EXHIBIT 1.1
$900,000,000
P&L COAL HOLDINGS CORPORATION
$400,000,000 8-7/8% Senior Notes due 2008
$500,000,00 9-5/8% Senior Subordinated Notes due 2008
PURCHASE AGREEMENT
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May 13, 1998
Xxxxxx Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
P&L Coal Holdings Corporation, a Delaware corporation (the
"COMPANY"), proposes to issue and sell to you (the "INITIAL PURCHASER"), $400.0
million in aggregate principal amount at maturity of its 8-7/8% Senior Notes due
2008 (the "SERIES A SENIOR NOTES") and $500.0 million in aggregate principal
amount at maturity of its 9-5/8% Senior Subordinated Notes due 2008 (the "SERIES
A SUBORDINATED NOTES" and together with the Series A Senior Notes, the "SERIES A
NOTES"), the Series A Senior Notes to be issued pursuant to the terms of an
Indenture (the "SENIOR NOTE INDENTURE") between the Company and State Street
Bank and Trust Company, as trustee (the "SENIOR NOTE TRUSTEE"), the Series A
Subordinated Notes to be issued pursuant to the terms of an Indenture (the
"SUBORDINATED NOTE INDENTURE" and together with the Senior Note Indenture, the
"INDENTURES") between the Company and State Street Bank and Trust Company, as
trustee (the "SUBORDINATED NOTE TRUSTEE" and together with the Senior Note
Trustee, the "TRUSTEES"), relating to the Series A Notes. Capitalized terms used
but not defined herein shall have the meanings given to such terms in the
Indentures.
Each tranche of the Series A Notes will be offered and sold to
you pursuant to exemptions from the registration requirements under the
Securities Act of 1933, as amended (the "SECURITIES ACT"). The Company has
prepared a preliminary offering memorandum, dated May 4, 1998 (the "PRELIMINARY
OFFERING MEMORANDUM"), and a final offering memorandum (the "OFFERING
MEMORANDUM"), dated May 13, 1998, relating to the Company and each tranche of
the Series A Notes.
It is understood and acknowledged that upon original issuance
thereof, and until such time as the same is no longer required under the
applicable requirements of the Securities Act, each tranche of the Series A
Notes (and all securities issued in exchange therefor or in substitution
thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF
THE UNITED STATES SECURITIES ACT OF 1933, AS
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AMENDED (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (1) (a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE,
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN (A) ABOVE."
You have represented and warranted to the Company that you will
make offers (the "EXEMPT RESALES") of each tranche of the Series A Notes
purchased by you hereunder on the terms set forth in the Offering Memorandum, as
amended or supplemented, 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) to persons other than U.S. persons in offshore
transactions meeting the requirements of Rule 903 or 904 of 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" and
"U.S. PERSON" have the respective meanings given to them in Regulation S. You
will offer each tranche of the Series A Notes to Eligible Purchasers initially
at a price equal to 100% of the principal amount thereof. Such price may be
changed at any time without notice.
Holders (including subsequent transferees) of the Series A Senior
Notes will have the registration rights set forth in the registration rights
agreement (the "SENIOR REGISTRATION RIGHTS AGREEMENT"), to be dated May 18, 1998
(the "CLOSING DATE"), for so long as such Series A Senior Notes constitute
"TRANSFER RESTRICTED SECURITIES" (as defined in the Senior Registration Rights
Agreement). Holders (including subsequent transferees) of the Series A
Subordinated Notes will have the registration rights set forth in the
registration rights agreement (the "SUBORDINATED REGISTRATION RIGHTS AGREEMENT"
and, together with the Senior Registration Rights Agreement, the "REGISTRATION
RIGHTS AGREEMENTS"), to be dated the Closing Date, for so long as such Series A
Subordinated Notes constitute "TRANSFER RESTRICTED SECURITIES" (as defined in
the Subordinated Registration Rights Agreement). Pursuant to the Registration
Rights Agreements, the Company 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 the Company's 8-7/8% Series B Senior
Notes due 2008 (the "SERIES B SENIOR NOTES"), its 9-5/8% Series B Senior
Subordinated
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Notes due 2008 (the "SERIES B SUBORDINATED NOTES" and together with the Series B
Senior Notes, the "SERIES B NOTES;" the Series B Notes together with the Series
A Notes, the "NOTES") to be offered in exchange for each tranche of the Series A
Notes (such offer to exchange being referred to collectively as the "EXCHANGE
OFFER") and (ii) a shelf registration statement pursuant to Rule 415 under the
Securities Act (the "SHELF REGISTRATION STATEMENT," and together with the
Exchange Offer Registration Statement, the "REGISTRATION STATEMENTS") relating
to the resale of each tranche of the Series A Notes by certain holders of such
Notes, and to use its best efforts to cause such Registration Statements to be
declared effective. This Agreement, the Indentures and the Registration Rights
Agreements are hereinafter referred to collectively as the "OPERATIVE
DOCUMENTS." This is to confirm the agreement concerning the purchase of each
tranche of the Series A Notes from the Company by the Initial Purchaser.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company (as of the date hereof and the Closing Date) represents, warrants and
agrees as follows:
The Preliminary Offering Memorandum and Offering Memorandum have
been prepared by the Company for use by the Initial Purchaser 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, is
contemplated.
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 contained
therein, in light of the circumstances under which they were made, not
misleading.
The market-related and industry data included in the Preliminary
Offering Memorandum and the Offering Memorandum are based upon estimates by the
Company derived from sources which the Company believes to be reliable and
accurate in all material respects.
The Company is a corporation duly incorporated and validly
existing and in good standing under the laws of Delaware with all requisite
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Preliminary Offering Memorandum and the
Offering Memorandum, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the nature
of its properties or the conduct of its business requires such registration or
qualification, except where the failure to so register or qualify or 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 (a "MATERIAL ADVERSE EFFECT").
The Company has all requisite power and authority to execute,
deliver and perform its obligations under this Agreement, the Indentures and the
Registration Rights Agreements.
The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under each tranche of the Notes.
This Agreement has been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery by the
Initial Purchaser, constitutes the legally valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms subject to
(i) the effects of bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws relating to or affecting creditors'
rights generally, (ii) general equitable
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principles (whether considered in a proceeding in equity or at law), (iii) an
implied covenant of good faith and fair dealing and (iv) except as rights to
indemnity and contribution hereunder may be limited by Federal or state
securities laws or principles of public policy.
The Senior Registration Rights Agreement has been duly authorized
by the Company and, upon its execution and delivery by the Company and, assuming
due authorization, execution and delivery by the Initial Purchaser, will
constitute the legally valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms subject to (i) the effects of
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or at
law), (iii) an implied covenant of good faith and fair dealing and (iv) except
as rights to indemnity and contribution hereunder may be limited by Federal or
state securities laws or principles of public policy.
The Subordinated Registration Rights Agreement has been duly
authorized by the Company and, upon its execution and delivery by the Company
and, assuming due authorization, execution and delivery by the Initial
Purchaser, will constitute the legally valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms subject to
(i) the effects of bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws relating to or affecting creditors'
rights generally, (ii) general equitable principles (whether considered in a
proceeding in equity or at law), (iii) an implied covenant of good faith and
fair dealing and (iv) except as rights to indemnity and contribution hereunder
may be limited by Federal or state securities laws or principles of public
policy.
The Senior Note Indenture has been duly authorized by the
Company, and upon its execution and delivery by the Company and, assuming due
authorization, execution and delivery by the Senior Note Trustee, will
constitute the legally valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms subject to (i) the effects of
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors' rights generally, (ii) by
general equitable principles (whether considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing; no
qualification of the Senior Note Indenture under the Trust Indenture Act of
1939, as amended ("TIA") is required in connection with the offer and sale of
the Series A Senior Notes contemplated hereby or in connection with the Exempt
Resales other than in connection with the performance of the Company's
obligations under the Senior Registration Rights Agreement.
The Subordinated Note Indenture has been duly authorized by the
Company, and upon its execution and delivery by the Company and, assuming due
authorization, execution and delivery by the Subordinated Note Trustee, will
constitute the legally valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms subject to (i) the effects of
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors' rights generally, (ii) by
general principles (whether considered in a proceeding in equity or at law) and
(iii) an implied covenant of good faith and fair dealing; no qualification of
the Subordinated Note Indenture under the TIA is required in connection with the
offer and sale of the Series A Subordinated Notes contemplated hereby or in
connection with the Exempt Resales other than in connection with the performance
of the Company's obligations under the Subordinated Registration Rights
Agreement.
The Series A Senior Notes have been duly authorized by the
Company and when duly executed by the Company in accordance with the terms of
the Senior Note Indenture and, assuming
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due authentication of the Series A Senior Notes by the Senior Note Trustee, upon
delivery to the Initial Purchaser against payment therefor in accordance with
the terms hereof, will have been validly issued and delivered, and will
constitute legally valid and binding obligations of the Company entitled to the
benefits of the Senior Note Indenture, enforceable against the Company in
accordance with their terms subject to (i) the effects of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws relating to or affecting creditors' rights generally, (ii) by general
equitable principles (whether considered in a proceeding in equity or at law)
and (iii) an implied covenant of good faith and fair dealing.
The Series A Subordinated Notes have been duly authorized by the
Company and when duly executed by the Company in accordance with the terms of
the Subordinated Note Indenture and, assuming due authentication of the Series A
Subordinated Notes by the Subordinated Notes Trustee, upon delivery to the
Initial Purchaser against payment therefor in accordance with the terms hereof,
will have been validly issued and delivered, and will constitute legally valid
and binding obligations of the Company entitled to the benefits of the
Subordinated Note Indenture, enforceable against the Company in accordance with
their terms subject to (i) the effects of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws
relating to or affecting creditors' rights generally, (ii) by general equitable
principles (whether enforcement is considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing.
On or before the Closing Date the Series B Senior Notes will have
been duly authorized by the Company and if and when duly issued and
authenticated in accordance with the terms of the Senior Note Indenture and
delivered in accordance with the Exchange Offer provided for in the Senior
Registration Rights Agreement, will constitute legally valid and binding
obligations of the Company entitled to the benefits of the Senior Note
Indenture, enforceable against the Company in accordance with their terms
subject to (i) the effects of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally, (ii) by general equitable principles
(whether enforcement is considered in a proceeding in equity or at law) and
(iii) an implied covenant of good faith and fair dealing.
On or before the Closing Date, the Series B Subordinated Notes
will have been duly authorized by the Company and if and when duly issued and
authenticated in accordance with the terms of the Subordinated Note Indenture
and delivered in accordance with the Exchange Offer provided for in the
Subordinated Registration Rights Agreement, will constitute legally valid and
binding obligations of the Company entitled to the benefits of the Subordinated
Note Indenture enforceable against the Company in accordance with their terms
subject to (i) the effects of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally, (ii) by general equitable principles
(whether enforcement is considered in a proceeding in equity or at law) and
(iii) an implied covenant of good faith and fair dealing.
The senior credit facilities, dated as of May 18, 1998, by and
among P&L Coal Holdings Corporation and Xxxxxx Commercial Paper Inc., as
Administrative Agent, Syndication Agent and Documentation Agent, and Xxxxxx
Brothers Inc., as Arranger, (the "CREDIT FACILITIES"), and any and all other
agreements and instruments ancillary to or entered into in connection with the
transaction contemplated by the credit agreement (the "CREDIT DOCUMENTS"), were
duly and validly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the other parties thereto,
constitute the valid and binding agreements of the Company, enforceable against
the Company in accordance with their respective terms subject to (i) the effects
of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors'
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rights generally, (ii) by general equitable principles (whether enforcement is
considered in a proceeding in equity or at law) and (iii) an implied covenant
of good faith and fair dealing.
All the shares of capital stock, partnership, membership or other
equity interest of the Company outstanding prior to the issuance of each tranche
of the Series A Notes have been duly authorized and validly issued and are fully
paid and nonassessable.
The Company does not own capital stock or other equity interests
of any corporation or entity other than as disclosed in the Offering Memorandum.
There are no legal or governmental proceedings pending or, to the
knowledge of the Company, contemplated by, or threatened, against the Company or
to which any of its properties are subject, that are not disclosed in the
Offering Memorandum and which, are reasonably likely to have a Material Adverse
Effect or to materially and adversely affect the issuance of each tranche of the
Notes or the consummation of the other transactions contemplated by the
Operative Documents. The Company is not involved in any strike, job action or
labor dispute with any group of employees, and, to the knowledge of the Company,
no such action or dispute is threatened.
No material relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers, shareholders,
members, partners, customers or suppliers of the Company on the other hand, that
would be required to be described in the Offering Memorandum pursuant to
Regulation S-K of the Securities Act if Regulation S-K were applicable to the
Offering Memorandum, which is not so described in the Offering Memorandum.
The execution, delivery and performance of this Agreement and the
other Operative Documents and the issuance of each tranche of the Series A Notes
and each tranche of the Series B Notes and the consummation of the transactions
contemplated hereby and thereby will not conflict with, or result in a breach or
violation of any of the terms or provisions of, or (including with the giving of
notice or the lapse of time or both) constitute a default under (i) any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the properties or assets of the Company are subject, (ii) the
provisions of the charter, by-laws or other organizational documents of the
Company or (iii) 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
properties or assets, except in the cases of clause (i) or (iii), such breaches,
violations or defaults that in the aggregate would not reasonably be expected to
have a Material Adverse Effect; and no consent, approval, authorization or order
of, or filing or registration with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement and the
other Operative Documents and the issuance of each tranche of the Series A Notes
and each tranche of the Series B Notes and the consummation of the transactions
contemplated hereby and thereby except (A) as may be required by the securities
or "blue sky" laws of any state of the United States in connection with the sale
of each tranche of the Series A Notes and each tranche of the Series B Notes,
and (B) as contemplated by the Registration Rights Agreements and (C) as
required under the TIA for the issuance of each tranche of the Series B Notes,
and (D) in connection with trading of the Notes on PORTAL.
The accountants, Xxxxx & Young LLP, who have certified certain of
the financial statements included as part of the Offering Memorandum, are
independent public accountants as required by the Securities Act and its Rules
and Regulations.
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The Xxxx X. Xxxx Company, whose report is referred to in the
Offering Memorandum, as of the date of such report, and is, as of the date
hereof, independent mining and geological consultants with respect to the
Company.
The combined historical financial statements, and pro forma
financial information, together with the related notes thereto, set forth in the
Offering Memorandum comply as to form in all material respects with the
requirements of Regulation S-X under the Securities Act applicable to
registration statements under the Securities Act. Such historical financial
statements fairly present in all material respects the financial position of the
Company at the respective dates indicated and the results of operations and cash
flows for the respective periods indicated, subject in the case of unaudited
combined financial statements to year-end audit adjustments, in each case in
accordance with generally accepted accounting principles ("GAAP") consistently
applied throughout such periods. Such pro forma financial information has been
prepared on a basis consistent with such historical and proposed transactions
contemplated by the Offering Memorandum and this Agreement. The other financial
information and data included in the Offering Memorandum, historical and pro
forma, are, in all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books and records of the
Company.
Since the date of the latest audited combined financial
statements of the Company included in the Offering Memorandum, the Company has
not incurred any liability or obligation, direct or contingent, or entered into
any transaction, in each case not in the ordinary course of business, that is
material to the Company and there has been no Material Adverse Effect and,
except as disclosed in or contemplated by the Offering Memorandum, since the
date of the latest audited combined financial statements of the Company included
in the Offering Memorandum, there has been no (i) dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital stock
(other than the payment of regular quarterly cash dividends), (ii) issuance of
securities (other than pursuant to the Company's employee benefit plans and
agreement and the issuance of the Series A Notes offered hereby) or (iii)
material increase in short-term or long-term debt of the Company.
The Company has good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by
it, in each case free and clear of all liens, claims, security interests or
other encumbrances and defects except such as are described in the Offering
Memorandum, other than to be granted pursuant to the Senior Credit Facilities,
or such as do not materially affect the value of such property by the Company or
would not reasonably be expected to have a Material Adverse Effect; and all
material real property and buildings held under lease by the Company is held
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.
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 and any other entity or agency regulating the
environment in countries other than the United States, as are necessary under
applicable law to own its properties and to conduct its businesses in the manner
described in the Offering Memorandum and, except to the extent that the failure
to have such 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 which 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
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Offering Memorandum and except to the extent that any such revocation or
termination would not reasonably be expected to have a Material Adverse Effect.
The Company is not currently and will not be, upon sale of each
tranche of the Series A Notes in accordance herewith and the application of the
net proceeds therefrom as described in the Offering Memorandum under the caption
"Use of Proceeds," an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D ("REGULATION D") under the Securities Act) of the Company, other
than the Initial Purchaser, has directly, or through any agent (provided that no
representation is made as to the Initial Purchaser 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 each tranche of the
Notes in a manner that would require the registration of each tranche of the
Series A Notes 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 each tranche of the Series A Notes. No
securities of the same class as each tranche of the Series A Notes have been
issued and sold by the Company within the six-month period immediately prior to
the date hereof.
Except as permitted by the Securities Act, the Company has not
distributed and, prior to the Closing Date will not distribute, any offering
material in connection with the offering and sale of each tranche of the Series
A Notes other than the Preliminary Offering Memorandum and Offering Memorandum.
When each tranche of the Series A Notes is issued and delivered
pursuant to this Agreement, neither tranche of such Series A Notes will 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 Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT") or that are quoted in a United States automated inter-
dealer quotation system.
Assuming (i) that each tranche of the Series A Notes is issued,
sold and delivered under the circumstances contemplated by the Offering
Memorandum and this Agreement, (ii) that your representations and warranties in
Section 2 are true, (iii) compliance by you with your covenants set forth in
Section 2 and (iv) that each of the Eligible Purchasers is either (A) an entity
that you reasonably believe to be a QIB or (B) a person who is not a "U.S.
person" and who acquires the Series A Notes outside the United States in an
"offshore transaction" (within the meaning of Regulation S), the purchase of
each tranche of the Series A Notes by you pursuant hereto and the initial resale
of each tranche of the Series A Notes pursuant to the Exempt Resales is exempt
from the registration requirements of the Securities Act.
Except as would not reasonably be expected, individually or in
the aggregate, 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 reasonably expect to incur liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii)
9
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including
the regulations and published interpretations thereunder (the "CODE"). 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, individually or in the aggregate, to have a Material Adverse Effect.
The execution and delivery of this Agreement, the other Operative
Documents and the sale of each tranche of the Series A Notes to be purchased by
the Eligible Purchasers will not involve any prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code. The representation
made by the Company in the preceding sentence is made in reliance upon and
subject to the accuracy of, and compliance with, the representations and
covenants made or deemed made by the Eligible Purchasers as set forth in the
Offering Memorandum under the section entitled "Notice to Investors."
Except as described in the Offering Memorandum, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration Statements
or in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
To the knowledge of the Company, the Company carries, or is
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of its businesses and the value of its properties and as is
customary for companies engaged in similar businesses in similar industries.
The Company 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 have
a Material Adverse Effect) and have 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 have a Material Adverse Effect. No tax
deficiency has been determined adversely to the Company nor does the Company
have any knowledge of any tax deficiency which, if determined adversely to the
Company, would have a Material Adverse Effect.
Except as set forth in the Offering Memorandum, there has been no
storage, disposal, generation, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous substances by the Company
(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 in violation of any applicable law, ordinance, rule, regulation or
order, or which would require remedial action under any applicable law,
ordinance, rule, regulation or order, except for any violation or remedial
action which would not be reasonably likely to have, singularly or in the
aggregate, 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, solid wastes, hazardous wastes or hazardous substances due to or
caused by the Company or with respect to which the Company has knowledge, except
for any such spill, discharge, leak, emission, injection, escape, dumping or
release which would not be reasonably likely to have, singularly or in the
aggregate, a Material Adverse Effect; and the terms "hazardous wastes," "medical
wastes," "toxic wastes," and "hazardous substances"
10
shall have the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection.
None of the Company or any of its affiliates (other than the
Initial Purchaser) or any person acting on its or 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 each
tranche of the Notes, and the Company and its affiliates and all persons acting
on its or their behalf have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering of
each tranche of the Notes outside of the United States; provided, that, no
representation or covenant is made as to the Initial Purchaser or any person
acting on their behalf.
The sale of each tranche of the Series A Notes pursuant to
Regulation S are "offshore transactions" and are not part of a plan or scheme to
evade the registration provisions of the Securities Act.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE INITIAL
PURCHASER. The Initial Purchaser represents and warrants that:
The 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 each tranche of the Series A Notes.
The Initial Purchaser (i) is not acquiring each tranche of the
Series A Notes with a view to any distribution thereof or with any present
intention of offering or selling any of either tranche of the Series A Notes in
a transaction that would violate the Securities Act or the securities laws of
any State of the United States or any other applicable jurisdiction; (ii) in
connection with the Exempt Resales, will solicit offers to buy the Notes only
from, and will offer to sell either tranche of the Notes 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 either tranche of the
Notes pursuant to, nor has it offered or sold either tranche of the Notes by, or
otherwise 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 each
tranche of the Series A Notes.
It understands that neither tranche of the Notes has 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
pursuant to an exemption from the registration requirements of the Securities
Act or outside the U.S. or to, or for the account or benefit of non-U.S. persons
in accordance with Regulation S. The Initial Purchaser represents that it has
not offered, sold or delivered either tranche of the Notes, and will not offer,
sell or deliver either tranche of the Notes (i) as part of its distribution at
any time or (ii) otherwise until 40 days after the later of the commencement of
the offering and the Closing Date or such longer period as may then be
applicable under Regulation S (such period, the "RESTRICTED 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 or another applicable
exemption. Accordingly, the Initial Purchaser represents and agrees that neither
it, its affiliates nor any persons acting on its or their behalf has engaged or
will engage in any directed selling efforts within the meaning of Rule 902(b) of
Regulation S with respect to either tranche of the Notes, and it, its affiliates
and all persons acting on its behalf have complied and will comply with the
offering restriction requirements of Regulation S.
11
The Initial Purchaser agrees that at or prior to confirmation of
all sales of each tranche of the Notes pursuant to Regulation S, it will have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Notes from it during the Restricted Period
a confirmation or notice substantially to the following effect:
"The Notes covered hereby have not been registered under the U.S.
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
Rule 144A if available under the Securities Act. Terms used above have
the meanings assigned to them in Regulation S."
The Initial Purchaser further agrees that it has not entered and will
not enter into any contractual arrangement with respect to the distribution or
delivery of either tranche of the Notes, except with its affiliates or with the
prior written consent of the Company.
The Initial Purchaser agrees not to cause any advertisement of
either tranche of the Notes to be published in any newspaper or periodical or
posted in any public place and not to issue any circular relating to each
tranche of the Notes, except such advertisements as may be permitted by
Regulation S.
The sale of each tranche of the Series A Notes pursuant to
Regulation S are "offshore transactions" and are not part of a plan or scheme to
evade the registration provisions of the Securities Act.
The 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 Purchaser, will rely upon the
accuracy and truth of the foregoing representations and you hereby consent to
such reliance.
The terms used in this Section 2 that have meanings assigned to them
in Regulation S are used herein as so defined.
PURCHASE OF THE NOTES BY THE INITIAL PURCHASER. 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 $400.0 million in
aggregate principal amount of Series A Senior Notes to the Initial Purchaser and
the Initial Purchaser will purchase such aggregate principal amount of Series A
Senior Notes at an aggregate purchase price equal to 97.0% of the principal
amount thereof (the "SENIOR NOTES PURCHASE PRICE") and the Company agrees to
sell $500.0 million in aggregate principal amount of Series A Subordinated Notes
to the Initial Purchaser and the Initial Purchaser will purchase such aggregate
principal amount of Series A Subordinated Notes at an aggregate purchase price
equal to 97.0% of the principal amount thereof (the "SUBORDINATED NOTES PURCHASE
PRICE").
The Company shall not be obligated to deliver any of the Series A
Notes to be delivered, except upon payment for all of each tranche of the Series
A Notes to be purchased on such Closing Date as provided herein.
12
DELIVERY OF AND PAYMENT.
Delivery to the Initial Purchaser of and payment for each tranche
of the Series A Notes shall be made at 10:00 a.m., New York City time, on the
Closing Date at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, or such other place or time as you and the
Company shall designate.
One or more of each tranche of Series A Notes in definitive form,
registered in the name of Cede & Co., as nominee of The Depository Trust Company
("DTC"), or such other names as the Initial Purchaser may request upon at least
one business days' notice to the Company, having an aggregate principal amount
at maturity corresponding to the aggregate principal amount of each tranche of
the Series A Notes sold pursuant to Exempt Resales (collectively, the "GLOBAL
NOTES"), shall be delivered by the Company to the Initial Purchaser, against
payment by the Initial Purchaser of the purchase price thereof by wire transfer
of immediately available funds as the Company may direct by written notice
delivered to you one business day prior to the Closing Date. The Global Notes in
definitive form shall be made available to you for inspection not later than
10:00 a.m. on the day immediately preceding the Closing Date.
Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
the Initial Purchaser hereunder.
FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
To advise you promptly and, if requested by you, to confirm such
advice in writing, of (i) the issuance by any state securities commission of any
stop order suspending the qualification or exemption from qualification of each
tranche of any Series A Notes for offering or sale in any jurisdiction, or the
initiation 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 Offering
Memorandum untrue or that requires the making of any additions to or changes in
the Offering Memorandum in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company shall use
its reasonable efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of each tranche of the Series A Notes
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 each tranche of the Series A Notes under any state securities or
Blue Sky laws, the Company shall use every reasonable effort to obtain the
withdrawal or lifting of such order at the earliest possible time.
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.
Not to amend or supplement the Offering Memorandum prior to the
Closing Date 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. If, in connection with any Exempt Resales
or market-making transactions after the date of this Agreement and prior to the
consummation of the Exchange Offer, any event shall occur that, in the judgment
of the Company or in the judgment of counsel to you, makes any statement of a
material fact in the Offering Memorandum untrue or that
13
requires the making of any additions to or changes in the Offering Memorandum in
order to make the statements in the Offering Memorandum, in 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 any applicable laws, the
Company shall promptly notify you of such event and prepare an appropriate
amendment or supplement to the Offering Memorandum so that (i) the statements in
the Offering Memorandum as amended or supplemented will, in light of the
circumstances at the time that the Offering Memorandum is delivered to
prospective Eligible Purchasers, not be misleading and (ii) the Offering
Memorandum will comply with applicable law.
To cooperate with you and your counsel in connection with the
qualification of each tranche of the Series A Notes for offer and sale by you
and by dealers 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 a nominal amount in any such
jurisdiction where it is not then so subject). Subject to the provisions in the
first sentence of this Section 5(d), the Company shall continue such
qualification in effect so long as required by law for distribution of each
tranche of the Series A Notes.
Not to voluntarily claim the benefit of any usury law against the
holders of each tranche of the Series A Notes.
Prior to the Closing Date, to furnish to you, any internal
combined financial statements of the Company that have been prepared by the
Company for any period subsequent to the period covered by the financial
statements appearing in the Offering Memorandum.
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 each tranche of the Series A Notes.
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 either tranche of the Series A Notes in a
manner that would require the registration under the Securities Act of the sale
to you or the Eligible Purchasers of either tranche of Series A Notes.
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 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 each tranche of the Series B
Notes in connection with the Exchange Offer or (ii) with the prior consent of
the Initial Purchaser, which consent shall not be unreasonably withheld.
For the period that is two years after the Closing Date or for so
long as necessary to comply with Rule 144A in connection with resales by
registered holders or beneficial owners of each tranche of Series A Notes,
whichever is longer, to make available to such registered holder or beneficial
owner of each tranche of Series A Notes in connection with any sale thereof and
any prospective purchaser of each tranche of such Series A Notes from such
registered holder or beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act (or any successor provision thereto).
14
To comply with its agreements in the Registration Rights
Agreements, and all agreements set forth in the representation letters of the
Company to DTC relating to the approval of each tranche of the Notes by DTC for
"book-entry" transfer.
To use its reasonable best efforts to effect the inclusion of
each tranche of the Notes in the National Association of Securities Dealers,
Inc. Automated Quotation System - PORTAL ("PORTAL").
To apply the net proceeds from the sale of each tranche of the
Series A Notes being sold by the Company as set forth in the Offering Memorandum
under the caption "Use of Proceeds."
During the period that is two years after the Closing Date, to
take such steps as shall be necessary to ensure that the Company does not become
an "investment company" within the meaning of such term under the Investment
Company Act of 1940 and the rules and regulations of the Commission thereunder.
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 Indentures, any Blue Sky Memoranda and any 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 of each tranche
of the Notes, (iv) the qualification of each tranche 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 Memorandum, and all
amendments and supplements thereto, as may be reasonably requested by the
Initial Purchaser for use in connection with the initial Exempt Resales, (vi)
the preparation of certificates for each tranche of the Notes including, without
limitation, printing and engraving, (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 each tranche of the Series A
Notes in PORTAL, (ix) all fees and expenses (including fees and expenses of
counsel) of the Company in connection with approval of each tranche of the Notes
by DTC for "book-entry" transfer and (x) the performance by the Company of its
other obligations under this Agreement to the extent not provided for above.
CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations of
the Initial Purchaser hereunder are subject to the accuracy, when made and again
on the Closing Date (as if made again on and as of such 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:
15
The Offering Memorandum shall have been printed and copies made
available to you not later than 6:00 p.m., New York City time, on the Business
Day following the date of this Agreement, or at such later date and time as you
may approve in writing.
The Initial Purchaser shall not 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 Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser, is material
or omits to state a fact which, in the opinion of such counsel, is material and
is necessary to make the statements, in the light of the circumstances under
which they were made, not misleading.
All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the other Operative
Documents, the Offering Memorandum and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Initial Purchaser, 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.
Xxxxxxx Xxxxxxx & Xxxxxxxx shall have furnished to the Initial
Purchaser, its written opinion, as counsel to the Company, addressed to the
Initial Purchaser and dated as of the Closing Date, substantially in the form of
Exhibit A hereto:
The Initial Purchaser shall have received from Xxxxxx & Xxxxxxx,
counsel for the Initial Purchaser, such opinion or opinions, dated as of the
Closing Date, with respect to the issuance and sale of each tranche of the
Series A Notes, the Offering Memorandum and other related matters as the Initial
Purchaser 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.
The Company shall have entered into the Senior Credit Facilities
and any Credit Documents and the Initial Purchaser shall have received
counterparts, conformed as executed, thereof.
The Company and the Senior Note Trustee shall have entered into
the Senior Note Indenture and the Initial Purchaser shall have received
counterparts, conformed as executed, thereof.
The Company and the Subordinated Note Trustee shall have entered
into the Subordinated Note Indenture and the Initial Purchaser shall have
received counterparts, conformed as executed, thereof.
The Company and the Initial Purchaser shall have entered into
each of the Senior Registration Rights Agreement and the Subordinated
Registration Rights Agreement and the Initial Purchaser shall have received
counterparts, conformed as executed, thereof.
The Initial Purchaser shall have received from Ernst & Young LLP,
independent certified public accountants, letters addressed to the Initial
Purchaser, substantially in the form heretofore approved by the Initial
Purchaser, and dated the date hereof and the Closing Date, (i) confirming that
they are independent auditors as required by the Securities Act and its Rules
and Regulations, (ii) stating, as of the date of each 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 two Business Days prior to the date of each letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by the letter delivered concurrently with this
Agreement and (iii) with respect to the letter delivered on the Closing Date,
16
confirming in all material respects the conclusions and findings set forth in
the letter delivered concurrently with this Agreement.
The Company shall have furnished to the Initial Purchaser a
certificate, dated as of the Closing Date, of a Vice President and its Chief
Financial Officer or Treasurer stating that:
The representations, warranties and agreements of the
Company (after giving effect to all materiality qualifiers therein) in
Section 1 are true and correct as of such Closing Date and giving effect to
the consummation of the transactions contemplated by this Agreement; the
Company has complied in all material respects with all its agreements
contained herein; and the conditions set forth in Sections 7(l) and 7(n)
has been fulfilled; and
They have examined the Preliminary Offering Memorandum and
the Offering Memorandum and, in their opinion, the Preliminary Offering
Memorandum as of its date and the Offering Memorandum as of its date and
the Closing Date did 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 the light of the circumstances under which they were made, not
misleading, and (ii) since the date of the Offering Memorandum, no event
has occurred which should have been set forth in a supplement or amendment
to the Offering Memorandum.
The Company shall not have sustained since the date of the latest
audited financial statements included in the Offering Memorandum 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 Material Adverse Effect 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 the Initial Purchaser, so material and
adverse as to make it impracticable or inadvisable to proceed with the payment
for and delivery of the Notes being delivered on such Closing Date on the terms
and in the manner contemplated in the Offering Memorandum.
Xxxxxx & Xxxxxxx shall have been furnished with such other
documents and opinions, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass upon the
matters referred to in this Agreement and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
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) under the
Securities Act and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities.
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 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
17
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) as to make it, in the judgment of
the Initial Purchaser, impracticable or inadvisable to proceed with the public
offering or delivery of each tranche of the Notes 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 Purchaser.
INDEMNIFICATION AND CONTRIBUTION.
The Company agrees to indemnify and hold harmless the Initial
Purchaser, its officers and employees and each person, if any, who controls the
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 either tranche of Notes), to which the
Initial Purchaser, 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 in any Preliminary
Offering Memorandum or the Offering Memorandum (in each case as amended or
supplemented), or (ii) the omission or alleged omission to state in any
Preliminary Offering Memorandum or the Offering Memorandum (in each case as
amended or supplemented) any material fact 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 the Initial Purchaser in connection with, or relating in any manner to,
either tranche of the Notes 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 clauses (i) or (ii) above
(provided that the Company 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 the Initial Purchaser through its gross negligence or willful misconduct);
and shall reimburse the Initial Purchaser and each such officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Initial Purchaser, 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 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 (in each case as amended or supplemented) in reliance upon
and in conformity with written information concerning the Initial Purchaser
furnished to the Company by or on behalf of the Initial Purchaser specifically
for inclusion therein; and provided further that with respect to any such untrue
statement or omission made in the Preliminary Offering Memorandum, the foregoing
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
18
sale of such Securities 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
may otherwise have to the Initial Purchaser or to any officer, employee or
controlling person of the Initial Purchaser.
The Initial Purchaser shall indemnify and hold harmless the
Company, its officers and employees, each of its 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 or any such 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 in any Preliminary Offering Memorandum or
the Offering Memorandum (in each case as amended or supplemented) or in any Blue
Sky application or (ii) the omission or alleged omission to state in any
Preliminary Offering Memorandum or the Offering Memorandum (in each case as
amended or supplemented) 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
the Initial Purchaser furnished to the Company by or on behalf of the Initial
Purchaser specifically for inclusion therein, and shall reimburse the Company
and any such director, officer, employee or controlling person for any legal or
other expenses reasonably incurred by the 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 the Initial Purchaser may otherwise have to the Company or any
such director, officer, employee or controlling person.
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, however, 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
the Initial Purchaser shall have the right to employ one counsel to represent
jointly the Initial Purchaser and its respective 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 Purchaser against the
Company under this Section 8 if, in the reasonable judgment of outside counsel
to the Initial Purchaser, it is advisable for the Initial Purchaser, 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
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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, 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.
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, 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 Purchaser on the other
from the offering of each tranche of the Series A Notes 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 Purchaser 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 Purchaser 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 each tranche of the Series A Notes 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 Purchaser with respect to each
tranche of the Series A Notes purchased under this Agreement, on the other hand,
bear to the total gross proceeds from the offering of each tranche of the Series
A Notes under this Agreement, in each case as set forth in the table on the
cover page of the Offering Memorandum. 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 Purchaser, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Initial Purchaser agree
that it would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation 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 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 any such action
or claim. Notwithstanding the provisions of this Section 8(d), the Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total price at which each tranche of the Series A Notes purchased
by it was resold to Eligible Purchasers exceeds the amount of any damages which
the 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 Purchaser confirms and the Company acknowledges that
the last paragraph on the cover page, the stabilization legend on page iii and
the information contained in the second, fifth, sixth, seventh, ninth, tenth and
thirteenth paragraphs of the section entitled "Plan of
20
Distribution" constitute the only information concerning the Initial Purchaser
furnished in writing to the Company by or on behalf of the Initial Purchaser
specifically for inclusion in the Preliminary Offering Memorandum or the
Offering Memorandum.
TERMINATION. The obligations of the Initial Purchaser hereunder
may be terminated by Xxxxxx Brothers Inc. by notice given to the Company prior
to delivery of and payment for each tranche of the Series A Notes if, prior to
that time, any of the events described in Sections 7(l), 7(n) or 7(o) shall have
occurred or if the Initial Purchaser shall decline to purchase either tranche of
the Series A Notes for any reason permitted under this Agreement.
REIMBURSEMENT OF INITIAL PURCHASER'S EXPENSES. If the Company
shall fail to tender either tranche of the Series A Notes for delivery to the
Initial Purchaser by reason of any failure, refusal or inability on the part of
the Company to perform any agreement on its part to be performed, or because any
other condition of the Initial Purchaser's obligations hereunder required to be
fulfilled by the Company is not fulfilled, the Company will reimburse the
Initial Purchaser for all reasonable out-of-pocket expenses (including the
reasonable fees and disbursements of its counsel) (accompanied by documentation)
incurred by the Initial Purchaser in connection with this Agreement and the
proposed purchase of each tranche of the Series A Notes, and upon demand the
Company shall pay the full amount thereof to the Initial Purchaser.
NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
if to the Initial Purchaser, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Syndicate Department (Fax: 212-526-
6588), with a copy to Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxx (Fax: 000-000-0000); and
if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to P&L Coal Holdings Corporation, 000 Xxxxxx Xxxxxx, Xx.
Xxxxx, Xxxxxxxx, 00000, Attention: General Counsel (Fax: 000-000-0000), with a
copy to Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention Rise X. Xxxxxx (Fax: 000-000-0000).
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 by the Initial
Purchaser. Any notice of a change of address or facsimile transmission number
must be given by the Company or by the Initial Purchaser, as the case may be, in
writing, at least three days in advance of such change.
PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchaser, the Company
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (i) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control the Initial Purchaser within the meaning of Section
15 of the Securities Act and (ii) the representations, warranties, indemnities
and agreements of the Initial Purchaser contained in this Agreement shall be
deemed to be for the benefit of directors, officers and employees of the Company
and any person controlling the Company 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
21
Section 12, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
SURVIVAL. The respective indemnities, representations, warranties
and agreements of the Initial Purchaser and the Company 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 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.
DEFINITION OF THE TERMS "BUSINESS DAY." For purposes of this
Agreement, "BUSINESS DAY" means any day on which the New York Stock Exchange,
Inc. is open for trading.
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
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.
[Signature page(s) follow]
1
If the foregoing correctly sets forth the agreement between the
Initial Purchaser and the Company, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
P&L Coal Holdings Corporation
By: _______________________________
Name:
Title:
Accepted:
Xxxxxx Brothers Inc.
By: ____________________________
Name:
Title:
EXHIBIT A
FORM OF OPINION OF XXXXXXX XXXXXXX & XXXXXXXX TO BE DELIVERED AS OF THE CLOSING
DATE
