$43,160,000
Peninsula Ports Authority of Virginia
Coal Terminal Revenue Refunding Bonds
(Dominion Terminal Associates Project--Brink's Issue)
Series 2003
BOND PURCHASE AGREEMENT
Dated September 17, 2003
Peninsula Ports Authority of Virginia
21 Enterprise Parkway
Suite 200
Hampton, Virginia 23666
Attention: Chairman
Dominion Terminal Associates
P.O. Box 967A
Newport News, Virginia 23607
Attention: President
Pittston Coal Terminal Corporation
c/o The Brink's Company
1801 Bayberry Court
Richmond, Virginia 23226
Attention: Treasurer and General Counsel
The Brink's Company
1801 Bayberry Court
Richmond, Virginia 23226
Attention: Treasurer and General Counsel
Ladies and Gentlemen:
Banc of America Securities LLC (the "Underwriter"), offers to enter into
the following agreement with Dominion Terminal Associates (the "Partnership"),
Pittston Coal Terminal Corporation ("Pittston"), The Brink's Company (the
"Parent Company"), and Peninsula Ports Authority of Virginia (the "Issuer"),
which, upon the acceptance by the Partnership, Pittston, the Parent Company and
the Issuer of this offer, will be binding upon the Partnership, Pittston, the
Parent Company and the Issuer and, subject to the terms and conditions set forth
herein, upon the Underwriter. Terms not otherwise defined herein shall have the
same meanings assigned to such terms in the Indenture hereinafter referred to.
This offer is made subject to acceptance by the Partnership, Pittston, the
Parent Company and the Issuer on or before 5:00 p.m., eastern time, on the date
hereof.
The Partnership consists of various companies (the "Companies"). The
internal affairs of the Partnership are governed by a Second Amended and
Restated Consortium Agreement dated as of July 1, 1987, as amended by a First
Amendment thereto dated as of March 31, 1989, a Second Amendment thereto dated
as of September 30, 1989, a Third Amendment thereto dated as of September 11,
1990, a Fourth Amendment thereto dated as of November 15, 1992, a Fifth
Amendment thereto dated as of December 31, 2001, a Sixth Amendment thereto dated
as of June 30, 2003, a Seventh Amendment thereto dated as of June 30, 2003, and
an Eighth Amendment thereto dated as of August 15, 2003 (as amended, the
"Consortium Agreement").
Section 1. Purchase and Sale of the Bonds. (a) Upon the terms and conditions and
upon the basis of the respective representations, warranties and covenants
herein, the Underwriter hereby agrees to purchase from the Issuer, and the
Issuer hereby agrees to sell to the Underwriter, $43,160,000 aggregate principal
amount of the Issuer's Coal Terminal Revenue Refunding Bonds (Dominion Terminal
Associates Project--Brink's Issue) Series 2003 (the "Bonds"), bearing interest
as described in the Official Statement (as defined below), at the purchase price
of 100% of the principal amount thereof. The obligations of the Issuer to sell,
and of the Underwriter to purchase hereunder, are with respect to all (but not
less than all) of the Bonds.
(b) The Bonds shall be substantially as described in the Official Statement
dated the date hereof (including the cover page thereof and Appendices thereto,
as it may be amended or supplemented from time to time, the "Official
Statement"). The Bonds will be issued pursuant to an Indenture of Trust dated as
of September 1, 2003 (the "Indenture") between the Issuer and Wachovia Bank,
National Association, as trustee (the "Trustee"), to provide funds for the
refunding of the Issuer's Coal Terminal Revenue Refunding Bonds (Dominion
Terminal Associates Project) Series 1992 (the "Prior Bonds"). The Issuer and the
Partnership will enter into a Loan Agreement dated as of September 1, 2003 (the
"Loan Agreement") providing for payments by the Partnership in amounts
sufficient to pay the principal of and premium, if any, and interest on the
Bonds. The Bonds will be secured by an assignment by the Issuer to the Trustee
of amounts payable by the Partnership pursuant to the Loan Agreement. Pittston
will agree to make payments to the Partnership of amounts sufficient to enable
it to pay the principal of and premium, if any, and interest on the bonds ("Debt
Service") pursuant to an Amended and Restated Throughput and Handling Agreement
dated as of July 1, 1987, as amended by a First Amendment thereto dated as of
September 30, 1989, a Second Amendment thereto dated as of September 11, 1990, a
Third Amendment thereto dated as of November 15, 1992, a Fourth Amendment
thereto dated as of June 2, 1994, a Fourth Amendment thereto dated as of June
30, 2003, a Fifth Amendment thereto dated as of June 30, 2003, and a Sixth
Amendment thereto dated as of August 15, 2003 (as amended, the "Throughput
Agreement") among Pittston, the Companies and the Partnership. Payment of Debt
Service will be guaranteed by the Parent Company to the Trustee, for the benefit
of the Bondholders, pursuant to a Parent Company Guaranty Agreement dated as of
September 1, 2003 (the "Parent Company Guaranty") between the Parent Company and
the Trustee. Pursuant to an Assignment dated as of September 1, 2003 (the
"Assignment"), among the Partnership, Pittston and the Trustee, the Partnership
will assign to the Trustee all of its right, title and interest in and to the
payments of Debt Service to be made by Pittston under the Throughput Agreement.
The Parent Company will enter into a Continuing Disclosure Undertaking (the
"Undertaking") for the benefit of the beneficial owners of the Bonds to provide
certain information annually and to provide notice of certain events to certain
information repositories pursuant to the requirements of Section (b)(5) of Rule
15c2-12 adopted by the SEC under the Securities Exchange Act of 1934, as amended
(the "1934 Act").
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Section 2. Approval of Official Statement and Other Documents. On or before the
Closing, the Issuer and the Partnership shall deliver to the Underwriter such
reasonable number of copies of the Official Statement as the Underwriter shall
request. The Issuer and the Partnership authorize and approve the Official
Statement and consent to the use by the Underwriter of the Official Statement.
The Partnership and the Issuer have authorized or approved or will authorize or
approve the Indenture, the Bonds, the Loan Agreement, the Parent Company
Guaranty, each with such changes made prior to Closing as may be approved by the
Issuer, the Partnership and the Underwriter. The Issuer and the Partnership
ratify and consent to the use by the Underwriter of the Preliminary Official
Statement dated August 29, 2003 (including the cover page thereof and Appendices
A and B thereto) in connection with the offering of the Bonds prior to the date
hereof, which the Issuer and the Partnership deemed final as of its date within
the meaning of Rule 15c2-12 of the Securities and Exchange Commission ("Rule
15c2-12").
Section 3. Representations, Warranties and Covenants of the Partnership,
Pittston and the Parent Company. (a) The Partnership represents and warrants to
and covenants with the Underwriter that:
(i) This Agreement, the Loan Agreement, the Assignment, the Fifth
Supplemental Lease (the "Partnership Documents") have been duly authorized,
executed and delivered by the Partnership and, assuming the due authorization,
execution and delivery by the other parties hereto, constitute valid and binding
agreements of the Partnership enforceable against the Partnership in accordance
with their terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and to the availability of equitable remedies), except as rights to
indemnity under this Agreement may be limited by applicable law, including
federal and state securities laws.
(ii) Any writing furnished by the Partnership to the Underwriter or
Bond Counsel will not contain a materially false or misleading statement of
fact.
Any certificate signed by any official of the Partnership and delivered to
the Underwriter shall be deemed a representation and warranty by the Partnership
to the Underwriter as to statements made therein.
(b) The Parent Company and Pittston represent to and agree with the Issuer,
the Partnership and the Underwriter as follows:
(i) the Official Statement (except for the information under the
heading "Underwriting") does not, and the related Preliminary Official Statement
(except for the information under the heading "Underwriting") as of its date did
not, contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made in them, in the light of the
circumstances under which they were made, not misleading. The Parent Company and
Pittston each consents to the use by the Underwriter of the Official Statement
insofar as it
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relates to each of them in connection with the sale and distribution of the
Bonds and confirms that it has similarly consented to the use of the Preliminary
Official Statement for such purpose before the availability of the Official
Statement. Pittston and the Parent Company deem the Official Statement "final"
within the meaning of Rule 15c2-12 under the Securities Exchange Act of 1934.
(ii) (1)This Agreement, the Parent Company Guaranty and the Undertaking
(the "Parent Company Documents") have been duly authorized, executed and
delivered by the Parent Company and, assuming the due authorization, execution
and delivery by the other parties hereto, constitute valid and binding
agreements of the Parent Company enforceable against the Parent Company in
accordance with their terms (subject to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and to the availability of equitable remedies),
except as rights to indemnity under this Agreement may be limited by applicable
law, including federal and state securities laws. (2) This Agreement, the
Throughput Agreement and the Assignment (the "Pittston Documents") have been
duly authorized, executed and delivered by Pittston and, assuming the due
authorization, execution and delivery by the other parties hereto, constitute
valid and binding agreements of the Pittston enforceable against Pittston in
accordance with their terms (subject to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and to the availability of equitable remedies),
except as rights to indemnity under this Agreement may be limited by applicable
law, including federal and state securities laws.
(iii) Any writing furnished by the Parent Company or Pittston to the
Underwriter or Bond Counsel in connection with the sale of the Bonds will not
contain a materially false or misleading statement of fact.
(iv) From the date hereof until the earlier of (i) 90 days from the end
of the underwriting period or (ii) the time when the Official Statement is
available to any person from a Nationally Recognized Municipal Securities
Information Repository ("NRMSIR") which has been so designated by the Securities
and Exchange Commission pursuant to Rule 15c2-l2 under 1934 Act (but in no case
less than 25 days following the end of the underwriting period) if any event
occurs as a result of which it is necessary to amend or supplement the Official
Statement, in order to make the statements in it not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements made in it, in the light of the circumstances when the
Official Statement is delivered to a purchaser, not misleading, the Parent
Company and Pittston, at their expense, will prepare and furnish to the
Underwriter (and will file or cause the same to be filed with each NRMSIR having
the Official Statement on file and will mail or cause the same to be mailed to
each record owner of the Bonds) amendments or supplements to the Official
Statement so that the statements made in it, in the light of the circumstances
when it is amended or supplemented, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
in it not misleading.
(v) The Parent Company agrees to pay the Underwriter a fee of $323,700
in connection with the Underwriter's offering of the Bonds. The Parent Company
may presume for purposes of this Section 3 that the underwriting period for
the Bonds will end on the date of issuance and delivery thereof unless the
Parent Company is otherwise notified in writing at the Closing by the
Underwriter.
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Any certificate signed by any official of the Parent Company or Pittston
and delivered to the Underwriter shall be deemed a representation and warranty
by the Parent Company or Pittston to the Underwriter as to statements made
therein.
Section 4. Representations, Warranties and Covenants of the Issuer. The Issuer
represents and warrants to and covenants with the Underwriter that:
(a) The Issuer is a body politic and corporate and a political subdivision
of the Commonwealth of Virginia (the "Commonwealth") duly organized, operating
and existing under the provisions of Chapter 46 of the Acts of Assembly of 1952
of the Commonwealth, as amended, and has full legal right, power and authority
(1) to adopt the resolution (the "Authorizing Resolution") authorizing the
issuance, sale and delivery of the Bonds and the Issuer's execution and delivery
of the Indenture, the Loan Agreement, the Official Statement and this Agreement,
(2) to issue, sell and deliver the Bonds to the Underwriter upon the terms set
forth in this Agreement and the Official Statement and (3) otherwise to carry
out its part of the transactions contemplated by the Fifth Supplemental Lease,
the Indenture, the Loan Agreement, the Official Statement and this Agreement.
(b) The Issuer has duly adopted the Authorizing Resolution and has duly
authorized (1) the execution and delivery by the Issuer of the Fifth
Supplemental Lease, the Indenture, the Loan Agreement, the Official Statement
and this Agreement and performance of its obligations in them, (2) the issuance,
sale and delivery of the Bonds upon the terms set forth in this Agreement, (3)
the distribution of the Preliminary Official Statement and the Official
Statement in connection with the sale of the Bonds and (4) the taking of all
action required of the Issuer to carry out its part of the transactions
contemplated by the Fifth Supplemental Lease, the Indenture, the Loan Agreement,
the Official Statement and this Agreement.
(c) The Authorizing Resolution constitutes the legal, valid and binding
action of the Issuer, and the Fifth Supplemental Lease, the Indenture, the Loan
Agreement and this Agreement, when executed and delivered by the other parties
to them, will constitute legal, valid and binding special, limited obligations
of the Issuer enforceable against it in accordance with their terms (subject to
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and to the
availability of equitable remedies), except as rights to indemnity under this
Agreement may be limited by applicable law, including federal and state
securities laws.
(d) When authenticated and delivered to and paid for by the Underwriter in
accordance with this Agreement the Bonds will be duly authorized, executed,
issued and delivered and will constitute legal, valid and binding special,
limited obligations of the Issuer enforceable against it in accordance with
their terms.
(e) The execution, delivery and performance by the Issuer of the Bonds, the
Fifth Supplemental Lease, the Indenture, the Loan Agreement and this Agreement
will not conflict with or result in a breach or violation of, or constitute a
default under, the rules of procedure of the Issuer, or any indenture, mortgage,
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deed of trust, agreement or instrument to which the Issuer is a party or by
which it or any of its properties is bound, or any constitutional provision or
statute, or any rule, regulation, judgment, order or decree of any court or
governmental agency or body to which the Issuer is subject, or (except as
provided in the Fifth Supplemental Lease and the granting clause of the
Indenture) result in the creation or imposition of any lien, charge or other
security interest or encumbrance on any of its properties.
(f) The Issuer has complied with all provisions of the laws of the
commonwealth in connection with the transactions contemplated to be performed by
it under the Bonds, the Fifth Supplemental Lease, the Indenture, the Loan
Agreement and this Agreement (the "Issuer Documents").
(g) Except as may be required under blue sky or other securities laws of
any state, no action by any governmental or regulatory authority of the
commonwealth having jurisdiction over the Issuer that has not been obtained is
required for the sale of the Bonds or the consummation by the Issuer of the
other transactions contemplated to be performed by it under the Bonds, the Fifth
Supplemental Lease, the Indenture, the Loan Agreement, this Agreement and the
Official Statement; provided that no representation is made by the Issuer with
respect to compliance with filing, registration or any other requirements under
Federal securities laws applicable to the sale of the Bonds.
(h) There is no action, suit, proceeding or investigation before or by any
court or governmental agency or body pending or, to the best knowledge of the
Issuer, threatened against or affecting the Issuer to restrain or enjoin the
issuance, sale or delivery of the Bonds or collection of payments under the Loan
Agreement, contesting or affecting the validity of the Authorizing Resolution,
the Bonds, the Fifth Supplemental Lease, the Indenture, the Loan Agreement or
this Agreement, contesting the power of the Issuer to enter into or perform its
obligations under any of the foregoing or in which an unfavorable outcome would
otherwise adversely affect the transactions contemplated by the Fifth
Supplemental Lease, the Indenture, the Loan Agreement, this Agreement or the
Official Statement or the validity of those documents, the Authorizing
Resolution, the Bonds or the exemption of interest on the Bonds from Federal and
Commonwealth income taxation.
(i) The Issuer will not take or omit to take any action over which it
exercises control that might result in the loss of the exemption of interest on
the Bonds from Federal or Commonwealth income taxation.
(j) The information under "The Issuer" in the Preliminary Official
Statement as of its date did not, and such information in the Official Statement
does not, and at the Closing date will not, contain any untrue or misleading
statements of a material fact or omit to state any material fact necessary to
make the statements contained therein, in the light of the circumstances under
which they were or are made, not misleading.
(k) The Issuer will cooperate with the Underwriter and its counsel in
endeavoring to qualify the Bonds for offering and sale under the securities or
blue sky laws of such jurisdictions of the United States as the Underwriter may
request, but the Issuer will not be required to execute a consent to service of
process or qualify to do business in any jurisdiction. The Parent Company will
pay the expenses of any action under this paragraph.
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(l) Neither the Issuer nor anyone acting in its behalf has, directly or
indirectly, offered the Bonds or any similar securities of the Issuer relating
in any way to the coal terminal facilities described in the Official Statement
(the "Project") for sale to, or solicited any offer to buy the same from, anyone
other than the Underwriter.
(m) The Issuer will apply the proceeds from the sale of the Bonds as
specified in the Indenture and the Loan Agreement. So long as any of the Bonds
remain outstanding and except as may be authorized by the Indenture, the Issuer
will not issue or sell any bonds or obligations, other than the Bonds, the
principal of or premium, if any, or interest on which will be payable from the
property described in the granting clause of the Indenture.
(n) The Issuer will cooperate with the Underwriter and its counsel in
applying for and securing a rating on the Bonds by Standard & Poor's Corporation
("S&P") and the Issuer agrees that this obligation will continue until such
rating on the Bonds is secured. The Parent Company will pay the expenses of any
action taken under this paragraph.
(o) Any writing furnished by the Issuer to the Underwriters or McGuireWoods
LLP, Bond counsel, will not contain a materially false or misleading statement
of fact.
Any certificate signed by any official of the Issuer and delivered to the
Underwriter shall be deemed a representation and warranty by the Issuer to the
Underwriter as to statements made therein.
Section 5. Closing. On or prior to 11:00 a.m., Eastern time, on September 4,
2003, at the offices of McGuireWoods LLP, McLean, Virginia, or at such other
time or such other date or such other place as shall have been mutually agreed
upon by the Partnership, the Issuer and the Underwriter, the Issuer will
deliver, or cause to be delivered, to the Underwriter, the Bonds in definitive
form duly executed by the Issuer and authenticated by the Trustee, and the
Underwriter will accept such delivery and pay the purchase price of the Bonds,
subject to the provisions hereof including, without limitation, Section 7
hereof. Payment of the purchase price for the Bonds by the Underwriter will be
made by wire transfer in immediately available funds, payable to the Trustee, as
provided in the Indenture, or by such other means as is acceptable to the
Issuer, the Partnership, the Underwriter and the Trustee. The above described
payment and delivery is herein called the "Closing."
The Bonds will be delivered as one fully registered bond registered in the
name of Cede & Co. and will be available for checking by the Underwriter not
less than one business day prior to the Closing at The Depository Trust Company
("DTC") or its agent in New York, New York.
It is anticipated that a CUSIP identification number will be printed on the
Bonds, but neither the failure to print such number on any Bond nor any error in
the printing of such number shall constitute cause for a failure or refusal by
the Underwriter to accept delivery of and pay for any Bonds. The Issuer and the
Partnership will cooperate with the Underwriter to obtain the CUSIP number.
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Section 6. Termination of Bond Purchase Agreement. The Underwriter shall have
the right to cancel its obligation to purchase the Bonds if, on or after the
date hereof and on or before the date of Closing: (i) (a) legislation shall be
enacted by the House of Representatives or the Senate of the Congress of the
United States, or recommended by the President of the United States to the
Congress of the United States for passage, or favorably reported for passage to
either the House of Representatives or the Senate by any committee of either
body to which such legislation has been referred for consideration, (b) a
decision shall be entered by a court established under Article III of the
Constitution of the United States, or the Tax Court of the United States, or (c)
a ruling, regulation or order of the Treasury Department of the United States or
the Internal Revenue Service shall be made or proposed, which has the purpose or
effect of including the interest on the Bonds in the gross income of the owners
of the Bonds for federal income tax purposes; (ii) legislation shall be enacted,
or actively considered for enactment by the United States Congress, or a
decision by a court of the United States shall be rendered, or a ruling or
regulation by the Securities and Exchange Commission or other governmental
agency having jurisdiction of the subject matter shall be made or proposed, the
effect of which is that (A) the Bonds, or any other "security" as defined in the
Securities Act of 1933, as amended and as then in effect (the "Securities Act"),
relating to the Bonds, are not exempt from the registration, qualification or
other requirements of the Securities Act or the Exchange Act, or (B) the
Indenture is not exempt from the registration, qualification or other
requirements of the Trust Indenture Act of 1939, as amended and as then in
effect (the "Trust Indenture Act'); (iii) a stop order, ruling or regulation by
the Securities and Exchange Commission shall be issued or made, the effect of
which is that the issuance, offering or sale of the Bonds, as contemplated
herein or in the Official Statement, is or would be in violation of any
provision of the Securities Act, the Exchange Act, the Trust Indenture Act, or
other federal law; (iv) there shall occur any event which in the reasonable
judgment of the Underwriter either (A) makes untrue or incorrect in any material
respect any statement or information contained in the Official Statement or (B)
is not reflected in the Official Statement but should be reflected therein in
order to make the statements and information contained therein not misleading in
any material respect and, in either case, the Partnership or the Issuer refuses
to permit the Official Statement to be supplemented to correct or supply such
statement or information, or the effect of the Official Statement as so
corrected or supplemented is, in the reasonable judgment of the Underwriter, to
materially adversely affect the market for the Bonds or the sale of the Bonds by
the Underwriter at the contemplated offering price; (v) there shall have been an
outbreak or escalation of hostilities or any other insurrection or armed
conflict or any calamity or crisis which, in the reasonable judgment of the
Underwriter, materially adversely affects the market for the Bonds or the sale
of the Bonds by the Underwriter at the contemplated offering price; (vi) there
shall have been a general suspension of trading in securities on the New York
Stock Exchange, the American Stock Exchange, the Pacific Stock Exchange, the
Chicago Board of Trade, or any other major U.S. financial or securities
exchange, maximum or minimum prices not previously in effect shall have been
established on any such exchange, or the daily volume or average prices on any
such exchange shall have significantly changed from the current average daily
volume or level of prices, the effect of any of which on the financial markets
of the United States is, in the reasonable judgment of the Underwriter, to
materially adversely affect the market for the Bonds or the sale of the Bonds by
the Underwriter at the contemplated offering price; (vii) a banking moratorium
shall have been declared by federal, Virginia or New York authorities or a
material disruption in commercial banking or securities settlement or clearance
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services shall have occurred; (viii) there shall have occurred any material
adverse change in the affairs of the Partnership or the Issuer or the
transactions contemplated by this Bond Purchase Agreement, the Official
Statement, the Partnership Documents, the Parent Company Documents, the Pittston
Documents or the Issuer Documents; (ix) there shall be any litigation, pending
or threatened, which, in the reasonable judgment of the Underwriter, makes it
impracticable or inadvisable to offer or deliver the Bonds on the terms
contemplated by the Official Statement; or (x) the Indenture, the Official
Statement, the Partnership Documents, the Parent Company Documents, the Pittston
Documents and the Issuer Documents are not executed, approved and delivered. In
the event of any termination of this Bond Purchase Agreement permitted under
this Section 6, there shall be no liability of any party to this Bond Purchase
Agreement to any other party, other than as provided in Sections 9 and 11.
Section 7. Conditions to the Underwriter's Obligations. The obligations of the
Underwriter hereunder shall be subject to the performance by the Partnership,
Pittston, the Parent Company and the Issuer of their obligations to be performed
hereunder at and prior to the Closing and to the following conditions:
(a) At the time of the Closing, the Official Statement, the Partnership
Documents, the Pittston Documents, the Parent Company Documents and the Issuer
Documents shall be in full force and effect in the form heretofore approved by
the Partnership, Pittston, the Parent Company, the Issuer, the Trustee and the
Underwriter and none of the foregoing documents shall have been amended,
modified or supplemented from the forms thereof as of the date hereof, except as
may have been approved by the Underwriter, the Closing in all events, however,
to be deemed such approval.
(b) At the Closing, the Bonds shall be authenticated by the Trustee and
delivered to or as directed by the Underwriter.
(c) At or prior to the Closing, the Underwriter shall receive the following
documents in such number of counterparts as shall be mutually agreeable to the
Underwriter, the Issuer and the Partnership:
(1) The approving opinion of McGuireWoods LLP, Bond Counsel, dated the
date of Closing, substantially in the form attached hereto as Exhibit A;
(2) The supplemental opinion of McGuireWoods LLP, dated the date of
Closing, substantially in the form attached hereto as Exhibit B;
(3) The opinion of Kaufman & Canoles, P.C., Counsel for the Issuer,
dated the date of Closing, substantially in the form attached hereto as Exhibit
C;
(4) The opinion, dated the date of Closing, of McGuireWoods LLP,
counsel for the Partnership, substantially in the form attached hereto as
Exhibit D;
(5) The opinion of Fulbright & Jaworski L.L.P., as Counsel passing
upon certain matters for the Underwriter, dated the date of Closing,
substantially in the form attached hereto as Exhibit E;
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(6) Opinions, dated the Closing date, of counsel acceptable to
the Underwriter for Pittston and the Parent Company, in forms reasonably
satisfactory to the Underwriter and its counsel;
(7) A certificate dated the date of Closing and signed by the President
or a Vice-President or the Treasurer or the Assistant Treasurer and the
Secretary or the Assistant Secretary of the Partnership to the effect that (A)
each of the representations and warranties of the Partnership set forth in
Section 3 hereof and in the Partnership Documents shall be accurate as if made
on and as of the date of Closing, and (B) all of the conditions and agreements
required in this Bond Purchase Agreement to be satisfied or performed by the
Partnership at or prior to the date of Closing shall have been satisfied or
performed in the manner and with the effect contemplated herein;
(8) A certificate dated the date of Closing and signed by the President
or a Vice-President or the Treasurer or the Assistant Treasurer and the
Secretary or the Assistant Secretary of Pittston to the effect that (A) each of
the representations and warranties of Pittston set forth in Section 3(b) hereof
and in the Pittston Documents shall be accurate as if made on and as of the date
of Closing, and (B) all of the conditions and agreements required in this Bond
Purchase Agreement to be satisfied or performed by Pittston at or prior to the
date of Closing shall have been satisfied or performed in the manner and with
the effect contemplated herein;
(9) A certificate dated the date of Closing and signed by the President
or a Vice-President or the Treasurer or the Assistant Treasurer and the
Secretary or the Assistant Secretary of the Parent Company to the effect that
(A) each of the representations and warranties of the Parent Company set forth
in Section 3(b) hereof and in the Parent Company Documents shall be accurate as
if made on and as of the date of Closing, (B) all of the conditions and
agreements required in this Bond Purchase Agreement to be satisfied or performed
by the Parent Company at or prior to the date of Closing shall have been
satisfied or performed in the manner and with the effect contemplated herein,
and (C) as of the date of Closing, there has been no material adverse change
(not in the ordinary course of business) in the condition of the Parent Company
and its subsidiaries, taken as a whole, from that set forth in or contemplated
by the Official Statement;
(10) A certificate dated the date of Closing and signed by the Chairman
and the Secretary of the Issuer to the effect that (A) each of the
representations and warranties of the Issuer set forth in Section 4 hereof and
in the Issuer Documents shall be accurate as if made on and as of the date of
Closing, and (B) all of the conditions and agreements required in this Bond
Purchase Agreement to be satisfied or performed by the Issuer at or prior to the
date of Closing shall have been satisfied or performed in the manner and with
the effect contemplated herein;
(11) A certificate of a duly authorized officer of the Trustee, as to
the due execution of the Indenture , the Parent Company Guaranty and the
Assignment by the Trustee and the due authentication and delivery of the Bonds
by the Trustee, in form and substance satisfactory to the Underwriter;
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(12) Letters from Moody's Investors Service ("Moody's) and Standard &
Poor's ("S&P") confirming that the ratings issued and in effect on the Bonds is
"Baa3" by Moody's and "BBB" by S&P;
(13) Such additional opinions, certificates, proceedings, instruments
and other documents as the Underwriter may reasonably request in connection with
the transactions contemplated by this Bond Purchase Agreement.
(d) At or prior to the Closing, the Underwriter shall receive the
underwriting fee from the Parent Company as provided in Section 3(b)(v) hereof.
Section 8. Nonsatisfaction of Conditions. If any of the conditions to the
obligations of the Underwriter contained in Section 7 or elsewhere in this Bond
Purchase Agreement shall not have been satisfied when and as required herein,
all obligations of the Underwriter hereunder may be terminated by the
Underwriter at, or at any time prior to, the Closing by written notice to the
Partnership and the Issuer.
Section 9. Indemnification. (a) The Parent Company will indemnify and hold
harmless the Underwriter, each of its directors, officers and employees and each
person who controls the Underwriter within the meaning of Section 15 of the
Securities Act (any such person being herein in this paragraph (a) sometimes
called an "Indemnified Party"), against all losses, claims, damages or
liabilities, joint or several, to which such Indemnified Party may become
subject under any statute or at law or in equity or otherwise, and will
reimburse any such Indemnified Party for any legal or other expenses incurred by
it in connection with investigating any claims against it and defending any
actions, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon (1) an allegation or determination that the Bonds or
the obligations of the Issuer under the Indenture, the obligations of the
Partnership under the Loan Agreement, the obligations of Pittston under the
Thoughput Agreement or the obligations of the Parent Company under the Parent
Company Guaranty, should have been registered under the Securities Act or the
Exchange Act or the Indenture should have been qualified under the Trust
Indenture Act, or (2) any untrue statement, or alleged untrue statement, of a
material fact contained in the Official Statement or any amendment or supplement
to the Official Statement or the omission or alleged omission to state in them a
material fact necessary to make the statements in them not misleading, except a
statement or omission under the heading "UNDERWRITING." The Parent Company shall
not be liable under this paragraph if the person asserting any such loss, claim,
damage or liability purchased Bonds from the Underwriter, if delivery to such
person of the Official Statement or any amendment of or supplement to the
Official Statement would have been a valid defense to the action from which such
loss, claim, damage or liability arose and if the Official Statement, amendment
or supplement was not delivered to such person by or on behalf of the
Underwriter. This indemnity agreement will not limit any other liability the
Parent Company may otherwise have to any such Indemnified Party.
(b) The Parent Company will indemnify and hold harmless the Issuer, each of
its officials and employees and each person who controls the Issuer within the
meaning of Section 15 of the Securities Act (any such person being herein in
this paragraph (b) sometimes called an "Indemnified Party"), against all losses,
claims, damages or liabilities, joint or several, to which such Indemnified
Party may become subject under any statute or at law or in equity or otherwise,
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and will reimburse any such Indemnified Party for any legal or other expenses
incurred by it in connection with investigating any claims against it and
defending any actions, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon (1) an allegation or determination that
the Bonds or the obligations of the Issuer under the Indenture, the obligations
of the Partnership under the Loan Agreement, the obligations of Pittston under
the Thoughput Agreement or the obligations of the Parent Company under the
Parent Company Guaranty, should have been registered under the Securities Act or
the Exchange Act or the Indenture should have been qualified under the Trust
Indenture Act, or (2) any untrue statement, or alleged untrue statement, of a
material fact contained in the Official Statement or any amendment or supplement
to the Official Statement or the omission or alleged omission to state in them a
material fact necessary to make the statements in them not misleading; provided,
however, that the Parent Company shall not be liable in any such case to the
Issuer to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in the Official Statement or any such amendment or
supplement in reliance upon and in conformity with written information furnished
by the Issuer expressly for use therein.
(c) The Underwriter will indemnify and hold harmless the Issuer, the
Partnership, Pittston and the Parent Company, each of their members,
commissioners, directors, officers, officials and employees and each person who
controls any of them within the meaning of Section 15 of the Securities Act (for
purposes of this paragraph (c), an "Indemnified Party") against all losses,
damages or liabilities, joint or several, to which such Indemnified Party may
become subject under any statute or at law or in equity or otherwise, and will
reimburse any such Indemnified Party for any legal or other expenses incurred by
it in connection with defending any actions, insofar as such losses, damages,
liabilities or actions arise out of or are based upon any untrue statement of a
material fact contained in the Official Statement or any amendment or supplement
to the Official Statement or the omission to state in them a material fact
necessary to make the statements in them not misleading, but only with reference
to written information relating to the Underwriter furnished by the Underwriter
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. The Issuer, the Partnership, Pittston and the Parent
Company acknowledge that the statements in the Official Statement under the
heading "UNDERWRITING" constitute the only information furnished in writing by
or on behalf of the Underwriter for inclusion in the Official Statement and the
Underwriter confirm that such statements are correct.
(d) An Indemnified Party (as defined in paragraph (a), (b) or (c) of this
Section 9) will, promptly after receiving notice of the commencement of any
action against such Indemnified Party in respect of which indemnification may be
sought against the Parent Company or the Underwriter, as the case may be (in any
case the "Indemnifying Party"), notify the Indemnifying Party in writing of the
commencement of the action. Failure of the Indemnified Party to give such notice
will reduce the liability of the Indemnifying Party under this indemnity
agreement by the amount of the damages attributable to the failure to give the
notice; but the failure will not relieve the Indemnifying Party from any
liability it may have to such Indemnified Party otherwise than under the
indemnity agreement in this Section. If such action is brought against an
Indemnified Party and such Indemnified Party notifies the Indemnifying Party of
its commencement, the Indemnifying Party may, or if so requested by the
Indemnified Party shall, participate in it or assume its defense, with counsel
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reasonably satisfactory to the Indemnified Party, and after notice from the
Indemnifying Party to the Indemnified Party that it will not be liable to the
Indemnified Party under this Section for any legal or other expenses
subsequently incurred by such Indemnified Party, the Indemnifying Party may
participate at its own expense in the defense of the action. If the Indemnifying
Party does not employ counsel to have charge of the defense or if any
Indemnified Party reasonably concludes that there may be defenses available to
it or them which are different from or in addition to those available to the
Indemnifying Party (in which case the Indemnifying Party will not have the right
to direct the defense of such action on behalf of such Indemnified Party), legal
and other expenses incurred by such Indemnified Party will be paid by the
Indemnifying Party. Any obligation under this Section of an Indemnifying Party
to reimburse an Indemnified Party for expenses includes the obligation to make
advances to the Indemnified Party to cover such expenses in reasonable amounts
and at reasonable periodic intervals not more often than monthly as requested by
the Indemnified Party. An Indemnifying Party shall not be liable for any
settlement of any proceeding affected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, an
Indemnifying Party shall indemnify the Indemnified Party from and against any
loss or liability by reason of such settlement or judgment.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Parent Company on grounds of policy or
otherwise, the Parent Company and the Underwriter shall contribute to the total
losses, claims, damages and liabilities (including legal or other expenses of
investigation or defense) to which they may be subject in such proportion so
that the Underwriter is responsible for the percentage that the underwriting fee
is of the sum of such fee and the purchase price of the Bonds specified in
Section l and the Parent Company is responsible for the balance. However, in no
case will the Underwriter be responsible for any amounts in the aggregate in
excess of the underwriting fee, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Securities Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9(e) each person who
controls either of the Underwriter within the meaning of Section 15 of the
Securities Act will have the same rights to contribution as the Underwriter, and
each person who controls the Parent Company within the meaning of the Securities
Act and each officer and each director of the Parent Company will have the same
rights to contribution as the Parent Company, subject to the foregoing sentence.
Any party entitled to contribution will, promptly after receiving notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made under this paragraph, notify each
party from whom contribution may be sought, but the omission to notify such
party shall not relieve any party from whom contribution may be sought from any
other obligation it may have otherwise than under this paragraph.
(f) No right or remedy granted in this Section 9 is intended to limit a
party's access to the courts to pursue other rights or remedies provided by law
or in equity.
Section 10. Survival of Indemnities, Representations, Warranties, Etc. The
indemnities, covenants, agreements, representations, warranties and other
statements of the Issuer, the Underwriter, the Partnership, Pittston and the
Parent Company, as set forth in this Bond Purchase Agreement or made by any of
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them pursuant to this Bond Purchase Agreement, shall remain in full force and
effect, regardless of any investigation made by or on behalf of the Issuer, the
Underwriter, the Partnership, Pittston, the Parent Company or any of their
officers or directors or any controlling person, and shall survive delivery of
and payment for the Bonds. The obligations of the Partnership under Section 9
hereof shall survive any termination of this Bond Purchase Agreement by the
Underwriter pursuant to its terms.
Section 11. Expenses. The Parent Company shall pay any reasonable expenses
incident to the performance of the obligations hereunder including but not
limited to: (i) the cost of the preparation and printing of the Indenture, the
Loan Agreement, the Parent Company Guaranty, this Bond Purchase Agreement and
the Continuing Disclosure Undertaking, together with a reasonable number of
copies thereof; (ii) the cost of the preparation, printing and delivery of the
Preliminary Official Statement and the Official Statement, together with a
reasonable number of copies thereof; (iii) the cost of the preparation of the
Bonds; (iv) the fees and disbursements of Counsel to the Partnership, Pittston
and the Parent Company and of any other experts or consultants retained by the
Partnership, Pittston or the Parent Company or the Underwriter; (v) the fees and
disbursements of Counsel passing upon certain matters for the Underwriter, of
Counsel to the Issuer and of Bond Counsel; (vi) the fees, if any, for Bond
ratings; (vii) the expenses of the Issuer incurred in connection with the
issuance of the Bonds; and (viii) all registration or filing fees and related
costs and expenses incurred in connection with the qualification of the Bonds
under state security (or "blue sky") laws and the preparation and printing of a
blue sky survey and legal investment memorandum relating to the Bonds. The
Parent Company may pay such expenses from the proceeds of the Bonds to the
extent legally permissible and which will not adversely affect the exclusion
from federal gross income of interest on the Bonds.
Section 12. Representation by Counsel. It is understood by the parties hereto
that, in connection with the transactions described herein, the Issuer will be
represented by Kaufman & Canoles, P.C., that the Partnership will be represented
by McGuireWoods LLP, that Pittston will be represented by in-house counsel, that
the Parent Company will be represented by in-house counsel, and that
McGuireWoods LLP will serve as Bond Counsel and Fulbright & Jaworski L.L.P. will
serve as counsel to the Underwriter.
Section 13. Parent Company Liability for Obligations of Partnership. The Parent
Company acknowledges that it will have sole liability for any breach of the
Partnership's representations and warranties set forth in Section 3(a) of this
Agreement. The Underwriter agrees that in the event of a breach of any
representation and warranty made by the Partnership under this Agreement its
recourse shall be against the Parent Company under Section 9 hereof not against
the Partnership.
Section 14. Miscellaneous. (a) Any notice or other communication to be given to
the Partnership, Pittston, the Parent Company or the Issuer under this Bond
Purchase Agreement shall be deemed given when delivered in person to their
respective addresses set forth on the first page hereof, or when mailed by first
class mail, postage prepaid, and addressed to such addresses, or when
confirmation is received by the sender that any telex, telegram or telecopy to
the Partnership, Pittston, the Parent Company or the Issuer at such address has
been received. Any notice or other communication to be given to the Underwriter
under this Bond Purchase Agreement shall be deemed given when delivered in
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person to the address set forth below, or when mailed by first class mail,
postage prepaid and addressed to such address, or when confirmation is received
by the sender that any telex, telegram or telecopy to the Underwriter at such
address has been received by them, as follows:
Banc of America Securities LLC
Bank of America Plaza Building
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2265
Attention: Municipal Bond Department
Telephone: (404) 607-5585
Telecopy: (404) 607-4400
(b) This Bond Purchase Agreement is made solely for the benefit of the
Partnership, the Issuer and the Underwriter (including the successors or assigns
of the Underwriter) and no other person, including any purchaser of the Bonds,
shall acquire or have any right hereunder or by virtue hereof.
(c) This Bond Purchase Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Virginia.
(d) The captions in this Bond Purchase Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
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(e) This Bond Purchase Agreement shall become effective upon the execution
of the acceptance hereof by the Partnership, Pittston, the Parent Company and
the Issuer.
BANC OF AMERICA SECURITIES LLC
By: /s/ Brian W. Hill
------------------------------------------
Brian W. Hill
Vice President
Accepted and agreed to as of
the date first above written:
DOMINION TERMINAL ASSOCIATES
By________________________________
Charles E. Brinley
Authorized Representative
PITTSTON COAL TERMINAL CORPORATION
By________________________________
James B. Hartough
Vice President and Treasurer
THE BRINK'S COMPANY
By________________________________
James B. Hartough
Vice President--Corporate Finance and Treasurer
PENINSULA PORTS AUTHORITY OF VIRGINIA
By________________________________
Robert Yancey
Chairman
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