. Liens. The Company will not, and will not permit any
Subsidiary to, directly or indirectly create, incur, assume or permit to exist
(upon the happening of a contingency or otherwise) any Lien on or with respect
to any property or asset (including without limitation, any document or
instrument in respect of goods or accounts receivable) of the Company or any
such Subsidiary, whether now owned or held or hereafter acquired, or upon any
income or profits therefrom, or to assign or otherwise convey any right to
receive income or profits, in each case, securing Debt of the Company or any
Subsidiary (unless it makes, or causes to be made, effective provision whereby
the Notes will be equally and ratably secured with any and all other obligations
thereby secured, such security to be pursuant to an agreement reasonably
satisfactory to the Required Holders and, in any such case, the Notes shall have
the benefit, to the fullest extent that, and with such priority as, the holders
of the Notes may be entitled under applicable law, of an equitable Lien on such
property), except:
(a) Liens existing on the date of this Agreement and securing
the Debt of the Company or any Subsidiary referred to in Schedule 5.15;
(b) any Lien created to secure all or any part of the
purchase price, or to secure Debt incurred or assumed to pay all or any
part of the purchase price or cost of construction, of property (or any
improvement thereon) other than coal properties acquired or constructed
by the Company or a Subsidiary after the date of the Closing, including
any Lien existing on property or assets of a Person immediately prior
to its being consolidated with or merged into the Company or a
Subsidiary or its becoming a Subsidiary or its properties being sold to
the Company or any Subsidiary, or any Lien existing on any property
acquired by the Company or any Subsidiary at the time such property is
so acquired (whether or not the Debt secured thereby shall have been
assumed), provided that
(i) any such Lien shall extend solely to the item or
items of such property (and/or improvement thereon) so
acquired or constructed and, if required by the terms of the
instrument originally creating such Lien, other property
(and/or improvement thereon) which is an improvement to or is
acquired for specific use in connection with such acquired or
constructed property (and/or improvement thereon) or which is
real property being improved by such acquired or constructed
property (or improvement thereon),
(ii) the principal amount of the Debt secured by any
such Lien shall at no time exceed an amount equal to 100% of
the fair market value (as determined in good faith by the
Company or such Subsidiary incurring such Lien) of such
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NRP (Operating) LLC Note Purchase Agreement
property (and/or improvement thereon) at the time of such
acquisition or construction, and
(iii) any such Lien shall be created
contemporaneously with, or within 180 days after, the
acquisition or construction of such property;
(c) any Lien renewing, extending or refunding any Lien
permitted by paragraphs (a) and (b) of this Section 10.3, provided that
(i) the principal amount of Debt secured by such Lien immediately prior
to such extension, renewal or refunding is not increased or the
maturity thereof reduced, (ii) such Lien is not extended to any other
property, and (iii) immediately after such extension, renewal or
refunding no Default or Event of Default would exist;
(d) Liens on property or assets of the Company or any
Subsidiary securing Debt owing to the Company or to a Subsidiary; and
(e) other Liens not otherwise permitted by paragraphs (a)
through (d) of this Section 10.3 provided the Debt secured thereby is
permitted by Sections 10.4 and 10.6 hereto.
Section 10.4. Priority Debt. The Company will not, at any time, permit
Priority Debt to exceed 10% of Consolidated Net Tangible Assets.
Section 10.5. Fixed Charges Coverage Ratio. The Company will keep and
maintain as of the end of each fiscal quarter, the ratio of Consolidated EBITDDA
to Consolidated Fixed Charges for each period of four consecutive fiscal
quarters ending on the date of determination and taken as a single accounting
period, (provided however that for the respective fiscal quarters ending June
30, 2003 and September 30, 2003, such calculation shall be based on two and
three consecutive fiscal quarters, respectively and not four consecutive fiscal
quarters) at not less than 3.50 to 1.00.
Section 10.6. Limitations on Debt. (a) In addition to, and not in
limitation of, any other restrictions in respect of Debt of the Company or any
Subsidiary hereunder, the Company will not, and will not permit any Subsidiary
to, create, issue, assume, guarantee or otherwise incur or in any manner be or
become liable in respect of any Debt, except:
(i) Debt evidenced by the 2003 Notes and the Subsidiary
Guarantee in respect thereof;
(ii) Debt of the Company or any Subsidiary outstanding as of
the date of this Agreement and described on Schedule 5.15 hereto and
any renewal, extension or refunding thereof without increase in the
principal amount thereof; and
(iii) additional Debt (including any additional series of
Notes) of the Company or any Subsidiary; provided that at the time of
creation, issuance, assumption, guarantee or incurrence thereof (the
"Incurrence Date") and after giving effect thereto and to the
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NRP (Operating) LLC Note Purchase Agreement
application of the proceeds thereof, the ratio of Consolidated Debt (as
of the Incurrence Date) to Consolidated EBITDDA (determined as of the
end of the most recent fiscal quarter for the twelve months then ended
provided that in the case of any Incurrence Date prior to December 31,
2003, Consolidated EBITDDA shall be calculated only for those fiscal
quarters completed, beginning with the fiscal quarter ended March 31,
2003, and annualized) to exceed 4.00 to 1.00.
(b) Any Person which becomes a Subsidiary after the date hereof shall
for all purposes of this Section 10.6 be deemed to have created, assumed or
incurred at the time it becomes a Subsidiary all Debt of such Person existing
immediately after it becomes a Subsidiary.
Section 10.7. Sale of Assets, Etc. Except as permitted under Section
10.2, the Company will not, and will not permit any of its Subsidiaries to, make
any Asset Disposition unless:
(a) in the good faith opinion of the Company or Subsidiary
making the Asset Disposition, the Asset Disposition is in exchange for
consideration having a fair market value at least equal to that of the
property exchanged;
(b) immediately after giving effect to the Asset Disposition,
no Default or Event of Default would exist; and
(c) immediately after giving effect to such Asset Disposition,
the Company could incur at least $1.00 of additional Funded Debt
pursuant to Section 10.6(a)(iii); and
(d) the sum of (i) the Disposition Value of the property
subject to such Asset Disposition, plus (ii) the aggregate Disposition
Value for all other property that was the subject of an Asset
Disposition during the period of 365 days immediately preceding such
Asset Disposition would not exceed 15% of Consolidated Total Assets
determined as of the end of the most recently ended calendar month
preceding such Asset Disposition.
To the extent that the Net Proceeds Amount consisting of cash for any Transfer
to a Person other than the Company or Subsidiary is applied to a Debt Prepayment
Application or applied or committed to be applied to a Property Reinvestment
Application within one year after such Transfer (and if so committed, in fact
applied within twelve (12) months of such commitment), then such Transfer (or,
if less than all such Net Proceeds Amount is applied as contemplated
hereinabove, the pro rata percentage thereof which corresponds to the Net
Proceeds Amount so applied), only for the purpose of determining compliance with
subsection (d) of this Section 10.7 as of any date, shall be deemed not to be an
Asset Disposition.
Section 10.8. Restricted Payments. The Company will not, and will not
permit any Subsidiary to, declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any member interests or other equity of the Company or such
Subsidiary, or purchase, redeem or otherwise acquire for value any member
interests or other equity of the Company or such Subsidiary or any warrants,
rights or options to acquire any such interests, now or hereafter outstanding
(each of the foregoing being a
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NRP (Operating) LLC Note Purchase Agreement
"Restricted Payment"), unless, at the time and immediately after giving effect
thereto, no Default or Event of Default exists. For purposes of the preceding
sentence, "Restricted Payments" shall not include any dividends or distributions
by any Subsidiary to the Company, a Subsidiary Guarantor or a Wholly-Owned
Subsidiary and shall not include any such purchase, redemption or other
acquisition described hereinabove by a Subsidiary from the Company, a Subsidiary
Guarantor or a Wholly-Owned Subsidiary.
Section 10.9. Nature of Business. The Company will not and will not
permit any of its Subsidiaries to, engage in any business if, as a result, when
taken as a whole, the general nature of the businesses in which the Company and
the Subsidiaries are engaged would be substantially changed from a general
nature of the business in which the Company and the Subsidiaries are engaged in
on the date of this Agreement.
SECTION 11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or
Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any
Note for more than five Business Days after the same becomes due and
payable; or
(c) the Company defaults in the performance of or compliance
with any term contained in Section 7.1(d) or Sections 10.2 through 10.8
inclusive; or
(d) an Obligor defaults in the performance of or compliance
with any term contained herein or in any other Financing Agreement
(other than those referred to in paragraphs (a), (b) and (c) of this
Section 11) and such default is not remedied within 30 days after the
earlier of (i) a Responsible Officer obtaining actual knowledge of such
default and (ii) the Company receiving written notice of such default
from any holder of a Note (any such written notice to be identified as
a "notice of default" and to refer specifically to this paragraph (d)
of Section 11); or
(e) any representation or warranty made in writing by or on
behalf of an Obligor or by any officer of an Obligor in any Financing
Agreement or in any writing furnished in connection with the
transactions contemplated hereby or thereby proves to have been false
or incorrect in any material respect on the date as of which made; or
(f) (i) the Company or any Subsidiary is in default (as
principal or as guarantor or other surety) in the payment of any
principal of or premium or make-whole amount or interest on any Debt
that is outstanding in an aggregate principal amount of at least
$10,000,000 beyond any period of grace provided with respect thereto (a
"Monetary Default"), or (ii) the Company or any Subsidiary is in
default in the performance of or
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NRP (Operating) LLC Note Purchase Agreement
compliance with any term of any evidence of any Debt in an aggregate
outstanding principal amount of at least $10,000,000 or of any
mortgage, indenture or other agreement relating thereto or any other
condition exists, and as a consequence of such default or condition
such Debt has become, or has been declared, due and payable before its
stated maturity or before its regularly scheduled dates of payment, or
(iii) as a consequence of the occurrence or continuation of any event
or condition (other than the passage of time or the right of the holder
of Debt to convert such Debt into equity interests), (x) the Company or
any Subsidiary has become obligated to purchase or repay Debt before
its regular maturity or before its regularly scheduled dates of payment
in an aggregate outstanding principal amount of at least $10,000,000,
or (y) in the case of a Monetary Default, one or more Persons have the
right to require the Company or any Subsidiary so to purchase or repay
such Debt; or
(g) the Company or any Subsidiary (i) is generally not
paying, or admits in writing its inability to pay, its debts as they
become due, (ii) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to
take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an
assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any substantial
part of its property, (v) is adjudicated as insolvent or to be
liquidated, or (vi) takes corporate action for the purpose of any of
the foregoing; or
(h) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the Company
or any of its Subsidiaries, a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, or constituting an order for relief
or approving a petition for relief or reorganization or any other
petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of the Company or any of its
Subsidiaries, or any such petition shall be filed against the Company
or any of its Subsidiaries and such petition shall not be dismissed
within 60 days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of $10,000,000 are rendered against one or more
of the Company and its Subsidiaries and which judgments are not, within
60 days after entry thereof, bonded, discharged or stayed pending
appeal, or are not discharged within 60 days after the expiration of
such stay; or
(j) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is
sought or granted under section 412 of the Code, (ii) a notice of
intent to terminate any Plan shall have been or is likely to be filed
with the PBGC or the PBGC shall have instituted proceedings under ERISA
section 4042 to terminate or appoint a trustee to administer any Plan
or the PBGC shall have notified the
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NRP (Operating) LLC Note Purchase Agreement
Company or any ERISA Affiliate that a Plan is likely to become a
subject of any such proceedings, (iii) the aggregate "amount of
unfunded benefit liabilities" (within the meaning of section
4001(a)(18) of ERISA) under all Plans, determined in accordance with
Title IV of ERISA, shall exceed $10,000,000, (iv) the Company or any
ERISA Affiliate shall have incurred or is reasonably expected to incur
any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit plans,
(v) the Company or any ERISA Affiliate withdraws from any Multiemployer
Plan, or (vi) the Company or any Subsidiary establishes or amends any
employee welfare benefit plan that provides post-employment welfare
benefits in a manner that would increase the liability of the Company
or any Subsidiary thereunder; and any such event or events described in
clauses (i) through (vi) above, either individually or together with
any other such event or events, could reasonably be expected to have a
Material Adverse Effect; or
(k) any Financing Agreement shall cease to be in full force
and effect for any reason whatsoever (except for releases of the
Subsidiary Guarantee pursuant to and in accordance with the provisions
of Section 9.7), including, without limitation, a determination by any
Governmental Authority or court that such Financing Agreement is
invalid, void or unenforceable in any material respect or the Company
or any Subsidiary Guarantor shall contest or deny the validity or
enforceability of any of its obligations under any such Financing
Agreement.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
SECTION 12. REMEDIES ON DEFAULT, ETC.
Section 12.1. Acceleration. (a) If an Event of Default with respect to
the Company described in paragraph (g) or (h) of Section 11 (other than an Event
of Default described in clause (i) of paragraph (g) or described in clause (vi)
of paragraph (g) by virtue of the fact that such clause encompasses clause (i)
of paragraph (g)) has occurred, all the Notes then outstanding shall
automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, the
Required Holders may at any time at its or their option, by notice or notices to
the Company, declare all the Notes then outstanding to be immediately due and
payable.
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing, any holder or holders of Notes at the
time outstanding affected by such Event of Default may at any time, at its or
their option, by notice or notices to the Company, declare all the Notes held by
it or them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Notes will forthwith mature and
the entire unpaid principal amount of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) the Make-Whole Amount determined in respect of
such principal amount (to the full extent permitted by
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NRP (Operating) LLC Note Purchase Agreement
applicable law), shall all be immediately due and payable, in each and every
case without presentment, demand, protest or further notice, all of which are
hereby waived. The Company acknowledges, and the parties hereto agree, that each
holder of a Note has the right to maintain its investment in the Notes free from
repayment by the Company (except as herein specifically provided for), and that
the provision for payment of a Make-Whole Amount by the Company in the event
that the Notes are prepaid or are accelerated as a result of an Event of
Default, is intended to provide compensation for the deprivation of such right
under such circumstances.
Section 12.2. Other Remedies. If any Default or Event of Default has
occurred and is continuing, and irrespective of whether any Notes have become or
have been declared immediately due and payable under Section 12.1, the holder of
any Note at the time outstanding may proceed to protect and enforce the rights
of such holder by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement contained
herein or in any Note, or for an injunction against a violation of any of the
terms hereof or thereof, or in aid of the exercise of any power granted hereby
or thereby or by law or otherwise.
Section 12.3. Rescission. At any time after any Notes have been declared
due and payable pursuant to clause (b) or (c) of Section 12.1, the Required
Holders, by written notice to the Company, may rescind and annul any such
declaration and its consequences if (a) the Company has paid all overdue
interest on the Notes, all principal of and Make-Whole Amount, if any, on any
Notes that are due and payable and are unpaid other than by reason of such
declaration, and all interest on such overdue principal and Make-Whole Amount,
if any, and (to the extent permitted by applicable law) any overdue interest in
respect of the Notes, at the Default Rate, (b) all Events of Default and
Defaults, other than non-payment of amounts that have become due solely by
reason of such declaration, have been cured or have been waived pursuant to
Section 17, and (c) no judgment or decree has been entered for the payment of
any monies due pursuant hereto or to the Notes. No rescission and annulment
under this Section 12.3 will extend to or affect any subsequent Event of Default
or Default or impair any right consequent thereon.
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc. No
course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any Note upon any holder thereof shall
be exclusive of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Company under Section 15, the Company
will pay to the holder of each Note on demand such further amount as shall be
sufficient to cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including, without limitation,
reasonable attorneys' fees, expenses and disbursements.
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
Section 13.1. Registration of Notes. The Company shall keep at its
principal executive office a register for the registration and registration of
transfers of Notes of each series. The name and address of each holder of one or
more Notes of each series, each transfer thereof and
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NRP (Operating) LLC Note Purchase Agreement
the name and address of each transferee of one or more Notes shall be registered
in such register. Prior to due presentment for registration of transfer, the
Person in whose name any Note shall be registered shall be deemed and treated as
the owner and holder thereof for all purposes hereof, and the Company shall not
be affected by any notice or knowledge to the contrary. The Company shall give
to any holder of a Note that is an Institutional Investor promptly upon request
therefor, a complete and correct copy of the names and addresses of all
registered holders of Notes.
Section 13.2. Transfer and Exchange of Notes. Upon surrender of any Note
at the principal executive office of the Company for registration of transfer or
exchange (and in the case of a surrender for registration of transfer, duly
endorsed or accompanied by a written instrument of transfer duly executed by the
registered holder of such Note or his attorney duly authorized in writing and
accompanied by the address for notices of each transferee of such Note or part
thereof), the Company shall execute and deliver, at the Company's expense
(except as provided below), one or more new Notes (as requested by the holder
thereof) of the same series in exchange therefor, in an aggregate principal
amount equal to the unpaid principal amount of the surrendered Note. Each such
new Note shall be payable to such Person as such holder may request and shall be
substantially in the form of the related exhibit. Each such new Note shall be
dated and bear interest from the date to which interest shall have been paid on
the surrendered Note or dated the date of the surrendered Note if no interest
shall have been paid thereon. The Company may require payment of a sum
sufficient to cover any stamp tax or governmental charge imposed in respect of
any such transfer of Notes. Notes shall not be transferred in denominations of
less than $1,000,000, provided that if necessary to enable the registration of
transfer by a holder of its entire holding of Notes, one Note may be in a
denomination of less than $1,000,000. Any transferee, by its acceptance of a
Note registered in its name (or the name of its nominee), shall be deemed to
have made the representation set forth in Section 6.4.
Section 13.3. Replacement of Notes. Upon receipt by the Company of
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be, in the case of
an Institutional Investor, notice from such Institutional Investor of such
ownership and such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note
is, or is a nominee for, an original Purchaser or another holder of a
Note with a minimum net worth of at least $25,000,000 such Person's own
unsecured agreement of indemnity shall be deemed to be satisfactory),
or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a new
Note of the same series, dated and bearing interest from the date to which
interest shall have been paid on such lost, stolen, destroyed or mutilated Note
or dated the date of such lost, stolen, destroyed or mutilated Note if no
interest shall have been paid thereon.
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NRP (Operating) LLC Note Purchase Agreement
SECTION 14. PAYMENTS ON NOTES.
Section 14.1. Place of Payment. Subject to Section 14.2, payments of
principal, Make-Whole Amount, if any, and interest becoming due and payable on
the Notes shall be made in New York, New York at the principal office of
Citibank, N.A. in such jurisdiction. The Company may at any time, by notice to
each holder of a Note, change the place of payment of the Notes so long as such
place of payment shall be either the principal office of the Company in such
jurisdiction or the principal office of a bank or trust company in such
jurisdiction.
Section 14.2. Home Office Payment. So long as you or your nominee shall
be the holder of any Note, and notwithstanding anything contained in Section
14.1 or in such Note to the contrary, the Company will pay all sums becoming due
on such Note for principal, Make-Whole Amount, if any, and interest by the
method and at the address specified for such purpose below your name in Schedule
A, or by such other method or at such other address as you shall have from time
to time specified to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any notation thereon,
except that upon written request of the Company made concurrently with or
reasonably promptly after payment or prepayment in full of any Note, you shall
surrender such Note for cancellation, reasonably promptly after any such
request, to the Company at its principal executive office or at the place of
payment most recently designated by the Company pursuant to Section 14.1. Prior
to any sale or other disposition of any Note held by you or your nominee you
will, at your election, either endorse thereon the amount of principal paid
thereon and the last date to which interest has been paid thereon or surrender
such Note to the Company in exchange for a new Note or Notes pursuant to Section
13.2. The Company will afford the benefits of this Section 14.2 to any
Institutional Investor that is the direct or indirect transferee of any Note
purchased by you under this Agreement and that has made the same agreement
relating to such Note as you have made in this Section 14.2.
SECTION 15. EXPENSES, ETC.
Section 15.1. Transaction Expenses. Whether or not the transactions
contemplated hereby are consummated, the Company will pay all costs and expenses
(including reasonable attorneys' fees of a special counsel and, if reasonably
required, local or other counsel) incurred by you and each other Purchaser or
holder of a Note in connection with such transactions and in connection with any
amendments, waivers or consents under or in respect of any Financing Agreement
(whether or not such amendment, waiver or consent becomes effective), including,
without limitation: (a) the costs and expenses incurred in enforcing or
defending (or determining whether or how to enforce or defend) any rights under
any Financing Agreement or in responding to any subpoena or other legal process
or informal investigative demand issued in connection with any Financing
Agreement, or by reason of being a holder of any Note, (b) the costs and
expenses, including financial advisors' fees, incurred in connection with the
insolvency or bankruptcy of the Company or any Subsidiary or in connection with
any work-out or restructuring of the transactions contemplated hereby and by any
Financing Agreement and (c) the cost and expenses incurred in connection with
the initial filing of this Agreement and all related documents and financial
information and all subsequent annual and interim filings of documents and
financial information related to this Agreement, with the Securities Valuation
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NRP (Operating) LLC Note Purchase Agreement
Office of the National Association of Insurance Commissioners or any successor
organization succeeding to the authority thereof. The Company will pay, and will
save you and each other holder of a Note harmless from, all claims in respect of
any fees, costs or expenses, if any, of brokers and finders (other than those
retained by you).
Section 15.2. Survival. The obligations of the Company under this
Section 15 will survive the payment or transfer of any Note, the enforcement,
amendment or waiver of any provision of any Financing Agreement, and the
termination of any Financing Agreement.
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of the Financing Agreements, the purchase or transfer by
you of any Note or portion thereof or interest therein and the payment of any
Note, and may be relied upon by any subsequent holder of a Note, regardless of
any investigation made at any time by or on behalf of you or any other holder of
a Note. All statements contained in any certificate or other instrument
delivered by or on behalf of any Obligor pursuant to any Financing Agreement
shall be deemed representations and warranties of such Obligor under such
Financing Agreement. Subject to the preceding sentence, this Agreement and the
Notes embody the entire agreement and understanding between you and the Company
and supersede all prior agreements and understandings relating to the subject
matter hereof.
SECTION 17. AMENDMENT AND WAIVER.
Section 17.1. (a) Requirements. This Agreement and the Notes may be
amended, and the observance of any term hereof or of the Notes may be waived
(either retroactively or prospectively), with (and only with) the written
consent of the Company and the Required Holders, except that (a) no amendment or
waiver of any of the provisions of Sections 1, 2, 3, 4, 5, 6 or 21 hereof, or
any defined term (as it is used therein), will be effective as to you unless
consented to by you in writing, and (b) no such amendment or waiver may, without
the written consent of the holder of each Note at the time outstanding affected
thereby, (i) subject to the provisions of Section 12 relating to acceleration or
rescission, change the amount or time of any prepayment or payment of principal
of, or reduce the rate or change the time of payment or method of computation of
interest or of the Make-Whole Amount on, the Notes, (ii) change the percentage
of the principal amount of the Notes the holders of which are required to
consent to any such amendment or waiver, or (iii) amend any of Sections 8,
11(a), 11(b), 12, 17, 20 or the form of Supplement.
(b) Supplements. Notwithstanding anything to the contrary contained
herein, the Company may enter into any supplement providing for the issuance of
one or more series of Additional Notes consistent with Sections 2.2 and 4.13
hereof without obtaining the consent of any holder of any other series of Notes.
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NRP (Operating) LLC Note Purchase Agreement
Section 17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
of this Section 17 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or cause
to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, or grant any security, to any holder of Notes as
consideration for or as an inducement to the entering into by any holder of
Notes or any waiver or amendment of any of the terms and provisions hereof
unless such remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each holder of Notes then outstanding
even if such holder did not consent to such waiver or amendment.
Section 17.3. Binding Effect, Etc. Any amendment or waiver consented to
as provided in this Section 17 applies equally to all holders of Notes and is
binding upon them and upon each future holder of any Note and upon the Company
without regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or waived
or impair any right consequent thereon. No course of dealing between the Company
and the holder of any Note nor any delay in exercising any rights hereunder or
under any Note shall operate as a waiver of any rights of any holder of such
Note. As used herein, the term "this Agreement" and references thereto shall
mean this Agreement as it may from time to time be amended or supplemented.
Section 17.4. Notes Held by Company, Etc. Solely for the purpose of
determining whether the holders of the requisite percentage of the aggregate
principal amount of Notes then outstanding approved or consented to any
amendment, waiver or consent to be given under this Agreement or the Notes, or
have directed the taking of any action provided herein or in the Notes to be
taken upon the direction of the holders of a specified percentage of the
aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by the Company or any of its Affiliates shall be deemed not to
be outstanding.
Section 17.5. Calculation of Outstanding Notes. For purposes of any
determination under this Section 17 prior to the Second Closing, the Notes
proposed to be issued and sold on the Second Closing shall be deemed to be
outstanding and held by the proposed Purchaser designated in Schedule A.
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NRP (Operating) LLC Note Purchase Agreement
SECTION 18. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address specified
for such communications in Schedule A, or at such other address as you or
it shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such
address as such other holder shall have specified to the Company in
writing, or
(iii) if to an Obligor, to the Company at its address set forth at the
beginning hereof to the attention of Dwight Dunlap, Chief Financial
Officer, or at such other address as the Company shall have specified to
the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
SECTION 19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.
SECTION 20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to you by or on behalf of the Company or any Subsidiary in
connection with the transactions contemplated by or otherwise pursuant to any
Financing Agreement that is proprietary in nature and that was clearly marked or
labeled or otherwise adequately identified when received by you as being
confidential information of the Company or such Subsidiary, provided that such
term does not include information that (a) was publicly known or otherwise
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NRP (Operating) LLC Note Purchase Agreement
known to you prior to the time of such disclosure, (b) subsequently becomes
publicly known through no act or omission by you or any person acting on your
behalf, (c) otherwise becomes known to you other than through disclosure by the
Company or any Subsidiary or (d) constitutes financial statements delivered to
you under Section 7.1 that are otherwise publicly available. You will maintain
the confidentiality of such Confidential Information in accordance with
procedures adopted by you in good faith to protect confidential information of
third parties delivered to you, provided that you may deliver or disclose
Confidential Information to (i) your directors, officers, employees, agents,
attorneys and affiliates (to the extent such disclosure reasonably relates to
the administration of the investment represented by your Notes), (ii) your
financial advisors and other professional advisors who agree to hold
confidential the Confidential Information substantially in accordance with the
terms of this Section 20, (iii) any other holder of any Note, (iv) any
Institutional Investor to which you sell or offer to sell such Note or any part
thereof or any participation therein (if such Person has agreed in writing prior
to its receipt of such Confidential Information to be bound by the provisions of
this Section 20), (v) any Person from which you offer to purchase any security
of the Company (if such Person has agreed in writing prior to its receipt of
such Confidential Information to be bound by the provisions of this Section 20),
(vi) any federal or state regulatory authority having jurisdiction over you,
(vii) the National Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency that requires access to
information about your investment portfolio, (viii) any other Person to which
such delivery or disclosure may be necessary or appropriate (w) to effect
compliance with any law, rule, regulation or order applicable to you, (x) in
response to any subpoena or other legal process, (y) in connection with any
litigation to which you are a party or (z) if an Event of Default has occurred
and is continuing, to the extent you may reasonably determine such delivery and
disclosure to be necessary or appropriate in the enforcement or for the
protection of the rights and remedies under your Notes and this Agreement;
provided that prior to disclosing any such Confidential Information pursuant to
this clause (viii), you shall use reasonable efforts to give prior notice to the
Company, provided that you are not subject to any applicable legal, regulatory
or contractual restriction in respect of giving the aforementioned notice and
(ix) to all Persons, without limitation, to the extent any such Confidential
Information pertains to the tax treatment and tax structure of the transaction
contemplated by this Agreement and all materials of any kind (including opinions
or other tax analyses) that are provided to you relating to such tax treatment
and tax structure (it being understood that, for certainty of intent, this
clause (ix) is to be interpreted consistently with the requirements of Treas.
Reg. Section 1.6011-4(b)(3)). Each holder of a Note, by its acceptance of a
Note, will be deemed to have agreed to be bound by and to be entitled to the
benefits of this Section 20 as though it were a party to this Agreement. On
reasonable request by the Company in connection with the delivery to any holder
of a Note of information required to be delivered to such holder under this
Agreement or requested by such holder (other than a holder that is a party to
this Agreement or its nominee), such holder will enter into an agreement with
the Company embodying the provisions of this Section 20.
SECTION 21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as
the purchaser of the Notes that you have agreed to purchase hereunder, by
written notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to
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NRP (Operating) LLC Note Purchase Agreement
be bound by this Agreement and shall contain a confirmation by such Affiliate of
the accuracy with respect to it of the representations set forth in Section 6.
Upon receipt of such notice, wherever the word "you" is used in this Agreement
(other than in this Section 21), such word shall be deemed to refer to such
Affiliate in lieu of you. In the event that such Affiliate is so substituted as
a purchaser hereunder and such Affiliate thereafter transfers to you all of the
Notes then held by such Affiliate, upon receipt by the Company of notice of such
transfer, wherever the word "you" is used in this Agreement (other than in this
Section 21), such word shall no longer be deemed to refer to such Affiliate, but
shall refer to you, and you shall have all the rights of an original holder of
the Notes under this Agreement.
SECTION 22. MISCELLANEOUS.
Section 22.1. Successors and Assigns. All covenants and other agreements
contained in this Agreement by or on behalf of any of the parties hereto bind
and inure to the benefit of their respective successors and assigns (including,
without limitation, any subsequent holder of a Note) whether so expressed or
not.
Section 22.2. Payments Due on Non-Business Days. Anything in this
Agreement or the Notes to the contrary notwithstanding, any payment of principal
of or Make-Whole Amount or interest on any Note that is due on a date other than
a Business Day shall be made on the next succeeding Business Day without
including the additional days elapsed in the computation of the interest payable
on such next succeeding Business Day.
Section 22.3. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 22.4. Construction. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
Section 22.5. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original but all of which together
shall constitute one instrument. Each counterpart may consist of a number of
copies hereof, each signed by less than all, but together signed by all, of the
parties hereto.
Section 22.6. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the law of the State of New York, excluding choice-of-law principles of the law
of such State that would require the application of the laws of a jurisdiction
other than such State.
-39-
NRP (Operating) LLC Note Purchase Agreement
* * * * *
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Company, whereupon the foregoing shall become a binding agreement between you
and the Company.
Very truly yours,
NRP (OPERATING) LLC, a Delaware limited
liability company
By: /s/ Dwight L. Dunlap
-------------------------------------
Name: Dwight L. Dunlap
Title: Chief Financial Officer and
Treasurer
The foregoing is hereby agreed
to as of the date thereof.
[PURCHASER SIGNATURE BLOCKS]
-40-
INFORMATION RELATING TO PURCHASERS
NAME AND ADDRESS OF PURCHASER
TEACHERS INSURANCE AND ANNUITY PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
ASSOCIATION OF AMERICA
730 Third Avenue Series A Series B Series C Total
New York, New York 10017-3206 6/19/03 $15,000,000 $ 3,500,000 $ 4,500,000 $23,000,000
Attn: Securities Division, 9/19/03 $ 0 $ 6,500,000 $ 3,000,000 $ 9,500,000
Private Placements
Telephone: (212) 916-5724
Facsimile: (22) 916-6582
Payments
All payments on or in respect of the Notes shall be made in immediately
available funds at the opening of business on the due date by electronic funds
transfer through the Automated Clearing House System to:
Chase Manhattan Bank
ABA #021-000-021
Account of: Teachers Insurance and Annuity Association of America
Account Number 900-2-000200
For further credit to the TIAA Account Number: G07040
Reference: PPN#/NRP (Operating) LLC/5.55% Senior Notes, Series A,
due 2023 or 4.91% Senior Notes, Series B or 5.55% Senior Notes,
Series C, due 2013/P&I Breakdown
Notices
Contemporaneous with the above electronic funds transfer, advice setting forth
(1) the full name, private placement number and interest rate of the Notes; (2)
allocation of payment between principal, interest, premium and any special
payment; and (3) name and address of Bank (or Trustee) from which wire transfer
was sent, shall be delivered, mailed or faxed to:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, New York 10017-3206
Attention: Securities Accounting Division
Phone Number: (212) 916-6004
Fax Number: (212) 916-6955
SCHEDULE A
(to Note Purchase Agreement)
NRP (Operating) LLC Note Purchase Agreement
All other notices and communications shall be delivered or mailed to:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, New York 10017-3206
Attention: Estelle Simsolo, Securities Division, Private Placements
Phone Number: (212) 916-5725
Fax Number: (212) 916-6582
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 13-1624203
A-2
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
CONNECTICUT GENERAL LIFE INSURANCE PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
INSURANCE COMPANY
c/o CIGNA Retirement & Investment Series A Series B Series C Total
Services 6/19/03 $0 $1,714,285.71 $0 $13,339,285.72
280 Trumbull Street $1,875,000.00
Hartford, Connecticut 06103 $1,714,285.71
Attention: Private and Alternative $1,607,142.86
Investments, H16B $1,607,142.86
Fax: 860-534-7203 $1,607,142.86
$1,607,142.86
$1,607,142.86
9/19/03 $0 $1,485,714.29 $0 $11,560,714.28
$1,625,000.00
$1,485,714.29
$1,392,857.14
$1,392,857.14
$1,392,857.14
$1,392,857.14
$1,392,857.14
Payments
All payments on or in respect of the Notes to be by Federal Funds Wire Transfer
to:
J. P. Morgan Chase Bank
BNF=CIGNA Private Placements/AC=9009001802
ABA #021000021
OBI=NRP (Operating) LLC, 4.91% Series B Senior Notes, due 2018; PPN
62963# AB 7 (as among principal, premium and interest of the payment
being made); contact name and phone.
Address for Notices Related to Payments:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing, H05P
280 Trumbull Street
Hartford, Connecticut 06103
CIG & Co.
c/o CIGNA Retirement & Investment Services
Attention: Private and Alternative Investments, H16B
280 Trumbull Street
Hartford, Connecticut 06103
Fax: 860-534-7203
A-3
NRP (Operating) LLC Note Purchase Agreement
with a copy to:
J. P. Morgan Chase Bank
Private Placement Servicing
P.O. Box 35308
Newark, NJ 07101
Attention: CIGNA Private Placements Funds Clearance #8008
Fax: (469) 477-1904
Address for All Other Notices:
CIG & Co.
c/o CIGNA Retirement & Investment Services
Attention: Private and Alternative Investments, H16B
280 Trumbull Street
Hartford, Connecticut 06103
Fax: 860-534-7203
Name of Nominee in which Notes are to be issued: CIG & Co.
Taxpayer I.D. Number for CIG & Co.: 13-3574027
A-4
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
LIFE INSURANCE COMPANY OF NORTH PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
AMERICA
c/o CIGNA Investments, Inc. Series A Series B Series C Total
280 Trumbull Street 6/19/03 $0 $1,660,714.28 $0 $1,660,714.28
Hartford, Connecticut 06103 9/19/03 $0 $1,439,285.72 $0 $1,439,285.72
Attention: Private Securities
- H16B Operations Group
Fax: 860-534-7203
Payments
All payments on or in respect of the Notes to be by Federal Funds Wire Transfer
to:
Chase NYC/CTR/
BNF=CIGNA Private Placements/AC=9009001802
ABA #021000021
OBI=NRP (Operating) LLC, 4.91% Series B Senior Notes, due 2018; PPN
62963# AB 7 (as among principal, premium and interest of the payment
being made); contact name and phone.
Address for Notices Related to Payments:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing - H16B
280 Trumbull Street
Hartford, Connecticut 06103
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities - H16B
Operations Group
280 Trumbull Street
Hartford, Connecticut 06103
Fax: 860-534-7203
with a copy to:
A-5
NRP (Operating) LLC Note Purchase Agreement
J. P. Morgan Chase Bank
Private Placement Servicing
P.O. Box 35308
Newark, NJ 07101
Attention: CIGNA Private Placements Funds Clearance #8008
Fax: 212-552-3107/1005
Address for All Other Notices:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - H16B
280 Trumbull Street
Hartford, Connecticut 06103
Fax: 860-534-7203
Name of Nominee in which Notes are to be issued: CIG & Co.
Taxpayer I.D. Number for CIG & Co.: 13-3574027
A-6
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
THE NORTHWESTERN MUTUAL LIFE INSURANCE PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
COMPANY
720 East Wisconsin Avenue Series A Series B Series C Total
Milwaukee, Wisconsin 53202 6/19/03 $17,000,000 $0 $ 6,000,000 $23,000,000
Attention: Securities Department 9/19/03 $ 0 $0 $ 3,000,000 $ 3,000,000
Fax Number: (414) 665-7124
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "NRP
(Operating) LLC, 5.55% Senior Notes, Series A, due 2023, PPN 62963# AA 9, or
4.91% Senior Notes, Series B, due 2018, PPN 62963# AB 7, or 5.55% Senior Notes,
Series C, due 2013, PPN 62963# AC 5, principal, premium or interest") to:
State Street Corporation
14 Wall Street
New York, New York 10005
ABA #021-001-033
for credit to: The Northwestern Mutual Life Insurance Company
Account Number 00-000-027
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments and written confirmation of each such payment
to be addressed, Attention: Investment Operations, Fax Number: (414) 665-5714.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 39-0509570
A-7
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
MASSACHUSETTS MUTUAL LIFE INSURANCE PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
COMPANY
c/o David L. Babson & Company Inc. Series A Series B Series C Total
1500 Main Street, Suite 2800 6/19/03 $2,760,000 $1,860,000 $1,233,333 $5,853,333
Springfield, Massachusetts 01115 9/19/03 $1,840,000 $1,240,000 $ 616,667 $3,696,667
Attention: Securities Investment
Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "NRP
(Operating) LLC, 5.55% Senior Notes, Series A, due 2023, PPN 62963# AA 9, or
4.91% Senior Notes, Series B, due 2018, PPN 62963# AB 7, or 5.55% Senior Notes,
Series C, due 2013, PPN 62963# AC 5, principal, premium or interest") to:
Citibank, N.A
111 Wall Street
New York, New York 10043
ABA #021000089
For MassMutual Long-Term Pool Account Number 30510669
Re: Description of security, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of David L. Babson & Company Inc. at (413) 226-1889 or (413)
226-1803.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Suite 800, Attention:
Securities Custody and Collection Department.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 04-1590850
A-8
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
MASSACHUSETTS MUTUAL LIFE INSURANCE PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
COMPANY
c/o David L. Babson & Company Inc. Series A Series B Series C Total
1500 Main Street, Suite 2800 6/19/03 $240,000 $180,000 $0 $420,000
Springfield, Massachusetts 01115 9/19/03 $160,000 $120,000 $0 $280,000
Attention: Securities Investment
Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "NRP
(Operating) LLC, 5.55% Senior Notes, Series A, due 2023, PPN 62963# AA 9, or
4.91% Senior Notes, Series B, due 2018, PPN 62963# AB 7, principal, premium or
interest") to:
Citibank, N.A
111 Wall Street
New York, New York 10043
ABA #021000089
For MassMutual IFM Non-Traditional Account Number 30510589
Re: Description of security, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of David L. Babson & Company Inc. at (413) 226-1839 or (413)
226-1803.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Suite 800, Attention:
Securities Custody and Collection Department.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 04-1590850
A-9
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
C.M. LIFE INSURANCE COMPANY PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
c/o Massachusetts Mutual Life Insurance Company Series A Series B Series C Total
c/o David L. Babson & Company Inc. 6/19/03 $1,080,000 $930,000 $500,000 $2,510,000
1500 Main Street, Suite 2800 9/19/03 $720,000 $620,000 $250,000 $1,590,000
Springfield, Massachusetts 01115
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "NRP
(Operating) LLC, 5.55% Senior Notes, Series A, due 2023, PPN 62963# AA 9, or
4.91% Senior Notes, Series B, due 2018, PPN 62963# AB 7, or 5.55% Senior Notes,
Series C, due 2013, PPN 62963# AC 5, principal, premium or interest") to:
Citibank, N.A.
111 Wall Street
New York, New York 10043
ABA #021000089
For CM Life Segment 43 - Universal Life
Account Number 30510546
Re: Description of security, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of David L. Babson & Company Inc. at (413) 226-1839 or (413)
226-1803.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Suite 800, Attention:
Securities Custody and Collection Department.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 04-1590850
A-10
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
c/o David L. Babson & Company Inc. Series A Series B Series C Total
1500 Main Street, Suite 2800 6/19/03 $1,980,000 $960,000 $900,000 $3,840,000
Springfield, Massachusetts 01115 9/19/03 $1,320,000 $640,000 $450,000 $2,410,000
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "NRP
(Operating) LLC, 5.55% Senior Notes, Series A, due 2023, PPN 62963# AA 9, or
4.91% Senior Notes, Series B, due 2018, PPN 62963# AB 7, or 5.55% Senior Notes,
Series C, due 2013, PPN 62963# AC 5, principal, premium or interest") to:
Citibank, N.A
111 Wall Street
New York, New York 10043
ABA #021000089
For MassMutual Pension Management Account Number 30510538
Re: Description of security, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of David L. Babson & Company Inc. at (413) 226-1803 or (413)
226-1839.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Suite 800, Attention:
Securities Custody and Collection Department.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 04-1590850
A-11
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
c/o David L. Babson & Company Inc. Series A Series B Series C Total
1500 Main Street, Suite 2800 6/19/03 $840,000 $570,000 $366,667 $1,776,667
Springfield, Massachusetts 01115 9/19/03 $560,000 $380,000 $183,333 $1,123,333
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "NRP
(Operating) LLC, 5.55% Senior Notes, Series A, due 2023, PPN 62963# AA 9, or
4.91% Senior Notes, Series B, due 2018, PPN 62963# AB 7, or 5.55% Senior Notes,
Series C, due 2013, PPN 62963# AC 5, principal, premium or interest") to:
Citibank, N.A
111 Wall Street
New York, New York 10043
ABA #021000089
For MassMutual Spot Priced Contract Account Number 30510597
Re: Description of security, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of David L. Babson & Company Inc. at (413) 226-1807 or (413)
226-1839.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Suite 800, Attention:
Securities Custody and Collection Department.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 04-1590850
A-12
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
MASSMUTUAL ASIA LIMITED PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
c/o David L. Babson & Company Inc. Series A Series B Series C Total
1500 Main Street, Suite 2800 6/19/03 $600,000 $0 $0 $600,000
Springfield, Massachusetts 01115 9/19/03 $400,000 $0 $0 $400,000
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "NRP
(Operating) LLC, 5.55% Senior Notes, Series A, due 2023, PPN 62963# AA 9, or
4.91% Senior Notes, Series B, due 2018, PPN 62963# AB 7, or 5.55% Senior Notes,
Series C, due 2013, PPN 62963# AC 5, principal, premium or interest") to:
Gerlach & Co.
c/o Citibank, N.A
111 Wall Street
New York, New York 10043
ABA #021000089
Concentration Account 36112805
Attn: Judy Rock
Re: MassMutual Asia
Name of Security/CUSIP Number
With telephone advice of payment to the Securities Custody and Collection
Department of David L. Babson & Company Inc. at (413) 226-1807 or (413)
226-1839.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Suite 800, Attention:
Securities Custody and Collection Department.
Name of Nominee in which Notes are to be issued: Gerlach & Co.
A-13
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
KEYPORT LIFE INSURANCE COMPANY PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
c/o Sun Life Assurance Company of Canada Series A Series B Series C Total
One Sun Life Executive Park 6/19/03 $7,000,000 $0 $2,500,000 $9,500,000
Wellesley Hills, Massachusetts 02481 9/19/03 $5,000,000 $0 $0 $5,000,000
Attention: Investment Division/Private Placements, SC
#1303
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "NRP
(Operating) LLC, 5.55% Senior Notes, Series A, due 2023, PPN 62963# AA 9, or
5.55% Senior Notes, Series C, due 2013, PPN 62963# AC 5, principal, premium or
interest") to:
Boston Safe Deposit and Trust
ABA Number: 011-001-234
Reference: DDA 108111
Cost Center 4210
For: Sun Capital Keyport Life
Account Number: KEYF00090002
Attention: Heather Fisher
Notices
All notices of routine payment on or in respect of the Notes and written
confirmation of each such payment and any audit confirmation to:
Sun Life Assurance Company of Canada
One Sun Life Executive Park
Wellesley Hills, Massachusetts 02481
Attention: Manager, Securities Operations SC #1395
All other notices and communications, including notices of non-routine payments,
to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 05-0302931
A-14
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
SUN LIFE ASSURANCE COMPANY OF CANADA PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
One Sun Life Executive Park Series A Series B Series C Total
Wellesley Hills, Massachusetts 02481 6/19/03 $0 $2,750,000 $0 $5,500.000
Attention: Investment Division/Private Placements, SC $0 $2,750,000 $0
#1303 9/19/03 $0 $1,500,000 $0 $3,000,000
$0 $1,500,000 $0
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds to:
Citibank, N.A.
Attention: Gay Quitch
ABA #021-000-089
Account No.: 36112805
For Further Credit: Account No.: 199541
Ref: NRP (Operating) LLC, 4.91% Senior Notes, Series B, due 2018,
PPN 62963# AB 7, identify principal or interest
Notices
All notices of routine payment, on or in respect of the Notes and written
confirmation of each such payment and any audit confirmation to:
Sun Life Assurance Company of Canada
One Sun Life Park
Wellesley Hills, Massachusetts 02481
Attention: Manager, Securities Accounting SC #1395
All other notices and communications, including notices of non-routine payments,
to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 38-1082080
A-15
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
NEW YORK LIFE INSURANCE COMPANY PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
c/o New York Life Investment Management LLC Series A Series B Series C Total
51 Madison Avenue 6/19/03 $0 $8,500,000 $3,000,000 $11,500,000
New York, New York 10010-1603 9/19/03 $0 $1,000,000 $1,000,000 $2,000,000
Attention: Securities Investment Group, Private
Finance, 2nd Floor
Fax Number: (212) 447-4122
Payments
All payments on or in respect of the Notes to be by wire or intrabank transfer
of immediately available funds to:
Chase Manhattan Bank
New York, New York 10019
ABA #021-000-021
Credit: New York Life Insurance Company
General Account Number 008-9-00687
With sufficient information (including issuer, PPN number, interest
rate, maturity and whether payment is of principal, premium, or
interest) to identify the source and application of such funds.
Notices
All notices with respect to payments and written confirmation of each such
payment, to be addressed:
New York Life Insurance Company
c/o New York Investment Management LLC
51 Madison Avenue
New York, New York 10010-1603
Attention: Financial Management and Operations Group
Securities Operations, 2nd Floor
Fax Number: (212) 447-4160
All other notices and communications to be addressed as first provided above,
with a copy of any notices regarding defaults or Events of Default under the
operative documents to: Office of the General Counsel, Investment Section, Room
1107, Fax Number (212) 576-8340
A-16
NRP (Operating) LLC Note Purchase Agreement
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 13-5582869
A-17
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
c/o New York Life Investment Management LLC Series A Series B Series C Total
51 Madison Avenue 6/19/03 $0 $4,500,000 $1,500,000 $6,000,000
New York, New York 10010-1603 9/19/03 $0 $500,000 $500,000 $1,000,000
Attention: Securities Investment Group, Private
Finance, 2nd Floor
Fax Number: (212) 447-4122
Payments
All payments on or in respect of the Notes to be by wire or intrabank transfer
of immediately available funds to:
Chase Manhattan Bank
New York, New York 10019
ABA #021-000-021
Credit: New York Life Insurance and Annuity Corporation
General Account Number 323-8-47382
With sufficient information (including issuer, PPN number, interest
rate, maturity and whether payment is of principal, premium, or
interest) to identify the source and application of such funds.
Notices
All notices with respect to payments and written confirmation of each such
payment, to be addressed:
New York Life Insurance and Annuity Corporation
c/o New York Investment Management LLC
51 Madison Avenue
New York, New York 10010-1603
Attention: Financial Management and Operations Group
Securities Operations, 2nd Floor
Fax Number: (212) 447-4160
All other notices and communications to be addressed as first provided above,
with a copy of any notices regarding defaults or Events of Default under the
operative documents to: Office of the General Counsel, Investment Section, Room
1107, Fax Number (212) 576-8340
A-18
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 13-3044743
A-19
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
JEFFERSON-PILOT LIFE INSURANCE COMPANY PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
Post Office Box 20407 Series A Series B Series C Total
Greensboro, North Carolina 27420 6/19/03 $0 $8,500,000 $0 $8,500,000
Attention: Securities Administration 9/19/03 $0 $3,000,000 $0 $3,000,000
Telefacsimile: (336) 691-3025
Overnight Mail Address:
100 North Greene Street
Greensboro, North Carolina 27401
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "NRP
(Operating) LLC, 4.91% Senior Notes, Series B, due 2018, PPN 62963# AB 7,
principal, premium or interest") to:
Jefferson-Pilot Life Insurance Company
c/o The Bank of New York
ABA #021000018 BNF: IOC566
Custody Account 186100
Attention: P&I Department
Notices
All notices and communications, including notices with respect to payments on or
in respect of the Notes and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 56-0359860
A-20
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
FARM BUREAU LIFE INSURANCE COMPANY PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
5400 University Avenue Series A Series B Series C Total
West Des Moines, Iowa 50266-5997 6/19/03 $0 $0 $3,000,000 $3,000,000
Attention: Securities Department 9/19/03 $0 $0 $1,000,000 $1,000,000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "NRP
(Operating) LLC, 5.55% Senior Notes, Series C, due 2013, PPN 62963# AC 5,
principal, premium or interest") to:
Bankers Trust Company
ABA #021-001-033
Private Placement Processing #99-911-145
for credit to: #098642
Farm Bureau Life Insurance Company, Portfolio 040A
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: Auer & Company
Taxpayer I.D. Number: 42-0623913
A-21
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
NATIONAL LIFE INSURANCE COMPANY PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
One National Life Drive Series A Series B Series C Total
Montpelier, Vermont 05604 6/19/03 $2,500,000 $0 $0 $2,500,000
Attention: Private Placements 9/19/03 $0 $0 $0 $0
Fax Number: (802) 223-9332
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "NRP
(Operating) LLC, 5.55% Senior Notes, Series A, due 2023, PPN 62963# AA 9,
principal, premium or interest") to:
J.P. Morgan Chase
New York, NY 10010
ABA #021000021
Account Number 323-1-14725
Account of National Life Closed Block
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 03-0144090
A-22
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
LIFE INSURANCE COMPANY OF THE SOUTHWEST PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
c/o National Life Insurance Company Series A Series B Series C Total
One National Life Drive 6/19/03 $0 $0 $1,500,000 $1,500,000
Montpelier, Vermont 05604 9/19/03 $0 $0 $0 $0
Attention: Private Placements
Fax Number: (802) 223-9332
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "NRP
(Operating) LLC, 5.55% Senior Notes, Series C, due 2013, PPN 62963# AC 5,
principal, premium or interest") to:
J.P. Morgan Chase
New York, New York 10010
ABA #021000021
Account Number 910-2-754349
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 75-0953004
A-23
NRP (Operating) LLC Note Purchase Agreement
NAME AND ADDRESS OF PURCHASER
BENEFICIAL LIFE INSURANCE COMPANY PRINCIPAL AMOUNT, SERIES AND ISSUANCE DATE OF NOTES TO BE PURCHASED
36 South State, 25th Floor Series A Series B Series C Total
Salt Lake City, Utah 84136 6/19/03 $1,000,000 $0 $0 $1,000,000
Attention: Sterling Russell 9/19/03 $0 $0 $0 $0
Facsimile: (801) 531-3339
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "NRP
(Operating) LLC, 5.55% Senior Notes, Series A, due 2023, PPN 62963# AA 9,
principal, premium or interest") to:
JPMorgan Chase
ABA #021000021
A/C #544755102
FFC: Zions First National Bank G70990
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: TFINN
Taxpayer I.D. Number: 87-0115120
A-24
DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"Additional Notes" is defined in Section 2.2.
"Additional Purchasers" means the purchasers of Additional Notes.
"Affiliate" means, at any time, and with respect to any Person, (a) any
other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, and (b) any Person beneficially owning or holding, directly
or indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary or any corporation of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly,
10% or more of any class of voting or equity interests. As used in this
definition, "Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an "Affiliate"
is a reference to an Affiliate of the Company.
"Arch Coal, Inc." shall mean Arch Coal Inc., a Delaware corporation.
"Asset Disposition" means any Transfer except:
(a) any Transfer from a Subsidiary to the Company or to a
Wholly-Owned Subsidiary so long as immediately before and immediately
after the consummation of any such Transfer and after giving effect
thereto, no Default or Event of Default would exist; and
(b) any Transfer made in the ordinary course of business and
involving only property that is either (1) held for lease or sale or
(2) equipment, fixtures, supplies or materials no longer required in
the operation of the business of the Company or any of its Subsidiaries
or that is obsolete.
"Bank Agreement" shall mean the Credit Agreement among the Company, as
Borrower thereunder, and the lenders and agents party thereto, dated as of
October 17, 2002, as amended, modified, extended, renewed, refinanced or
replaced from time to time.
"Business Day" means (a) for the purposes of Section 8.7 only, any day
other than a Saturday, a Sunday or a day on which commercial banks in New York
City are required or authorized to be closed, and (b) for the purposes of any
other provision of this Agreement, any day other than a Saturday, a Sunday or a
day on which commercial banks in Houston, Texas or New York, New York are
required or authorized to be closed.
SCHEDULE B
(to Note Purchase Agreement)
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Company" means NRP (Operating) LLC, a Delaware limited liability
company.
"Confidential Information" is defined in Section 20.
"Consolidated" means the consolidation of the accounts of any two or
more persons in accordance with GAAP.
"Consolidated Debt" means as of the date of any determination thereof,
all Debt of the Company and its Subsidiaries, determined on a consolidated basis
eliminating intercompany items.
"Consolidated EBITDDA" shall mean, for any period, Consolidated Net
Income for such period, (a) excluding therefrom (i) any non-cash extraordinary
items of gain or loss (including without limitation those items created by
mandated changes in accounting treatment) and (ii) any gain or loss of any other
Person accounted for on the equity method, except to the extent of cash
distributions received during the relevant period plus (b) the aggregate amounts
deducted in determining Consolidated Net Income for such period in respect of
(i) Consolidated Interest Expense, (ii) income taxes, (iii) depletion expense,
(iv) depreciation expenses and (v) amortization expenses. In the event that any
Person (or the assets thereof) is acquired or disposed of by the Company or any
Subsidiary (whether by merger, consolidation, asset or stock or other equity
acquisition or disposition or otherwise) at any time during the period of
calculation of Consolidated EBITDDA, such acquisition or such disposition, as
the case may be, shall be deemed to be made on the first day of such calculation
period.
"Consolidated Fixed Charges" means, for the relevant period, the sum of
(i) Consolidated Interest Expenses plus (ii) Consolidated Lease Expense. In the
event that any Person (or the assets thereof) is acquired or disposed of by the
Company or any Subsidiary (whether by merger, consolidation, asset or stock or
other equity acquisition or disposition or otherwise) at any time during the
period of calculation of Consolidated Fixed Charges, such acquisition or such
disposition, as the case may be, shall be deemed to be made on the first day of
such calculation period.
"Consolidated Interest Expense" means, for the relevant period, on a
Consolidated basis, the sum of all interest (including the interest portion of
any rentals in respect of Capital Leases) and letter of credit fees or
commissions due and payable by the Company and its Consolidated Subsidiaries
with regard to Debt for such period.
B-2
"Consolidated Lease Expense" means, for the relevant period, on a
Consolidated basis, the sum of all rentals in respect of all leases whereunder
the Company or any Consolidated Subsidiary is lessee, excluding, in each case,
Capital Leases.
"Consolidated Net Income" means the net income (or deficit) of the
Company and its Consolidated Subsidiaries, for the period in question, after
deducting all operating expenses, provisions for all taxes and reserves
(including reserves for all deferred income taxes, if applicable) and all other
proper deductions, all determined on a Consolidated basis.
"Consolidated Net Tangible Assets" shall mean, at any date of
determination, the Consolidated Total Assets after deducting therefrom (a) all
current liabilities (excluding (i) any current liabilities that by their terms
are extendable or renewable at the option of the obligor thereon to a time more
than 12 months after the time as of which the amount thereof is being computed
and (ii) current maturities of long-term debt) and (b) the value (net of any
applicable reserves) of all goodwill, trade names, trademarks, patents or other
like intangible assets, all as set forth, or on a pro forma basis would be set
forth, in the consolidated balance sheet of the Company and its Subsidiaries.
"Consolidated Subsidiaries" means the Subsidiaries of the Company whose
accounts are consolidated in accordance with GAAP.
"Consolidated Total Assets" means, as of the date of any determination
thereof, total assets of the Company and its Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Debt" with respect to any Person means, at any time, without
duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising in
the ordinary course of business but including all liabilities created
or arising under any conditional sale or other title retention
agreement with respect to any such property);
(c) all liabilities appearing on its balance sheet in
accordance with GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not it
has assumed or otherwise become liable for such liabilities); and
(e) any Guaranty of such Person or letter of credit of such
Person, with respect to liabilities of a type described in any of
clauses (a) through (d) hereof.
Debt of any Person shall include all obligations of such Person of the character
described in clauses (a) through (e) to the extent such Person remains legally
liable in respect thereof
B-3
notwithstanding that any such obligation is deemed to be extinguished under
GAAP. "Debt" of the Company or any Subsidiary shall not include intercompany
items.
"Debt Prepayment Application" means, with respect to any Transfer of
property constituting an Asset Disposition, the application by the Company or
any Subsidiary of cash in an amount equal to the Net Proceeds Amount (or portion
thereof) with respect to such Transfer to pay Senior Debt; provided, that in the
event such Senior Debt would otherwise permit the reborrowing of such Debt by
the Company, the commitment to relend such Debt shall be permanently reduced by
the amount of such Debt Prepayment Application.
"Default" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"Default Rate" means that rate of interest that is the greater of (i)
2% per annum above the rate of interest stated in clause (a) of the first
paragraph of the Notes or (ii) 2% over the rate of interest publicly announced
by Citibank, N.A. in New York, New York as its "base" or "prime" rate.
"Disposition Value" means, at any time, with respect to any property
(a) in the case of property that does not constitute
Subsidiary Stock, the book value thereof, valued at the time of such
disposition in good faith by the Company, and
(b) in the case of property that constitutes Subsidiary
Stock, an amount equal to that percentage of book value of the assets
of the Subsidiary that issued such Subsidiary Stock as is equal to the
percentage that the book value of such Subsidiary Stock represents of
the book value of all of the outstanding capital stock or similar
equity interests of such Subsidiary (assuming, in making such
calculations, that all Securities convertible into such capital stock
or similar equity interests are so converted and giving full effect to
all transactions that would occur or be required in connection with
such conversion) determined at the time of the disposition thereof, in
good faith by the Company.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including but not limited to
those related to Hazardous Materials, air emissions and discharges to waste or
public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under section 414 of the Code.
B-4
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, at any time and with respect to any
property, the sale of value of such property that would be realized in an
arm's-length sale at such time between an informed and willing buyer and an
informed and willing seller (neither being under a compulsion to buy or sell).
"Financing Agreement" or "Financing Agreements" shall mean and include
this Agreement, the Other Agreements, the Notes and the Subsidiary Guaranty, as
amended or modified from time to time.
"First Closing" is defined in Section 3.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"General Partner" means NRP (GP) LP, a Delaware limited partnership and
the sole general partner of the Parent.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or
other political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or which
asserts jurisdiction over any properties of the Company or any
Subsidiary, or
(b) any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or pertaining to,
any such government.
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or
payment of such indebtedness or obligation, or (ii) to maintain any
working capital or other balance sheet
B-5
condition or any income statement condition of any other Person or
otherwise to advance or make available funds for the purchase or
payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or
services, in each case, primarily for the purpose of assuring the owner
of such indebtedness or obligation of the ability of any other Person
to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or
obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
"holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
"Institutional Investor" means (a) any original purchaser of a Note,
(b) any holder of a Note holding more than 5.00% of the aggregate principal
amount of the Notes then outstanding, and (c) any bank, trust company, savings
and loan association or other financial institution, any pension plan, any
investment company, any insurance company, any broker or dealer, or any other
similar financial institution or entity, regardless of legal form.
"Investment Grade Rating" means, with respect to the Notes, a written
rating in respect of the Notes, assuming the Subsidiary Guaranty has been
released and that the Company is the only direct or indirect obligor in respect
of the Notes, of at least "BBB-" given by Standard & Poor's Rating Group, a
division of McGraw Hill Inc. or at least "Baa3" given by Moody's Investors
Service, Inc.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person.
"Make-Whole Amount" is defined in Section 8.7.
"Material" means material in relation to the business, operations,
affairs, financial condition, assets, properties, or prospects of the Company
and its Subsidiaries taken as a whole.
B-6
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of an Obligor
to perform its obligations under a Financing Agreement, or (c) the validity or
enforceability of a Financing Agreement.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"Net Proceeds Amount" means, with respect to any Transfer of any
property by any Person, an amount equal to the excess of
(a) the aggregate amount of the consideration (valued at the
Fair Market Value of such consideration at the time of the consummation
of such Transfer) allocated to such Person in respect of such Transfer,
net of any applicable taxes incurred in connection with such Transfer,
over
(b) all ordinary and reasonable out-of-pocket costs and
expenses actually incurred by such Person in connection with such
Transfer.
"Notes" is defined in Section 1.
"Obligors" shall mean and include the Company and each Subsidiary
Guarantor.
"Officer's Certificate" means a certificate of a Senior Financial
Officer or of any other officer of the Company whose responsibilities extend to
the subject matter of such certificate.
"Other Agreements" is defined in Section 2.1.
"Other Purchasers" is defined in Section 2.1.
"Parent" shall mean Natural Resource Partners L.P., a Delaware limited
partnership and its successors and permitted assigns.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company
B-7
or any ERISA Affiliate or with respect to which the Company or any ERISA
Affiliate may have any liability.
"Priority Debt" means the sum, without duplication, of (i) Debt of the
Company or any Subsidiary secured by Liens not otherwise permitted by clauses
(a) through (d) of Section 10.3; and (ii) all Debt of Subsidiaries (other than
to the Company or another Subsidiary).
"property" or "properties" means, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, choate
or inchoate.
"Property Reinvestment Application" means, with respect to any Transfer
of property constituting an Asset Disposition, the application of an amount
equal to the Net Proceeds Amount with respect to such Transfer to the
acquisition by the Company or any of its Subsidiaries of operating assets for
the Company or any Subsidiary to be used in the principal business of such
Person (or of an entity owning operating assets, in which event the Property
Reinvestment Application shall be limited to the Fair Market Value of such
operating assets).
"Proposed Prepayment Date" is defined in Section 8.3.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Required Holders" means, at any time, the holders of at least 51% in
principal amount of the Notes at the time outstanding (exclusive of Notes then
owned by the Company or any of its Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company (or other relevant Obligor) with responsibility for the
administration of the relevant portion of this agreement.
"Restricted Payment" is defined in Section 10.8.
"Second Closing" is defined in Section 3.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Senior Debt" shall mean and include (i) any Debt of the Company (other
than Debt owing to any Subsidiary or Affiliate) which is not expressed to be
junior or subordinate to any other Debt of the Company, and (ii) any Debt of a
Subsidiary which is not expressed to be junior or subordinate to any other Debt
of such Subsidiary (other than Debt owing to the Company, any other Subsidiary
or any Affiliate).
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company (or other relevant
Obligor).
"Series A Notes" is defined in Section 1.
B-8
"Series B Notes" is defined in Section 1.
"Series C Notes" is defined in Section 1.
"Subsidiary" shall mean, as to any Person, any corporation, association
or other business entity in which such Person or one or more of its Subsidiaries
or such Person and one or more of its Subsidiaries owns sufficient equity or
voting interest to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries). Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Company.
"Subsidiary Guarantee" shall mean the Subsidiary Guarantee dated June
19, 2003, of the Subsidiary Guarantors for the benefit of the holders of the
Notes, from time to time, as amended or modified.
"Subsidiary Guarantor" shall mean and include each Subsidiary of the
Company, from time to time.
"Subsidiary Stock" means, with respect to any Person, the capital stock
or limited liability company or other equity (or any options or warrants to
purchase stock or similar equity interests or other Securities exchangeable for
or convertible into stock or similar equity interests) of any Subsidiary of such
Person.
"Supplement" is defined in Section 2.2.
"this Agreement" shall mean this Note Purchase Agreement dated June 19,
2003, as amended or modified, from time to time.
"Transfer" means, with respect to any Person, any transaction in which
such Person sells, conveys, transfers or leases (as lessor) any of its property,
including, without limitation, Subsidiary Stock. For purposes of determining the
application of the Net Proceeds Amount in respect of any Transfer, the Company
may designate any Transfer as one or more separate Transfers each yielding a
separate Net Proceeds Amount. In any such case, (a) the Disposition Value of any
property subject to each such separate Transfer and (b) the amount of
Consolidated Total Assets attributable to any property subject to each such
separate Transfer shall be determined in the reasonable good faith of the
Company and, in the absence of any such determination, such allocation shall be
made allocating the aggregate Disposition Value of, and the aggregate
Consolidated Total Assets attributable to, all property subject to all such
separate Transfers to each such separate Transfer on a proportionate basis.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary one
hundred percent (100%) of all of the equity interests (except directors'
qualifying shares) and voting interests of
B-9
which are owned by any one or more of the Company and the Company's other
Wholly-Owned Subsidiaries at such time.
"WPP Group" shall mean, collectively Western Pocahontas Properties
Limited Partnership, a Delaware limited partnership, Great Northern Properties
Limited Partnership, a Delaware limited partnership, and New Gauley Coal
Corporation, a West Virginia corporation.
B-10
SUBSIDIARIES AND AFFILIATES
(i) SUBSIDIARIES OF THE COMPANY
SUBSIDIARY JURISDICTION OWNERSHIP BY THE COMPANY
WPP LLC Delaware 100%
GNP LLC Delaware 100%
NNG LLC Delaware 100%
ACIN LLC Delaware 100%
CSTL LLC Delaware 100%
WBRD LLC Delaware 100%
(ii) AFFILIATES OF THE COMPANY
Natural Resource Partners L.P.
NRP (GP) LP
GP Natural Resource Partners LLC
Ark Land Company
Arch Coal, Inc.
Western Pocahontas Properties Limited Partnership
Great Northern Properties Limited Partnership
New Gauley Coal Corporation
Robertson Coal Management LLC
(iii) SENIOR OFFICERS OF THE COMPANY
Nick Carter -- President and Chief Operating Officer
Dwight Dunlap -- Chief Financial Officer and Treasurer
Kevin Wall -- Vice President and Chief Engineer
Wyatt Hogan -- Vice President, General Counsel and Assistant
Secretary
Ken Hudson -- Controller
Chuck Kerr -- Secretary
SCHEDULE 5.4
(to Note Purchase Agreement)
FINANCIAL STATEMENTS PROVIDED TO PURCHASERS
NATURAL RESOURCE PARTNERS L.P.
Financial Statements for the period October 17, 2002 through December
31, 2002
Financial Statements for the quarter ended March 31, 2003
WESTERN POCAHONTAS PROPERTIES LIMITED PARTNERSHIP
Financial statements for the period ended October 16, 2002 and for the
years ended December 31, 2001 and 2000
GREAT NORTHERN PROPERTIES LIMITED PARTNERSHIP
Financial statements for the period ended October 16, 2002 and for the
years ended December 31, 2001 and 2000
NEW GAULEY COAL CORPORATION
Financial statements for the period ended October 16, 2002 and for the
years ended December 31, 2001 and 2000
ARCH COAL, INC. CONTRIBUTED PROPERTIES
Statement of Assets and Liabilities Contributed as of December 31, 2001
Statement of revenues and direct costs and expenses for the period
ended October 16, 2002 and the years ended December 31, 2001 and 2000.
SCHEDULE 5.5
(to Note Purchase Agreement)
EXISTING DEBT
Debt as of June 19, 2003 (prior to Closing) - $122.6 million with
interest at PNC Bank's prime rate.
SCHEDULE 5.15
(to Note Purchase Agreement)
AMORTIZATION OF SERIES A NOTES
DATE OF PRINCIPAL PAYMENT AMOUNT OF PRINCIPAL PAYMENT
June 19, 2004 $3,300,000.00
June 19, 2005 $3,300,000.00
June 19, 2006 $3,300,000.00
June 19, 2007 $3,300,000.00
June 19, 2008 $3,300,000.00
June 19, 2009 $3,300,000.00
June 19, 2010 $3,300,000.00
June 19, 2011 $3,300,000.00
June 19, 2012 $3,300,000.00
June 19, 2013 $3,300,000.00
June 19, 2014 $2,700,000.00
June 19, 2015 $2,700,000.00
June 19, 2016 $2,700,000.00
June 19, 2017 $2,700,000.00
June 19, 2018 $2,700,000.00
June 19, 2019 $2,700,000.00
June 19, 2020 $2,700,000.00
June 19, 2021 $2,700,000.00
June 19, 2022 $2,700,000.00
June 19, 2023 $2,700,000.00
SCHEDULE 8.1(a)
(to Note Purchase Agreement)
AMORTIZATION OF SERIES B NOTES
DATE OF PRINCIPAL PAYMENT AMOUNT OF PRINCIPAL PAYMENT
June 19, 2004 $6,050,000.00
June 19, 2005 $6,050,000.00
June 19, 2006 $6,050,000.00
June 19, 2007 $6,050,000.00
June 19, 2008 $6,050,000.00
June 19, 2009 $6,050,000.00
June 19, 2010 $6,050,000.00
June 19, 2011 $5,333,333.38
June 19, 2012 $4,616,666.66
June 19, 2013 $4,616,666.66
June 19, 2014 $4,616,666.66
June 19, 2015 $4,616,666.66
June 19, 2016 $4,616,666.66
June 19, 2017 $4,616,666.66
June 19, 2018 $4,616,666.66
SCHEDULE 8.1(b)
(to Note Purchase Agreement)