EXHIBIT 1
PEABODY ENERGY CORPORATION
$650,000,000
6 7/8% SENIOR NOTES DUE 2013
PURCHASE AGREEMENT
March 14, 2003
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
Wachovia Securities, Inc.
Fleet Securities, Inc.
U.S. Bancorp Piper Jaffray Inc.
PNC Capital Markets, Inc.
BMO Nesbitt Burns Corp.
Credit Lyonnais Securities (USA) Inc.
ABN AMRO Incorporated
As representatives of the Initial Purchasers
c/o Lehman Brothers Inc.
745 Seventh Avenue, 19th Floor
New York, New York 10019
and
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York, 10036
Ladies and Gentlemen:
Peabody Energy Corporation, a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the several Initial Purchasers named
in Schedule 1 hereto (the "INITIAL PURCHASERS") $650,000,000 in aggregate
principal amount of its 6 7/8% Senior Notes due 2013 (the "NOTES") guaranteed
(the "GUARANTEES") by the Company's domestic subsidiaries signatory hereto
(collectively, the "SUBSIDIARY GUARANTORS") pursuant to the terms of an
indenture (the "INDENTURE"), to be dated as of March 21, 2003, among the
Company, the Subsidiary Guarantors and US Bank National Association, as trustee
(the "TRUSTEE").
The Notes will be offered and sold to you pursuant to an
exemption from the registration requirements under the Securities Act of 1933,
as amended (the "SECURITIES ACT"). The Company has prepared a preliminary
offering memorandum, dated March 7, 2003 (as amended or supplemented, the
"PRELIMINARY OFFERING MEMORANDUM"), and will prepare a final offering memorandum
(as amended or supplemented, the "OFFERING MEMORANDUM"), to be dated March 14,
2003, relating to the Company, the Notes and the Guarantees.
Upon original issuance thereof, and until such time as the
same is no longer required under the applicable requirements of the Securities
Act, the Notes (and all securities issued in exchange therefor or in
substitution therefor) shall bear substantially the following legend:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, IN THE ABSENCE OF
SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS NOTE BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (A) THE
DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF
ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WERE THE OWNERS OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) AND (B) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE"),
OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (I) TO THE COMPANY,
(II) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (III) FOR SO LONG AS THE NOTES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (IV) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
(V) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO
EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY, THE TRUSTEE, AND
THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (IV) OR (V) TO REQUIRE THAT AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER
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INFORMATION SATISFACTORY TO THE COMPANY, THE TRUSTEE AND THE REGISTRAR
IS COMPLETED AND DELIVERED BY THE TRANSFEROR. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
You have advised the Company that you will make offers and
sales (the "EXEMPT RESALES") of the Notes purchased hereunder on the terms set
forth in the Offering Memorandum solely to (i) persons whom you reasonably
believe to be "qualified institutional buyers" as defined in Rule 144A under the
Securities Act ("QIBs") and (ii) outside the United States to persons other than
U.S. Persons in offshore transactions meeting the requirements of Regulation S
under the Securities Act ("REGULATION S") (such persons specified in clauses (i)
and (ii) being referred to herein as the "ELIGIBLE PURCHASERS"). As used herein,
the terms "offshore transaction," "United States" and "U.S. person" have the
respective meanings given to them in Regulation S. You will offer the Notes to
Eligible Purchasers initially at a price equal to 98.25% of the principal amount
thereof. Thereafter, the offering price may be changed at any time without
notice.
In connection with the offering of the Notes, the Company and
the Subsidiary Guarantors will enter into a new revolving credit facility in the
amount of $600.0 million and a $450.0 million term loan B facility pursuant to a
credit agreement among the Company, the Subsidiary Guarantors, Wachovia
Securities, Inc., Fleet Securities, Inc. and Lehman Brothers Inc. as Arrangers,
Wachovia Bank, National Association and Lehman Commercial Paper Inc., as the
Syndication Agents, Fleet National Bank, as the Administrative Agent, Morgan
Stanley Senior Funding, Inc., as Documentation Agent, and the other lenders
party thereto, (the "NEW CREDIT FACILITY"). The net proceeds from the sale of
the Notes, along with borrowings under the New Credit Facility, will be used to
repurchase the Company's outstanding 8 7/8% Senior Notes due 2008 and 9 5/8%
Senior Subordinated Notes due 2008 (collectively, the "OLD NOTES"), to repay
substantially all of the indebtedness of the Company's subsidiary, Black Beauty
Coal Company and fees and expenses related to the Transactions (as defined
below), as described in the "Use of Proceeds" section of the Offering
Memorandum. The repurchase of the Old Notes, the repayment of the other
indebtedness, the entering into of the New Credit Facility and the offering of
the Notes as provided in the "Use of Proceeds" section of the Offering
Memorandum are collectively referred to herein as the "TRANSACTIONS."
Holders (including subsequent transferees) of the Notes will
have the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT") among the Company, the Subsidiary Guarantors
and the Initial Purchasers, to be dated as of the Closing Date, in the form of
Exhibit A hereto, for so long as such Notes constitute "TRANSFER RESTRICTED
SECURITIES" (as defined in the Registration Rights Agreement). Pursuant to the
Registration Rights Agreement, the Company and the Subsidiary Guarantors will
agree to file with the Securities and Exchange Commission (the "COMMISSION")
under the circumstances set forth therein, (i) a registration statement under
the Securities Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to a
separate series of the Company's 6 7/8% Senior Notes due
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2013 (the "EXCHANGE NOTES") to be offered in exchange for the Notes (such offer
to exchange being referred to collectively as the "REGISTERED EXCHANGE OFFER")
and (ii) if required by the terms of the Registration Rights Agreement, a shelf
registration statement pursuant to Rule 415 under the Securities Act (the "SHELF
REGISTRATION STATEMENT") relating to the resale by certain holders of the Notes,
and to use their reasonable best efforts to cause such Registration Statements
to be declared effective. This Agreement, the Notes, the Exchange Notes, the
Guarantees, the Exchange Note Guarantees (as defined below), the Indenture and
Registration Rights Agreement are hereinafter referred to collectively as the
"OPERATIVE DOCUMENTS." This is to confirm the agreements concerning the purchase
of the Notes from the Company by the Initial Purchasers.
SECTION 1. Representations, Warranties and Agreements
of the Company and the Subsidiary Guarantors. The Company and the Subsidiary
Guarantors, jointly and severally, represent, warrant and agree that:
(a) The Preliminary Offering Memorandum and the Offering
Memorandum have been or will be prepared by the Company and Subsidiary
Guarantors for use by the Initial Purchasers in connection with the
Exempt Resales. No order or decree preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or any
order asserting that the transactions contemplated by this Agreement
are subject to the registration requirements of the Securities Act has
been issued and no proceeding for that purpose has commenced or is
pending or, to the knowledge of the Company and Subsidiary Guarantors,
is threatened.
(b) The Preliminary Offering Memorandum and the Offering
Memorandum as of their respective dates did not, and the Offering
Memorandum as of the Closing Date will not, contain an untrue statement
of a material fact or omit to state a material fact necessary, in order
to make the statements made therein, in the light of the circumstances
under which they were made, not misleading, except that this
representation and warranty does not apply to statements in or
omissions from the Preliminary Offering Memorandum and the Offering
Memorandum made in reliance upon and in conformity with information
relating to the Initial Purchasers furnished to the Company in writing
by or on behalf of the Initial Purchasers expressly for use therein, as
specifically identified in Section 8(e) hereof.
(c) The documents incorporated by reference in the
Offering Memorandum, when they were filed with the Commission conformed
in all material respects to the requirements of the Exchange Act, and
the Rules and Regulations, and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein not misleading in light of the
circumstances in which they were made; and any further documents so
filed and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations thereunder, and will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein not misleading in light of the circumstances in
which they were made.
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(d) The Company and each of its subsidiaries (as defined
in Section 15) have been duly incorporated or organized, as the case
may be, and are validly existing as their respective business entities
and in good standing under the laws of their respective jurisdictions
of incorporation or organization, as the case may be, are duly
qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority necessary
to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to so
qualify to be in good standing would not reasonably be expected to have
a material adverse effect on the financial condition, business,
properties or results of operations of the Company and its subsidiaries
taken as a whole (a "MATERIAL ADVERSE EFFECT"); and none of the
subsidiaries of the Company other than Black Beauty Coal Company,
Caballo Coal Company, Coal Properties Corp., Gold Fields Mining
Corporation, Peabody Coal Company, Peabody Development Company, Peabody
Holding Company, Inc., Peabody Natural Resources Company, Peabody
Western Coal Company and Powder River Coal Company is a "significant
subsidiary," as such term is defined in Rule 405 under the Securities
Act.
(e) The Company has an authorized capitalization as set
forth in the Preliminary Offering Memorandum, and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and conforms
in all material respects to the description thereof contained in the
Offering Memorandum; and all of the issued shares of capital stock or
membership interests, as the case may be, of each wholly-owned
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and (except for directors'
qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims, other
than liens, encumbrances, equities or claims under the Company's
existing credit facility (which will be assigned to the lenders under
the New Credit Facility on the Closing Date) and contemplated under the
New Credit Facility or otherwise described in the Offering Memorandum,
and none of such shares of capital stock or membership interests, as
the case may be, were issued in violation of a preemptive or other
similar rights arising by operation of law, under the charter and
by-laws of the Company or under any agreement to which the Company or
any Subsidiary Guarantor is a party or otherwise.
(f) Each of the Company and the Subsidiary Guarantors has
all requisite power and authority to execute, deliver and perform its
respective obligations under this Agreement and each of the other
Operative Documents to which it is a party.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors.
(h) The Registration Rights Agreement has been duly
authorized by the Company and each of the Subsidiary Guarantors, and
when duly executed by the proper officers of the Company and each of
the Subsidiary Guarantors (assuming due execution and delivery by the
Initial Purchasers) and delivered by the Company and each of the
Subsidiary Guarantors, will constitute a legal, valid and binding
agreement of the
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Company and each of the Subsidiary Guarantors, enforceable against the
Company and each of the Subsidiary Guarantors in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights and remedies generally, and subject,
as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or
in equity), and except that rights to indemnification and contribution
thereunder may be limited by federal or state securities laws or public
policy relating thereto.
(i) The Indenture has been duly authorized by the Company
and each of the Subsidiary Guarantors, and when duly executed by the
proper officers of the Company and each of the Subsidiary Guarantors
(assuming due execution and delivery by the Trustee) and delivered by
the Company and each of the Subsidiary Guarantors, will constitute a
legal, valid and binding agreement of the Company and each of the
Subsidiary Guarantors enforceable against the Company and each of the
Subsidiary Guarantors in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles
of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
No qualification of the Indenture under the Trust Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT"), is required in connection
with the offer and sale of the Notes contemplated hereby or in
connection with the Exempt Resales. Upon the effectiveness of the
Exchange Offer Registration Statement, the Indenture will conform in
all material respects to the requirements of the Trust Indenture Act
and the rules and regulations thereunder applicable to an indenture
that is qualified thereunder.
(j) The Notes have been duly authorized by the Company
and when duly issued by the Company in accordance with the terms of the
Indenture and, assuming due authentication of the Notes by the Trustee,
when delivered to the Initial Purchasers against payment therefor in
accordance with the terms hereof, will have been validly issued and
delivered, and will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles
of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
(k) The Guarantees have been duly authorized by each of
the Subsidiary Guarantors and when duly endorsed on the Notes in
accordance with the terms of the Indenture and, assuming due
authentication of the Notes by the Trustee, upon delivery to the
Initial Purchasers against payment therefor in accordance with the
terms hereof will constitute legal, valid and binding obligations of
each of the Subsidiary Guarantors entitled to the benefits of the
Indenture and enforceable against each of the Subsidiary
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Guarantors in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(l) The Exchange Notes have been duly authorized by the
Company and if and when duly issued by the Company in accordance with
the terms of the Indenture and, assuming due authentication of the
Exchange Notes by the Trustee, if and when delivered in accordance with
the Registered Exchange Offer contemplated by the Registration Rights
Agreement, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles
of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
(m) The guarantees of the Exchange Notes (the "EXCHANGE
NOTE GUARANTEES") have been duly authorized by each of the Subsidiary
Guarantors and if and when duly endorsed on the Exchange Notes in
accordance with the terms of the Indenture and, assuming due
authentication of the Exchange Notes by the Trustee, if and when the
Exchange Notes are delivered in accordance with the Registered Exchange
Offer contemplated by the Registration Rights Agreement, will
constitute legal, valid and binding obligations of each of the
Subsidiary Guarantors entitled to the benefits of the Indenture and
enforceable against each of the Subsidiary Guarantors in accordance
with their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at
law or in equity).
(n) The Company and the Subsidiary Guarantors have all
requisite corporate power and authority to enter into (A) the New
Credit Facility and (B) any and all other agreements and instruments
ancillary to or entered into in connection with the transaction
contemplated by the New Credit Facility (items (A) and (B) are referred
to collectively as the "CREDIT DOCUMENTS").
(o) Each of the New Credit Facility and the other Credit
Documents have been duly and validly authorized, executed and delivered
by the Company and the Subsidiary Guarantors and (assuming due
authorization, execution and delivery by the other parties thereto)
constitutes a legal, valid and binding agreement of each of the Company
and the Subsidiary Guarantors, enforceable against the Company and each
of the Subsidiary Guarantors in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws
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relating to or affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at
law or in equity).
(p) The execution, delivery and performance of this
Agreement, the other Operative Documents and the New Credit Facility
and the other Credit Documents by the Company and the Subsidiary
Guarantors and the consummation of the Transactions will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the
Certificate of Incorporation or by-laws of the Company or any of its
subsidiaries or (iii) result in the violation of any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any
of their properties or assets, except in the case of clauses (i) and
(iii), such conflicts, breaches or violations that in the aggregate
would not reasonably be expected to have a Material Adverse Effect.
Except as may be required in connection with (1) the registration of
the Notes, the Exchange Notes, the Guarantees and/or the Exchange Note
Guarantees under the Securities Act in accordance with the Registration
Rights Agreement, (2) qualification of the Indenture under the Trust
Indenture Act, (3) compliance with the securities or Blue Sky laws of
various jurisdictions and (4) filings required by the terms of the
Credit Documents, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of this
Agreement, any of the other Operative Documents, the New Credit
Facility and the other Credit Documents by the Company and the
Subsidiary Guarantors and the consummation of the Transactions.
(q) The financial statements (including the related notes
and supporting schedules) included or incorporated by reference in the
Offering Memorandum comply as to form in all material respects with the
requirements of Regulation S-X under the Securities Act and present
fairly the financial condition and results of operations and cash flows
of the entities purported to be shown thereby, at the dates and for the
periods indicated, and have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The other financial data, selected pro
forma ratios and operating data included in the Offering Memorandum is
presented fairly and has been prepared on a basis consistent with such
financial statements and the books and records of the Company.
(r) Except as set forth in the Offering Memorandum, there
are no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject which,
if determined adversely to the Company or any of its subsidiaries,
would be reasonably likely to have a Material Adverse Effect; and to
the Company's
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knowledge, no such proceedings are threatened by governmental
authorities or threatened by others.
(s) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Offering Memorandum, any material loss or interference
with its business that has had a Material Adverse Effect, whether from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Offering Memorandum; and, since such date, there has not been any
material change in the capital stock or material increase in the
long-term debt of the Company or any of its subsidiaries or any change,
in or affecting the general affairs, management, consolidated financial
position, stockholders' equity, results of operations or business of
the Company and its subsidiaries that has had or could reasonably be
expected to have a Material Adverse Effect, other than as set forth or
contemplated in the Offering Memorandum.
(t) The Company is subject to and in full compliance with
the reporting requirements of Section 13 or 15(d) of the Exchange Act.
(u) The Company and each Subsidiary Guarantor (i) makes
and keeps accurate books and records and (ii) maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements in conformity with generally
accepted accounting principles and to maintain accountability for its
assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the recorded accountability for its
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(v) Ernst & Young LLP, who have certified certain
financial statements of the Company, whose report appears in the
Offering Memorandum and who have delivered the initial letter referred
to in Section 7(j) hereof, are and have been, independent public
accountants as required by the Securities Act and the rules and
regulations promulgated thereunder during the periods covered by the
financial statements on which they reported.
(w) The market-related and industry data included in the
Offering Memorandum are based upon estimates by the Company on or
derived from sources that the Company and the subsidiaries believe to
be reliable and accurate in all material respects.
(x) The Company has such permits, licenses, franchises,
certificates, consents, orders and other approvals or authorizations of
any governmental or regulatory authority ("PERMITS"), including,
without limitation, any permits or approvals required by the United
States Environmental Protection Agency, the United States Office of
Surface Mining Reclamation and Enforcement and corresponding state
agencies, as are necessary under applicable law to own its properties
and to conduct its businesses in the manner described in the Offering
Memorandum, except to the extent that the failure to have such
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Permits would not reasonably be expected to have a Material Adverse
Effect. The Company has fulfilled and performed in all material
respects, all its material obligations with respect to the Permits,
and, to the best knowledge of the Company, no event has occurred that
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such Permit, subject in each case to such
qualification as may be set forth in the Offering Memorandum and except
to the extent that any such revocation or termination would not
reasonably be expected to have a Material Adverse Effect.
(y) To the knowledge of the Company, the Company and each
of its subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties and
as is customary for companies engaged in similar businesses in similar
industries.
(z) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company, is imminent, which would
reasonably be expected to have a Material Adverse Effect, except as
disclosed in the Offering Memorandum.
(aa) Except as would not reasonably be expected to have a
Material Adverse Effect, the Company is in compliance in all material
respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"REPORTABLE EVENT" (as defined in ERISA) has occurred with respect to
any "PENSION PLAN" (as defined in ERISA) for which the Company would
have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any "PENSION PLAN" or (ii) Sections 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "CODE"); and
each "PENSION PLAN" for which the Company would have any liability that
is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification, except as would not reasonably be expected to have a
Material Adverse Effect.
(bb) Each of the Company, Black Beauty Coal Company and
the Subsidiary Guarantors has filed (or obtained extensions in filing)
all federal, state and local income and franchise tax returns required
to be filed through the date hereof (other than those the nonfiling of
which would not be reasonably likely to have a Material Adverse Effect)
and has paid all taxes due thereon, other than those being contested in
good faith and for which reserves have been provided in accordance with
GAAP, those currently payable without penalty or interest or the
nonpayment of which would not be reasonably likely to have a Material
Adverse Effect. No tax deficiency has been determined adversely to the
Company, Black Beauty Coal Company and the Subsidiary Guarantors that
has had (nor does the Company have any knowledge of any tax deficiency
which, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to have) a Material Adverse
Effect.
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(cc) Neither the Company, Black Beauty Coal Company nor
the Subsidiary Guarantors (i) is in violation of its organizational
documents, (ii) is in default, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is
subject, or (iii) is in violation of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets
may be subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business, except, in the cases of clauses (ii) and (iii), such
defaults, events, violations or failures that in the aggregate would
not reasonably be expected to have a Material Adverse Effect.
(dd) Except as set forth in the Offering Memorandum, there
has been no storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, medical wastes,
hazardous wastes or hazardous substances by the Company or any of its
subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or its subsidiaries in
violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or that would require remedial action under
any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action that
would not have, or would not be reasonably likely to have, singularly
or in the aggregate with all such violations and remedial actions, a
Material Adverse Effect, except as set forth in, or specifically
contemplated by, the Offering Memorandum; there has been no material
spill, discharge, leak, emission, injection, escape, dumping or release
of any kind onto such property or into the environment surrounding such
property of any toxic wastes, medical wastes, solid wastes, hazardous
wastes or hazardous substances due to or caused by the Company or any
of its subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release that would not
have or would not be reasonably likely to have, singularly or in the
aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a Material Adverse Effect;
and the terms "HAZARDOUS WASTES," "TOXIC WASTES," "HAZARDOUS
SUBSTANCES" and "MEDICAL WASTES" shall have the meanings specified in
any applicable local, state, federal and foreign laws or regulations
with respect to environmental protection.
(ee) The Company and each of its subsidiaries have good
and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects, except such as
are described in the Offering Memorandum or that would not reasonably
be expected to have a Material Adverse Effect; and all real property
held under lease by the Company and its subsidiaries that is material
to the Company and its subsidiaries, taken as a whole, is held by them
under valid, subsisting and enforceable leases, with such exceptions as
are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its
subsidiaries.
11
(ff) Immediately after the consummation of the
Transactions, the fair value and present fair saleable value of the
assets of the Company and each of its subsidiaries (each on a
consolidated basis) will exceed the sum of its stated liabilities and
identified contingent liabilities; none of the Company nor any of its
subsidiaries (each on a consolidated basis) is, nor will any of the
Company or any of its subsidiaries (each on a consolidated basis) be,
after giving effect to the execution, delivery and performance of this
Agreement and the other Operative Documents and the New Credit Facility
and the other Credit Documents and the consummation of the
Transactions, (A) left with unreasonably small capital with which to
carry on its business as it is proposed to be conducted, (B) unable to
pay its debts (contingent or otherwise) as they mature or (C) otherwise
insolvent.
(gg) Neither the Company nor any subsidiary is, or, as of
the Closing Date (as defined below) after giving effect to the
Transactions and the application of the proceeds as described in the
Offering Memorandum under the section entitled "Use of Proceeds,"
neither the Company nor any subsidiary will be, an "investment company"
within the meaning of such term under the Investment Company Act of
1940, as amended (the "INVESTMENT COMPANY ACT").
(hh) Neither the Company nor any other affiliate (as
defined in Rule 501(b) of Regulation D under the Securities Act
("REGULATION D")) of the Company has directly, or through any agent
(provided that no representation is made as to the Initial Purchasers
or any person acting on their behalf), (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Securities Act) which is or could be
integrated with the offering and sale of the Notes and the Guarantees
in a manner that would require the registration of the Notes and the
Guarantees under the Securities Act or (ii) engaged in any form of
general solicitation or general advertising (within the meaning of
Regulation D, including, but not limited to, advertisements, articles,
notices or other communications published in any newspaper, magazine,
or similar medium or broadcast over television or radio, or any seminar
or meeting whose attendees have been invited by any general
solicitation or general advertising) in connection with the offering of
the Notes and the Guarantees, provided, however, that no representation
is made as to the Initial Purchasers or any person acting on their
behalf. Neither the Company nor any Subsidiary Guarantor has offered,
sold or issued any securities, or securities that are convertible into
other securities, with terms that are substantially similar to the
Notes and the Guarantees during the six-month period preceding the date
of the Offering Memorandum, including any sales pursuant to Section
4(2) of the Securities Act or Regulation D or Regulation S under the
Securities Act.
(ii) Neither the Company nor any Subsidiary Guarantor has
distributed and, prior to the later to occur of the Closing Date and
completion of the distribution of the Notes and the Guarantees, will
not distribute any offering material in connection with the offering
and sale of the Notes other than the Preliminary Offering Memorandum
and the Offering Memorandum and the Company's press release issued on
March 7, 2003 pursuant to Rule 135(c) of the Securities Act.
12
(jj) When issued and delivered pursuant to this Agreement,
the Notes will not be of the same class (within the meaning of Rule
144A under the Securities Act) as securities of the Company that are
listed on a national securities exchange registered under Section 6 of
the Exchange Act or that are quoted in a U.S. automated inter-dealer
quotation system.
(kk) Assuming (i) that your representations and warranties
in Section 2 of this Agreement are true, (ii) compliance by you with
the covenants set forth herein and (iii) that each of the Eligible
Purchasers is a QIB or a person who acquires the Notes and the
Guarantees outside the United States in an "offshore transaction" and
is not a "U.S. person" (within the meaning of Rule 904 of Regulation
S), it is not necessary in connection with the purchase of the Notes
and the Guarantees and the offer and initial resale of the Notes and
the Guarantees by you in the manner contemplated by this Agreement and
the Offering Memorandum, to register the Notes and the Guarantees under
the Securities Act or to qualify the Indenture under the Trust
Indenture Act.
(ll) None of the Company, any Subsidiary Guarantor or any
of their affiliates (other than Lehman Brothers Inc.) or any person
acting on their behalf has engaged or will engage during the applicable
restricted period in any directed selling efforts within the meaning of
Rule 902(b) of Regulation S with respect to the Notes, and the Company,
the Subsidiary Guarantors and their other affiliates and all persons
acting on their behalf have complied with and will comply with the
offering restrictions requirements of Regulation S in connection with
the offering of the Notes outside of the United States, provided,
however, no representation is made as to the Initial Purchasers or any
person acting on their behalf. The sales of the Notes pursuant to
Regulation S are not part of a plan or scheme to evade the registration
provision of the Securities Act.
(mm) Neither the Company nor any of its subsidiaries has
taken or will take, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might reasonably
be expected to constitute, the stabilization or manipulation of the
price of the Notes and the Guarantees to facilitate the sale or resale
of the Notes and the Guarantees.
(nn) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act (i) has imposed (or has informed the Company
that it is considering imposing) any condition (financial or otherwise)
on the Company's retaining any rating assigned as of the date hereof to
the Company or any of their respective securities or (ii) has indicated
to the Company that it is considering (A) the downgrading, suspension
or withdrawal of, or any review for a possible change that does not
indicate the direction of the possible change in, any rating so
assigned or (B) any negative change in the outlook for any rating of
the Company.
(oo) The Company has not taken, and will not take, any
action that might cause this Agreement or the issuance or sale of the
Notes and the Guarantees to violate Regulation T (12 C.F.R. Part 220),
Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224)
of the Board of Governors of the Federal Reserve System.
13
(pp) The Company and each Subsidiary Guarantor understands
that the Initial Purchasers and, for purposes of the opinions to be
delivered to the Initial Purchasers pursuant to Section 7 hereof,
counsel to the Company and counsel to the Initial Purchasers will rely
upon the accuracy and truth of the foregoing representations and hereby
consents to such reliance.
(qq) Upon the earlier to occur of (1) the Company's
acquisition of the 18.3% minority interest in Black Beauty Coal Company
and Black Beauty Equipment Company and (2) one year from the date of
the Indenture, the Company will cause Black Beauty Coal Company and its
subsidiaries that are not Specified Subsidiaries (as defined in the
Indenture) and Black Beauty Equipment Company and its subsidiaries
(collectively, the "BLACK BEAUTY ENTITIES") to execute a supplemental
indenture, pursuant to which the Black Beauty Entities will become
Subsidiary Guarantors under the Indenture
SECTION 2. Representations, Warranties and Agreements
of the Initial Purchasers. Each of the Initial Purchasers, severally and not
jointly, represents and warrants to, and agrees with, each of the Company and
the Subsidiary Guarantors, that:
(a) Such Initial Purchaser is a QIB with such knowledge
and experience in financial and business matters as are necessary in
order to evaluate the merits and risks of an investment in the Notes
and the Guarantees.
(b) Such Initial Purchaser (i) is not acquiring the Notes
and the Guarantees with a view to any distribution thereof or with any
present intention of offering or selling any of the Notes and the
Guarantees in a transaction that would violate the Securities Act or
any state securities laws or any other applicable jurisdiction; (ii) in
connection with the Exempt Resales, will solicit offers to buy the
Notes and the Guarantees only from, and will offer to sell the Notes
and the Guarantees only to, the Eligible Purchasers in accordance with
this Agreement and on the terms contemplated by the Offering
Memorandum; and (iii) will not offer or sell the Notes and the
Guarantees, nor has it offered or sold the Notes and the Guarantees by,
or otherwise engaged in, any form of general solicitation in connection
with the offering of the Notes and the Guarantees.
(c) The Notes and the Guarantees have not been and will
not be registered under the Securities Act and may not be offered or
sold within the United States or to, or for the account or benefit of,
U.S. persons except in accordance with Regulation S under the
Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act. Such Initial Purchaser represents
that it has not offered, sold or delivered the Notes and the
Guarantees, and will not offer, sell or deliver the Notes and the
Guarantees (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the
offering of the Notes and the Guarantees and the Closing Date (such
period, the "DISTRIBUTION COMPLIANCE PERIOD"), within the United States
or to, or for the account or benefit of U.S. persons, except in
accordance with Rule 144A under the Securities Act. Accordingly, such
Initial Purchaser represents and agrees that neither it, its affiliates
nor any persons acting on its behalf have engaged or will engage in any
directed selling efforts within the meaning of Rule 902(c) of
Regulation S with respect to the Notes and the Guarantees, and its
affiliates and all persons acting on
14
its behalf have complied and will comply with the offering restrictions
requirements of Regulation S.
(d) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Notes and Guarantees (other than a sale
pursuant to Rule 144A), it will have sent to each distributor, dealer
or person receiving a selling concession, fee or other remuneration
that purchases Notes and Guarantees from them during the Distribution
Compliance Period a confirmation or notice substantially to the
following effect:
"The Notes covered hereby have not been registered under the
Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering or the closing
date, except in either case in accordance with Regulation S
(or Rule 144A if available) under the Securities Act, and in
connection with any subsequent sale by you of the Notes
covered hereby in reliance on Regulation S during the period
referred to above to any distributor, dealer or person
receiving a selling concession, fee or other remuneration, you
must deliver a notice substantially to the foregoing effect.
Terms used above have the meanings assigned to them in
Regulation S."
(e) All offers and sales of the Notes and the Guarantees
by such Initial Purchaser pursuant to Regulation S are and will be
"offshore transactions" within the meaning of Regulation S and are not
and will not be part of a plan or scheme to evade the registration
provisions of the Securities Act.
(f) Such Initial Purchaser understands that the Company
and, for purposes of the opinions to be delivered to you pursuant to
Section 7 hereof, counsel to the Company and counsel to the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
The terms used in this Section 2 have the meanings assigned to
them in Regulation S and are used herein as so defined.
SECTION 3. Purchase of the Notes and the Guarantees by
the Initial Purchasers. On the basis of the representations and warranties
contained in, and subject to the terms and conditions of, this Agreement, the
Company agrees to sell the Notes (and cause the Subsidiary Guarantors to issue
the Guarantees) to the several Initial Purchasers and each of the Initial
Purchasers, severally and not jointly, agrees to purchase the amount of Notes
set opposite that Initial Purchaser's name in Schedule 1 hereto. Each Initial
Purchaser will purchase such aggregate principal amount of Notes at an aggregate
purchase price equal to 98.25% of the principal amount thereof (the "PURCHASE
PRICE").
The Company shall not be obligated to deliver any of the Notes
to be delivered on the Closing Date (as defined below), except upon payment for
all the Notes and the Guarantees to be purchased on the Closing Date as provided
herein.
15
SECTION 4. Delivery of and Payment for the Notes and
the Guarantees.
(a) Delivery of and payment for the Notes and the
Guarantees shall be made at the offices of Weil, Gotshal & Manges LLP,
767 Fifth Avenue, New York, New York 10153, at 9:00 A.M., New York City
time, on the fifth full business day following the date of this
Agreement or at such other date or place as shall be determined by
agreement between Lehman Brothers and the Company. This date and time
are sometimes referred to as the "CLOSING DATE."
(b) On the Closing Date, one or more Notes in definitive
form, registered in the name of Cede & Co., as nominee of The
Depository Trust Company ("DTC"), having an aggregate principal amount
corresponding to the aggregate principal amount of Notes sold pursuant
to Exempt Resales (collectively, the "GLOBAL NOTES"), shall be
delivered by the Company to the Initial Purchasers against payment by
the Initial Purchasers of the purchase price thereof by wire transfer
of immediately available funds as the Company may direct by written
notice delivered to you no later than one business day prior to the
Closing Date. The Global Notes in definitive form shall be made
available to the Initial Purchasers for inspection not later than 2:00
p.m. on the business day prior to the Closing Date.
SECTION 5. Further Agreements of the Company. The
Company agrees:
(a) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) of the issuance by the Commission
or any state securities commission of any stop order suspending the
qualification or exemption from qualification of the Notes and the
Guarantees for offering or sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose by the Commission or
any state securities commission or other regulatory authority, and (ii)
the happening of any event that makes any statement of a material fact
made in the Preliminary Offering Memorandum or the Offering Memorandum
untrue or which requires the making of any additions to or changes in
the Preliminary Offering Memorandum or Offering Memorandum in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. The Company shall use all
reasonable efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of the Notes and the
Guarantees under any state securities or Blue Sky laws and, if at any
time any state securities commission shall issue any stop order
suspending the qualification or exemption of the Notes and the
Guarantees under any state securities or Blue Sky laws, the Company
shall use all reasonable efforts to obtain the withdrawal or lifting of
such order at the earliest possible time.
(b) To furnish to you without charge, as many copies of
the Preliminary Offering Memorandum and the Offering Memorandum, and
any amendments or supplements thereto, as you may reasonably request.
The Company consents to the use of the Preliminary Offering Memorandum
and the Offering Memorandum, and any amendments and supplements thereto
required pursuant to this Agreement, by you in connection with the
Exempt Resales that are in compliance with this Agreement.
16
(c) Not to amend or supplement the Offering Memorandum
prior to the Closing Date or during the period referred to in (d) below
unless you shall previously have been advised of, and shall not have
reasonably objected to, such amendment or supplement within a
reasonable time, but in any event not longer than two business days
after being furnished a copy of such amendment or supplement. The
Company shall promptly prepare, upon any reasonable request by you, any
amendment or supplement to the Offering Memorandum that may be
necessary or advisable, in the Company's opinion, in connection with
Exempt Resales.
(d) If, in connection with any Exempt Resales or market
making transactions after the date of this Agreement and prior to the
consummation of the Registered Exchange Offer, any event shall occur
that, in the judgment of the Company or in your judgment or the
judgment of counsel to you, makes any statement of a material fact in
the Offering Memorandum untrue or that requires the making of any
additions to or changes in the Offering Memorandum in order to make the
statements in the Offering Memorandum, in the light of the
circumstances at the time that the Offering Memorandum is delivered to
prospective Eligible Purchasers, not misleading, or if it is necessary
to amend or supplement the Offering Memorandum to comply with
applicable law, the Company will promptly notify you of such event and
prepare an appropriate amendment or supplement to the Offering
Memorandum so that, at the time that the Offering Memorandum is
delivered to prospective Eligible Purchasers, (i) the statements in the
Offering Memorandum as amended or supplemented, in the light of the
circumstances under which they were made, will not be misleading and
(ii) the Offering Memorandum will comply with applicable law.
(e) Promptly from time to time to take such action as you
may reasonably request to qualify the Notes and the Guarantees for
offering and sale under the state securities or Blue Sky laws of such
jurisdictions as you may request (provided, however, that the Company
shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not now so qualified or to take any action
that would subject it to general consent to service of process in any
jurisdiction in which it is not now so subject or subject itself to
taxation in excess of any nominal amount in any such jurisdiction where
it is not then so subject) and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Notes
and the Guarantees.
(f) To use its reasonable best efforts to do and perform
all things required to be done and performed under this Agreement by it
prior to or after the Closing Date and to satisfy all conditions
precedent on its part to the delivery of the Notes and the Guarantees.
(g) Except as contemplated in the Registration Rights
Agreement, not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the
Securities Act) that would be integrated with the sale of the Notes and
the Guarantees in a manner that would require the registration under
the Securities Act of the sale to you or the Eligible Purchasers of the
Notes and the Guarantees.
17
(h) For so long as any Notes remain outstanding and
during any period in which the Company is not subject to Section 13 or
15(d) of the Exchange Act, to make available to any registered holder
or beneficial owner of Notes in connection with any sale thereof and
any prospective purchaser of Notes from such registered holder or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act.
(i) To use its reasonable best efforts to cause the Notes
to be eligible for trading in The PORTAL(SM) Market ("PORTAL"), a
subsidiary of The Nasdaq Stock Market, Inc., and to permit the Notes to
be eligible for clearance and settlement through DTC.
(j) To apply the net proceeds from the sale of the Notes
as set forth in the Offering Memorandum under the section entitled "Use
of Proceeds."
(k) For the period that is two years after the Closing
Date to take such steps as shall be necessary to ensure that neither
the Company nor any subsidiary of the Company shall become an
"investment company" within the meaning of such term under the
Investment Company Act and the rules and regulations of the Commission
thereunder.
(l) Except for borrowings under the New Credit Facility,
for a period of 90 days from the date of the Offering Memorandum, not
to, directly or indirectly, sell, contract to sell, grant any option to
purchase, issue any instrument convertible into or exchangeable for, or
otherwise transfer or dispose of, any debt securities of the Company or
any Subsidiary Guarantor in a public or private offering for cash
having a maturity of more than one year from the date of issue of such
securities, except (i) for the Exchange Notes and the Exchange Note
Guarantees in connection with the Exchange Offer or (ii) with the prior
consent of the Initial Purchasers, which consent shall not be
unreasonably withheld.
SECTION 6. Expenses. The Company agrees that, whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement becomes effective or is terminated, to pay all costs, expenses, fees
and taxes incident to and in connection with: (i) the preparation, printing,
filing and distribution of the Preliminary Offering Memorandum and the Offering
Memorandum (including, without limitation, financial statements) and all
amendments and supplements thereto (but not, however, legal fees and expenses of
your counsel incurred in connection therewith), (ii) the preparation, printing
(including, without limitation, word processing and duplication costs) and
delivery of this Agreement, the Indenture, all Blue Sky Memoranda and all other
agreements, memoranda, correspondence and other documents printed and delivered
in connection herewith and with the Exempt Resales (but not, however, legal fees
and expenses of your counsel incurred in connection with any of the foregoing
other than reasonable fees of such counsel plus reasonable disbursements
incurred in connection with the preparation, printing and delivery of such Blue
Sky Memoranda), (iii) the issuance and delivery by the Company and the
Subsidiary Guarantors of the Notes and the Guarantees, (iv) the qualification of
the Notes for offer and sale under the securities or Blue Sky laws of the
several states (including, without limitation, the reasonable fees and
disbursements of your counsel relating to such registration or qualification),
(v) furnishing such copies of the Preliminary Offering Memorandum and the
Offering
18
Memorandum, and all amendments and supplements thereto, as may be reasonably
requested for use in connection with the Exempt Resales, (vi) the preparation of
certificates for the Notes (including, without limitation, printing and
engraving thereof), (vii) the fees, disbursements and expenses of the Company's
counsel and accountants, (viii) all expenses and listing fees in connection with
the application for quotation of the Notes in PORTAL, (ix) the costs and
expenses of the Company relating to investor presentations on any road show
undertaken in connection with the offering of the Notes, including without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show; (x) all fees and expenses (including fees and expenses of counsel) of the
Company in connection with approval of the Notes by DTC for "book-entry"
transfer and (xi) the performance by the Company and the Subsidiary Guarantors
of its other obligations under this Agreement.
SECTION 7. Conditions of Initial Purchasers'
Obligations. The respective obligations of the Initial Purchasers hereunder are
subject to the accuracy, when made and on the Closing Date, of the
representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions.
(a) The Offering Memorandum shall have been printed and
copies distributed to you not later than 9:00 A.M., New York City time,
on March 17, 2003, or at such later date and time as you may approve in
writing, and no stop order suspending the qualification or exemption
from qualification of the Notes in any jurisdiction shall have been
issued and no proceeding for that purpose shall have been commenced or
shall be pending or threatened.
(b) No Initial Purchaser shall have discovered and
disclosed to the Company on or prior to such Closing Date that the
Offering Memorandum or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of Weil, Gotshal &
Manges LLP, counsel for the Initial Purchasers, is material or omits to
state a fact which, in the opinion of such counsel, is material or is
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
other Operative Documents, the Credit Documents, the Offering
Memorandum, and all other legal matters relating to this Agreement and
the Transactions shall be reasonably satisfactory in all material
respects to counsel for the Initial Purchasers, and the Company shall
have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(d) Simpson Thacher & Bartlett shall have furnished to
the Initial Purchasers its written opinion, as counsel to the Company
and the Subsidiary Guarantors, addressed to the Initial Purchasers and
dated as of the Closing Date, in form and substance
19
reasonably satisfactory to the Initial Purchasers and its counsel,
substantially in the form attached hereto as Exhibit B.
(e) Counsel for the Subsidiary Guarantors that are
incorporated or organized, as the case may be, in the States of
Illinois, Indiana, Kentucky and West Virginia shall have furnished to
the Initial Purchasers its written opinion, as counsel to the
Subsidiary Guarantors, addressed to the Initial Purchasers and dated as
of the Closing Date, in form and substance reasonably satisfactory to
the Initial Purchasers and its counsel, substantially in the form
attached hereto as Exhibit C.
(f) The Initial Purchasers shall have received from Weil,
Gotshal & Manges LLP, counsel for the Initial Purchasers, such opinion
or opinions, dated as of the Closing Date, with respect to the issuance
and sale of the Notes and the Guarantees, the Offering Memorandum and
other related matters as the Initial Purchasers may reasonably require,
and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon
such matters.
(g) Each of the Company, the Subsidiary Guarantors and
the Trustee shall have entered into the Indenture and the Initial
Purchasers shall have received counterparts, conformed as executed,
thereof.
(h) Each of the Company, the Subsidiary Guarantors and
the Initial Purchasers shall have entered into the Registration Rights
Agreement and the Initial Purchasers shall have received counterparts,
conformed as executed, thereof.
(i) The Notes shall have been approved for trading in
PORTAL and shall be eligible for clearance and settlement through The
Depository Trust Company.
(j) At the time of execution of this Agreement, the
Initial Purchasers shall have received from Ernst & Young LLP, a
letter, in form and substance satisfactory to the Initial Purchasers,
addressed to the Initial Purchasers and dated the date hereof (i)
confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information
is given in the Offering Memorandum, as of a date not more than five
days prior to the date hereof), the conclusions and findings of such
firm with respect to the financial information and other matters
ordinarily covered by accountants' "comfort letters" to initial
purchasers.
(k) With respect to the letter of Ernst & Young LLP,
referred to in the preceding paragraph and delivered to the Initial
Purchasers concurrently with the execution of this Agreement (the
"INITIAL LETTER"), the Initial Purchasers shall have received a letter
(the "BRING-DOWN LETTER") of such accountants, addressed to the Initial
Purchasers and dated as of the Closing Date (i) confirming that they
are independent public accountants within the meaning of the Securities
Act and are in compliance with
20
the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective dates as
of which specified financial information is given in the Offering
Memorandum, as of a date not more than five days prior to the date of
the bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by the
initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(l) On or before the Closing Date, each of the Company
and the Subsidiary Guarantors shall have entered into the Credit
Documents, as applicable, and the Initial Purchasers shall have
received counterparts, conformed as executed, thereof. There shall not
exist at and as of the Closing Date any conditions that would
constitute a default (or an event that with notice or the lapse of
time, or both, would constitute a default), after giving effect to the
issuance of the Notes and Guarantees, under the New Credit Facility and
the commitments under the Existing Credit Facility have been
terminated.
(m) The Initial Purchasers shall have received (i) a
certificate from the Company, dated the Closing Date, signed by its
Chairman of the Board or President and its Chief Financial Officer or
Treasurer and (ii) a certificate from each Subsidiary Guarantor, dated
as of the Closing Date, signed by an officer thereof stating, as
applicable, that:
(A) The representations and warranties of the
Company and the Subsidiary Guarantors, as applicable, are true
and correct as if made on and as of the Closing Date (other
than to the extent any such representation or warranty is made
expressly to a certain date), and the Company and the
Subsidiary Guarantors, as applicable, have performed all
covenants and agreements and satisfied all conditions on their
part to be performed or satisfied hereunder, to the extent a
party hereto, at or prior to the Closing Date;
(B) At the Closing Date, since the date hereof
or since the date of the most recent financial statements in
the Offering Memorandum, except as described in the Offering
Memorandum, no event or events have occurred, nor has any
information become known, that, individually or in the
aggregate, would have a Material Adverse Effect;
(C) They have examined the Preliminary Offering
Memorandum and the Offering Memorandum and, in their opinion,
the Preliminary Offering Memorandum and Offering Memorandum,
as of their respective dates, did not, and the Offering
Memorandum, as of the Closing Date, does not, include any
untrue statement of a material fact and did not omit to state
a material fact necessary to make the statements therein in
light of the circumstances under which they were made not
misleading, and since the date of the Offering Memorandum, no
event has occurred which should have been set forth in a
supplement or amendment to Offering Memorandum; and
21
(D) The issuance and sale of the Notes and
Guarantees by the Company and the Subsidiary Guarantors
hereunder has not been enjoined (temporarily or permanently)
by any court or governmental body or agency.
(n) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial
statements included in the Offering Memorandum (exclusive of any
amendment or supplement thereto after the date hereof) any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Memorandum or (ii)
since such date there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Offering Memorandum, the effect of which, in any such case described in
clause (i) or (ii), is, in the judgment of Lehman Brothers, so material
and adverse as to make it impracticable or inadvisable to proceed with
the offering or the delivery of the Notes and the Guarantees being
delivered on such Closing Date on the terms and in the manner
contemplated in the Offering Memorandum.
(o) Subsequent to the execution and delivery of this
Agreement (i) no downgrading shall have occurred in the rating accorded
the Company's debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Securities Act, and (ii) no such
organization shall have publicly announced or privately informed the
Company that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities.
(p) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange or the
American Stock Exchange or in the over-the-counter market, or trading
in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or the settlement of
such trading generally shall have been materially disrupted or minimum
prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) the
United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war by
the United States or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in
the United States shall be such) or there shall have occurred any other
calamity or crisis, including, without limitation, as a result of
terrorist activities after the date hereof, as to make it, in the
judgment of Lehman Brothers, impracticable or inadvisable to proceed
with the public offering or delivery of the Notes
22
and the Guarantees being delivered on such Closing Date on the terms
and in the manner contemplated in the Offering Memorandum.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchasers.
SECTION 8. Indemnification and Contribution.
(a) The Company and the Subsidiary Guarantors shall
jointly and severally indemnify and hold harmless each Initial
Purchaser, its directors, officers and employees and each person, if
any, who controls any Initial Purchaser within the meaning of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of the Notes and the Guarantees), to which that
Initial Purchaser, director, officer, employee or controlling person
may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Offering Memorandum, the
Offering Memorandum or in any amendment or supplement thereto or (B) in
any blue sky application or other document prepared or executed by the
Company or the Subsidiary Guarantors (or based upon any written
information furnished by the Company or the Subsidiary Guarantors)
specifically for the purpose of qualifying any or all of the Notes
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "BLUE
SKY APPLICATION") or (C) in any materials or information provided to
investors by, or with the approval of, the Company in connection with
the marketing of the offering of the Notes ("MARKETING MATERIALS"),
including any roadshow or investor presentations made to investors by
the Company (whether in person or electronically), (ii) the omission or
alleged omission to state in any Preliminary Offering Memorandum, the
Offering Memorandum or in any amendment or supplement thereto, or in
any Blue Sky Application or Marketing Materials, any material fact
required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made not
misleading or (iii) any act or failure to act or any alleged act or
failure to act by any Initial Purchaser in connection with, or relating
in any manner to, the Notes and the Guarantees or the offering
contemplated hereby, and which is included as part of or referred to in
any loss, claim, damage, liability or action arising out of or based
upon matters covered by clause (i) or (ii) above (provided that the
Company and the Subsidiary Guarantors shall not be liable under this
clause (iii) to the extent that it is determined in a final judgment by
a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to
act undertaken or omitted to be taken by such Initial Purchaser through
its gross negligence or willful misconduct), and shall reimburse each
Initial Purchaser and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Initial Purchaser, director, officer,
employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred provided, however,
that
23
the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Offering
Memorandum or the Offering Memorandum, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning such Initial Purchasers furnished to the Company through the
Initial Purchasers by or on behalf of any Initial Purchasers
specifically for inclusion therein which information consists solely of
the information specified in Section 8(e); and provided further that
with respect to any such untrue statement or omission made in the
Preliminary Offering Memorandum, the forgoing indemnity shall not inure
to the benefit of the Initial Purchaser (or any person who controls the
Initial Purchaser or any officer or director thereof) from whom the
person asserting such loss, claim, damage, liability or action
purchased the Notes, to the extent that such sale was an initial resale
by the Initial Purchaser and any such loss, claim, damage, liability or
action of the Initial Purchaser is a result of the fact that both (i)
to the extent required by applicable law, a copy of the Offering
Memorandum was not sent or given to such person at or prior to the
written confirmation of the sale of such Notes to such person, and (ii)
the untrue statement or omission in the Preliminary Offering Memorandum
was corrected in the Offering Memorandum unless, in either case, such
failure to deliver the Offering Memorandum was a result of
noncompliance by the Company with Section 5(c). The foregoing indemnity
agreement is in addition to any liability which the Company and the
Subsidiary Guarantors may otherwise have to any Initial Purchaser or to
any director, officer, employee or controlling person of that Initial
Purchaser.
(b) Each Initial Purchaser shall, severally and not
jointly, indemnify and hold harmless the Company, the Subsidiary
Guarantors, their respective officers, each of their respective
directors, and each person, if any, who controls the Company within the
meaning of the Securities Act, from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof, to
which the Company, the Subsidiary Guarantors or any such director,
officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Offering Memorandum, the Offering Memorandum or in any
amendment or supplement thereto, or in any Blue Sky Application or (ii)
the omission or alleged omission to state in any Preliminary Offering
Memorandum, the Offering Memorandum or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact necessary to
make the statements therein in light of the circumstances under which
they were made not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information concerning such Initial Purchaser furnished to the Company
through Lehman Brothers by or on behalf of that Initial Purchaser
specifically for inclusion therein, and shall reimburse the Company and
any such director, officer or controlling person for any legal or other
expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Initial
24
Purchaser may otherwise have to the Company, the Subsidiary Guarantors
or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to
notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that Lehman Brothers shall have the
right to employ one counsel to represent jointly Lehman Brothers and
those other Initial Purchasers and their respective directors,
officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be
sought by the Initial Purchasers against the Company under this Section
8 if, in the reasonable judgment of Lehman Brothers, it is advisable
for Lehman Brothers and those Initial Purchasers, directors, officers,
employees and controlling persons to be jointly represented by separate
counsel, and in that event the reasonable fees and expenses of such
separate counsel shall be paid by the Company. No indemnifying party
shall (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding and does not
include any findings of fact or admissions of fault or culpability as
to the indemnified party or (ii) be liable for any settlement of any
such action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability
by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 8(a) or 8(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof,
25
referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Initial Purchasers on
the other from the offering of the Notes and the Guarantees or (ii) if
the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company, on the one hand, and the Initial
Purchasers on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Initial Purchasers on the other with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Notes and the Guarantees purchased
under this Agreement (before deducting expenses) received by the
Company, on the one hand, and the total discounts and commissions
received by the Initial Purchasers with respect to the Notes and the
Guarantees purchased under this Agreement, on the other hand, bear to
the total gross proceeds from the offering of the Notes and the
Guarantees under this Agreement. The relative fault shall be determined
by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or the Initial
Purchasers, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company, the Subsidiary Guarantors and the
Initial Purchasers agree that it would not be just and equitable if
contributions pursuant to this Section 8 were to be determined by pro
rata allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result
of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 8 shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Initial
Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes purchased by it was
resold to Eligible Purchasers exceeds the amount of any damages which
such Initial Purchaser has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute as
provided in this Section 8(d) are several in proportion to their
respective Purchase obligations and not joint.
(e) The Initial Purchasers severally confirm and the
Company and the Subsidiary Guarantors acknowledge that the last
sentence on the cover page of the Offering Memorandum, and the first
sentence of the fifth paragraph, the first and second sentences of the
sixth paragraph and the sixth sentence of the tenth paragraph under the
section entitled "Plan of Distribution" in the Offering Memorandum
constitute the only
26
information concerning the Initial Purchasers furnished in writing to
the Company by or on behalf of the Initial Purchasers specifically for
inclusion in the Offering Memorandum.
SECTION 9. Defaulting Initial Purchasers.
If, on the Closing Date, any Initial Purchaser defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Initial Purchasers shall be obligated to purchase the Notes that
the defaulting Initial Purchaser agreed but failed to purchase on such Closing
Date in the respective proportions which the amount of the Notes set forth
opposite the name of each remaining non-defaulting Initial Purchaser in Schedule
1 hereto bears to the total amount of Notes set forth opposite the names of all
the remaining non-defaulting Initial Purchasers in Schedule 1 hereto; provided,
however, that the remaining non-defaulting Initial Purchasers shall not be
obligated to purchase any of the Notes on such Closing Date if the total amount
of the Notes which the defaulting Initial Purchaser or Initial Purchasers agreed
but failed to purchase on such date exceeds 10% of the total amount of Notes to
be purchased on such Closing Date, and any remaining non-defaulting Initial
Purchaser shall not be obligated to purchase more than 110% of the amount of
Notes which it agreed to purchase on such Closing Date pursuant to the terms of
Section 2. If the foregoing maximums are exceeded, the remaining non-defaulting
Initial Purchasers, or those other Initial Purchasers satisfactory to Lehman
Brothers who so agree, shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among them, all of the Notes
to be purchased on such Closing Date. If the remaining Initial Purchasers or
other Initial Purchasers satisfactory to Lehman Brothers do not elect to
purchase the Notes which the defaulting Initial Purchaser or Initial Purchasers
agreed but failed to purchase on such Closing Date, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser
or the Company, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Sections 6 and 11. As used in
this Agreement, the term "INITIAL PURCHASER" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 9, purchases the Notes which a
defaulting Initial Purchaser agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company and the Subsidiary
Guarantors for damages caused by its default. If other Initial Purchasers are
obligated or agree to purchase the Notes of a defaulting or withdrawing Initial
Purchaser, either the Lehman Brothers or the Company may postpone the Closing
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Initial Purchasers may
be necessary in the Offering Memorandum or in any other document or arrangement.
SECTION 10. Termination. The obligations of the Initial
Purchasers hereunder may be terminated by Lehman Brothers by notice given to and
received by the Company prior to delivery of and payment for the Notes if, prior
to that time, any of the events described in Sections 7(m), 7(n) and 7(o) shall
have occurred or if the Initial Purchasers shall decline to purchase the Notes
for any reason permitted under this Agreement.
27
SECTION 11. Reimbursement of Initial Purchasers'
Expenses. If the Company and the Subsidiary Guarantors shall fail to deliver the
Notes and the Guarantees to the Initial Purchasers by reason of any failure,
refusal or inability on the part of the Company and the Subsidiary Guarantors to
perform any agreement on its part to be performed, or because any other
condition of the Initial Purchasers' obligations hereunder required to be
fulfilled by the Company and the Subsidiary Guarantors is not fulfilled, the
Company and the Subsidiary Guarantors will reimburse the Initial Purchasers for
all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) incurred by the Initial Purchasers in connection with
this Agreement and the proposed purchase of the Notes and the Guarantees, and
upon demand the Company and the Subsidiary Guarantors shall pay the full amount
thereof to Lehman Brothers.
SECTION 12. Notices, etc. All statements, requests,
notices and agreements hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or
sent by mail, telex or facsimile transmission to the care of Lehman
Brothers Inc., 745 Seventh Avenue, 19th Floor, Attention: Michael
Konigsburg (Fax: (646) 758-4247), with a copy to Weil, Gotshal & Manges
LLP, 767 Fifth Avenue, New York, New York 10153, Attention: Jeremy W.
Dickens, Esq. (Fax: (212) 310-8007) and, in the case of any notice
pursuant to Section 8(d), to the Director of Litigation, Office of the
General Counsel, Lehman Brothers Inc., 399 Park Avenue, New York, New
York (Fax: (212) 526-2648);
(b) if to the Company and the Subsidiary Guarantors,
shall be delivered or sent by mail, telex or facsimile transmission to
the Company, 701 Market Street, St. Louis, MO. 63101-1826, Attention:
Chief Financial Officer, (Fax: (314) 342-7597), with a copy to Simpson
Thacher & Bartlett, 425 Lexington Avenue, New York, NY 10017-3909,
Attention: Rise B. Norman, Esq. (Fax: (212) 455-2502);
provided, however, that any notice to an Initial Purchaser pursuant to Section
8(d) shall be delivered or sent by mail, telex or facsimile transmission to such
Initial Purchaser at its address set forth in its acceptance telex to Lehman
Brothers, which address will be supplied to any other party hereto by Lehman
Brothers upon request. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Company shall be entitled
to act and rely upon any request, consent, notice or agreement given or made on
behalf of the Initial Purchasers by Lehman Brothers.
SECTION 13. Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon the Initial
Purchasers, the Company, the Subsidiary Guarantors and their respective personal
representatives and successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company and the
Subsidiary Guarantors contained in this Agreement shall also be deemed to be for
the benefit of the directors, officers, employees of the Initial Purchasers and
each person or persons, if any, who control any Initial Purchasers within the
meaning of Section 15 of the Securities Act and (b) the indemnity agreement of
the Initial Purchasers contained in Section 8(b) of this Agreement shall be
deemed to be for the benefit of directors, officers and any person controlling
the
28
Company and the Subsidiary Guarantors within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
SECTION 14. Survival. The respective indemnities,
representations, warranties and agreements of the Company, the Subsidiary
Guarantors and the Initial Purchasers contained in this Agreement or made by or
on behalf on them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Notes and the Guarantees and shall remain in
full force and effect, regardless of any investigation made by or on behalf of
any of them or any person controlling any of them.
SECTION 15. Definition of the Terms "Business Day" and
"Subsidiary". For purposes of this Agreement, (a) "BUSINESS DAY" means each
Monday, Tuesday, Wednesday, Thursday or Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close and (b) "SUBSIDIARY" has the meaning set forth in Rule
405 of the Securities Act.
SECTION 16. Jurisdiction. Each of the parties hereto
irrevocably consents to the jurisdiction of the courts of the State of New York
and the courts of the United States of America located in the Borough of
Manhattan, City and State of New York, over any suit, action or proceeding with
respect to this Agreement or the transactions contemplated hereby. Each of the
parties hereto waives any objection that it may have to the venue of any suit,
action or proceeding with respect to this Agreement or the transactions
contemplated hereby in the courts of the State of New York or the courts of the
United States of America, in each case, located in the Borough of Manhattan,
City and State of New York or that such suit, action or proceeding brought in
the courts of the State of New York or United States of America, in each case,
located in the Borough of Manhattan, City and State of New York was brought in
an inconvenient court and agrees not to plead or claim the same.
SECTION 17. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of New York.
SECTION 18. Counterparts. This Agreement may be executed
in multiple counterparts and, if executed in counterparts, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 19. Headings. The headings herein are inserted
for convenience of reference only and are not intended to be part of, or to
affect the meaning or interpretation of, this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
29
If the foregoing correctly sets forth the agreement among the
Company, the Subsidiary Guarantors and the Initial Purchasers, please indicate
your acceptance in the space provided for that purpose below.
Very truly yours,
ISSUER
PEABODY ENERGY CORPORATION
By:
--------------------------------------
Name: Richard A. Navarre
Title: Executive Vice President and Chief
Financial Officer
SIGNATURE PAGE TO PURCHASE AGREEMENT
GUARANTORS
AFFINITY MINING COMPANY
ARID OPERATIONS INC.
BEAVER DAM COAL COMPANY
BIG RIDGE, INC.
BIG SKY COAL COMPANY
BLACK WALNUT COAL COMPANY
BLUEGRASS COAL COMPANY
CABALLO COAL COMPANY
CHARLES COAL COMPANY
CLEATON COAL COMPANY
COAL PROPERTIES CORP.
COOK MOUNTAIN COAL COMPANY
COTTONWOOD LAND COMPANY
CYPRUS CREEK LAND COMPANY
CYPRUS CREEK LAND RESOURCES, LLC
EACC CAMPS, INC.
EASTERN ASSOCIATED COAL CORP.
EASTERN ROYALTY CORP.
GALLO FINANCE COMPANY
GOLD FIELDS CHILE, S.A.
GOLD FIELDS MINING CORPORATION
GOLD FIELDS OPERATING CO.-ORTIZ
GRAND EAGLE MINING, INC.
HAYDEN GULCH TERMINAL, INC
HIGHLAND MINING COMPANY
HILLSIDE MINING COMPANY
INDEPENDENCE MATERIAL HANDLING
COMPANY
INTERIOR HOLDINGS CORP.
JAMES RIVER COAL TERMINAL COMPANY
JARRELL'S BRANCH COAL COMPANY
JUNIPER COAL COMPANY
KAYENTA MOBILE HOME PARK, INC.
LOGAN FORK COAL COMPANY
MARTINKA COAL COMPANY
MIDCO SUPPLY AND EQUIPMENT
CORPORATION
MOUNTAIN VIEW COAL COMPANY
MUSTANG ENERGY COMPANY, L.L.C.
NORTH PAGE COAL CORP.
OHIO COUNTY COAL COMPANY
PEABODY AMERICA, INC.
PEABODY ARCHVEYOR, L.L.C.
PEABODY COALSALES COMPANY
SIGNATURE PAGE TO PURCHASE AGREEMENT
PEABODY COALTRADE, INC.
PEABODY COAL COMPANY
PEABODY DEVELOPMENT COMPANY
PEABODY DEVELOPMENT LAND HOLDINGS,
L.L.C.
PEABODY ENERGY GENERATION HOLDING
COMPANY
PEABODY ENERGY INVESTMENTS, INC.
PEABODY ENERGY SOLUTIONS, INC.
PEABODY HOLDING COMPANY, INC.
PEABODY NATURAL GAS, LLC
PEABODY RECREATIONAL LANDS, L.L.C.
PEABODY SOUTHWESTERN COAL
COMPANY
PEABODY TERMINALS, INC.
PEABODY VENEZUELA COAL CORP.
PEABODY-WATERSIDE DEVELOPMENT,
L.L.C.
PEABODY WESTERN COAL COMPANY
PINE RIDGE COAL COMPANY
POND CREEK LAND RESOURCES, LLC
POND RIVER LAND COMPANY
PORCUPINE PRODUCTION, LLC
PORCUPINE TRANSPORTATION, LLC
POWDER RIVER COAL COMPANY
PRAIRIE STATE GENERATING COMPANY,
LLC
RIO ESCONDIDO COAL CORP.
RIVERS EDGE MINING, INC.
RIVERVIEW TERMINAL COMPANY
SENECA COAL COMPANY
SENTRY MINING COMPANY
SNOWBERRY LAND COMPANY
STAR LAKE ENERGY COMPANY, L.L.C.
STERLING SMOKELESS COAL COMPANY
THOROUGHBRED, L.L.C.
THOROUGHBRED GENERATING COMPANY,
LLC
THOROUGHBRED MINING COMPANY, L.L.C.
YANKEETOWN DOCK CORPORATION
By:_______________________________________
Name: Steven F. Schaab
Title: Vice President
SIGNATURE PAGE TO PURCHASE AGREEMENT
COLONY BAY COAL COMPANY
By: Eastern Associated Coal Corp., its general
partner
By:_________________________________________
Name: Steven F. Schaab
Title: Vice President
By: Charles Coal Company, its general partner
By:_________________________________________
Name: Steven F. Schaab
Title: Vice President
PATRIOT COAL COMPANY, L.P.
By: Bluegrass Coal Company, its managing
partner
By:_________________________________________
Name: Steven F. Schaab
Title: Vice President
PEABODY NATURAL RESOURCES
COMPANY
By: Gold Fields Mining Corporation
By:_________________________________________
Name: Steven F. Schaab
Title: Vice President
By: Peabody America, Inc.
By:_________________________________________
Name: Steven F. Schaab
Title: Vice President
SIGNATURE PAGE TO PURCHASE AGREEMENT
Accepted:
LEHMAN BROTHERS INC.
By:_________________________________________
Authorized Representative
For itself and as representative
of the several Initial Purchasers named
in Schedule 1 hereto
SIGNATURE PAGE TO PURCHASE AGREEMENT
SCHEDULE 1
Principal Amount
Initial Purchasers of Notes
- ------------------ ----------------
Lehman Brothers Inc. ........................................................... $ 292,500,000
Morgan Stanley & Co. Incorporated .............................................. 81,250,000
Wachovia Securities, Inc........................................................ 65,000,000
Fleet Securities, Inc........................................................... 48,750,000
U.S. Bancorp Piper Jaffray Inc.................................................. 32,500,000
PNC Capital Markets, Inc........................................................ 32,500,000
Fortis Investment Services, LLC................................................. 32,500,000
BMO Nesbitt Burns Corp.......................................................... 24,375,000
Credit Lyonnais Securities (USA) Inc............................................ 24,375,000
ABN AMRO Incorporated .......................................................... 16,250,000
Total $ 650,000,000
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