Patriot Coal Corporation Debt Underwriting Agreement Standard Provisions
Exhibit
1.2
Patriot
Coal Corporation
Debt Underwriting Agreement
Standard Provisions
From time to time, Patriot Coal
Corporation, a Delaware corporation (the “Company”), may enter into one or more
underwriting agreements in the Form of Annex A hereto that incorporate by
reference these Standard Provisions (collectively with these Standard
Provisions, an “Underwriting Agreement”) and that provide for the sale of the
securities designated in such Underwriting Agreement (the “Securities”) to the
several Underwriters named therein (the “Underwriters”), for whom the
Underwriter(s) named therein shall act as representative (the “Representative”).
The Underwriting Agreement, including these Standard Provisions, is sometimes
referred to herein as this “Agreement”. The Securities will be issued
pursuant to an Indenture dated as of ______, 20__ (the “Indenture”) between the
Company and Wilmington Trust Company, as trustee (the “Trustee”).
1. Representations and
Warranties. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1.
(a) The
Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration
statement, as defined in Rule 405 (the file number of which will be set forth in
Schedule I to the Underwriting Agreement) on Form S-3, including a
related Base Prospectus, for registration under the Act of the offering and sale
of the Securities. Such Registration Statement, including any
amendments thereto filed prior to the Execution Time, became effective upon
filing. The Company may have filed with the Commission, as part of an amendment
to the Registration Statement or pursuant to Rule 424(b), one or more
preliminary prospectus supplements relating to the Securities, each of which has
previously been furnished to you. The Company will file with the
Commission a final prospectus supplement relating to the Securities in
accordance with Rule 424(b). As filed, such final prospectus
supplement shall contain all information required by the Act and the rules
thereunder, and, except to the extent the Representative shall agree in writing
to a modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any Preliminary Prospectus) as
the Company has advised you, prior to the Execution Time, will be included or
made therein. The Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a)(1)(x). The
initial Effective Date of the Registration Statement was not earlier than the
date three years before the Execution Time.
Any reference herein to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms “amend,” “amendment” or “supplement” with
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respect
to the Registration Statement, the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in
Section 20 hereof.
(b) On
each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing
Date (as defined herein), the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable requirements of the
Act, the Exchange Act and the Trust Indenture Act and the respective rules
thereunder; on each Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective Date and
on the Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
thereunder; and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Final Prospectus (together with any supplement thereto)
will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representative specifically for inclusion
in the Registration Statement or the Final Prospectus (or any supplement
thereto), it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
(c) The Disclosure Package, as of the
Execution Time, does not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8 hereof.
(d) At the time of filing the Registration
Statement, and on the date hereof, the Company was and is a “well-known seasoned issuer” as
defined in Rule 405. The Company agrees to pay the fees required by
the Commission relating to the Securities within the time required by Rule
456(b)(1) and otherwise in accordance with Rules 456(b) and
457(r).
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(e) At
the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2)) of the Securities, the Company was not and is not an
Ineligible Issuer (as defined in Rule 405), without taking account of any
determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an Ineligible Issuer.
(f) Each
Issuer Free Writing Prospectus and any final term sheet prepared and filed
pursuant to Section 5(b) hereto does not include any information that conflicts
with the information contained in the Registration Statement, including any
document incorporated therein by reference and any prospectus supplement deemed
to be a part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions from any Issuer
Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(g) The
Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Disclosure Package and the Final Prospectus will not be, an “investment company”
as defined in the Investment Company Act.
(h) The
Company is subject to and in compliance in all material respects with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act.
(i) The
Company has not paid or agreed to pay to any person any compensation for
soliciting another to purchase any securities of the Company (except as
contemplated in this Agreement).
(j) The
Company has not taken, directly or indirectly, any action designed to or that
has constituted or that might reasonably be expected to cause or result, under
the Exchange Act or otherwise, in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
(k) Each
of the Company and its subsidiaries has been duly incorporated or organized and
is validly existing as a corporation, limited liability company or other entity
in good standing under the laws of the jurisdiction in which it is formed with
full corporate power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the Disclosure
Package and the Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each jurisdiction
that requires such qualification, except for such jurisdictions where the
failure to so qualify or to be in good standing would not result in a material
adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business (a
“Material Adverse Effect”).
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(l) The
statements in the Preliminary Prospectus and the Final Prospectus listed in the
Underwriting Agreement fairly summarize the matters therein described in all
material respects.
(m) This
Agreement has been duly authorized, executed and delivered by the Company; the
Indenture has been duly authorized and, assuming due authorization, execution
and delivery thereof by the Trustee, when executed and delivered by the Company,
will constitute a legal, valid, binding instrument enforceable against the
Company in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors’ rights generally from time to time in effect and
to general principles of equity); and the Securities have been duly authorized,
and, when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchasers, will have
been duly executed and delivered by the Company and will constitute the legal,
valid and binding obligations of the Company entitled to the benefits of the
Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors’ rights
generally from time to time in effect and to general principles of
equity).
(n) No
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated herein or in the Indenture, except such as may be required under
the blue sky laws of any jurisdiction in which the Securities are offered and
sold.
(o) None
of the execution and delivery of the Indenture or this Agreement, the issuance
and sale of the Securities, or the consummation of any other of the transactions
herein, or the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or its subsidiaries pursuant to (i) the
charter or by-laws or comparable constituting documents of the Company or its
subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or its subsidiaries is a
party or bound or to which its or their property is subject; or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or its subsidiaries, or any of
its or their properties, except in the case of clause (ii) and (iii) for any
such conflict, breach, violation or imposition as would not result in a Material
Adverse Effect.
(p) The
consolidated historical financial statements and schedules of the Company and
its consolidated subsidiaries included or incorporated by reference in the
Disclosure Package and the Final Prospectus present fairly in all material
respects the financial condition, results of operations and cash flows of the
Company, as the case may be, as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of Regulation S-X
and have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis throughout the
periods involved (except as otherwise noted therein); and the
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selected
financial data set forth in the captions listed in the Underwriting Agreement in
the Preliminary Prospectus and the Final Prospectus fairly present, on the basis
stated in the Preliminary Prospectus and the Final Prospectus, the information
included or incorporated by reference therein.
(q) No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or its subsidiaries or
its property is pending or, to the knowledge of the Company, threatened that (i)
could reasonably be expected to have a Material Adverse Effect on the
performance of this Agreement or the Indenture or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected to have a
Material Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto).
(r) Each
of the Company and its subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted except where
the failure to so own or lease properties would not have a Material Adverse
Effect and except as set forth or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any amendment or supplement
thereto).
(s) None
of the Company or its subsidiaries is in violation or default of (i) any
provision of its charter or bylaws or comparable constituting documents; (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is subject;
or (iii) any statute, law, rule, regulation, judgment, order, decree or
requirement applicable to the Company or its subsidiaries, of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, except, with respect to clauses (ii) and (iii), as
would not result in a Material Adverse Effect.
(t) The
auditors specified in the Underwriting Agreement, who have certified certain
financial statements of the Company and/or its consolidated subsidiaries and
delivered their reports with respect to the audited consolidated financial
statements and schedules included, incorporated by reference and/or reflected in
the Disclosure Package and the Final Prospectus, are independent public
accountants with respect to the Company within the meaning of the
Act.
(u) There
are no stamp or other issuance or transfer taxes or duties or other similar fees
or charges required to be paid in connection with the execution and delivery of
this Agreement or the issuance or sale of the Securities.
(v) The
Company (i) has timely filed all applicable tax returns that are required to be
filed or has requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect and except as set
forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto)) and all such tax returns are
correct and complete in
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all
material respects, and (ii) has timely paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except for any such tax or assessment,
fine or penalty that is currently being contested in good faith or as would not
have a Material Adverse Effect and except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto).
(w) No
labor problem or dispute with the employees of the Company or its subsidiaries
exists or to the Company’s knowledge is threatened or imminent, and the Company
is not aware of any existing or imminent labor disturbance by the employees of
any of its or its subsidiaries’ principal suppliers, contractors or customers,
except as would not have a Material Adverse Effect, and except as set forth in
or contemplated in the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto).
(x) Each
of the Company and its subsidiaries is insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are engaged; all
policies of insurance and fidelity or surety bonds insuring the Company and its
subsidiaries or their respective businesses, assets, employees, officers and
directors are in full force and effect in all material respects; the Company and
its subsidiaries are in compliance in all material respects with the terms of
such policies and instruments; there are no material claims by the Company or
its subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause;
none of the Company or its subsidiaries has been refused any insurance coverage
sought or applied for; and none of the Company or its subsidiaries has any
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of any amendment
or supplement thereto).
(y) No
subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other subsidiary of the
Company, except as described in or contemplated in the Disclosure Package and
the Final Prospectus (exclusive of any amendment or supplement
thereto).
(z) Except
as set forth in the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto), the Company and its subsidiaries have 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
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own their
properties and to conduct their respective businesses in the manner described in
the Disclosure Package and the Final Prospectus, except to the extent that the
failure to have such Permits would not reasonably be expected to have a Material
Adverse Effect. Except as described in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendment or supplement thereto), (i)
the Company and its respective subsidiaries have performed all their material
obligations with respect to the Permits, (ii) to the best knowledge of the
Company, no event has occurred that allows, or after notice or lapse of time
would reasonably be expected to result in, the revocation or termination thereof
or in any other material impairment of the rights of the holder of any such
Permit, and (iii) none of the Company or any of its subsidiaries has received
any written notice of proceedings or potential proceedings relating to the
revocation or termination of the Permits, except to the extent that any such
failure to perform, revocation, termination, impairment or proceedings would not
have a Material Adverse Effect.
(aa) The
Company and its consolidated subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles in the United States and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company and its
consolidated subsidiaries’ internal controls over financial reporting were
effective as of the December 31st prior
to the date of the Underwriting Agreement and are effective as of the date
hereof. The Company is not aware of any material weakness in its or
its consolidated subsidiaries’ internal control over financial
reporting.
(bb) The
Company and its subsidiaries maintain “disclosure controls and procedures” (as
such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure
controls and procedures are effective.
(cc) The Company and its subsidiaries (i) are
in compliance with any and all applicable statutes, laws, rules, regulations,
judgments, orders, decrees or requirements relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”); (ii) have received and are in
compliance with all Permits required of them under applicable Environmental Laws
to conduct their respective businesses; (iii) have not received notice of any
actual or potential liability under any Environmental Law and have not been
named as a “potentially responsible party” under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended; and (iv) are not
aware of the presence, spill, discharge, disposal or release of or exposure to
hazardous or toxic substances, materials or wastes relating to their properties
or operations that would require investigation or remediation pursuant to
Environmental Laws, except, for each of clause (i), (ii), (iii) and (iv) above,
as would not, individually or in the aggregate, have a Material Adverse Effect,
or as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement
thereto).
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(dd) The
subsidiaries listed on Schedule V to the Underwriting Agreement attached hereto
are the only “significant subsidiaries” of the Company as defined in Rule 1-02
of Regulation S-X (the “Significant Subsidiaries”).
(ee) None
of the following events has occurred or exists: (i) a failure to
fulfill the obligations, if any, under the minimum funding standards of Xxxxxxx
000 xx xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974, as
amended (“ERISA”), and the regulations and published interpretations thereunder
with respect to a Plan, determined without regard to any waiver of such
obligations or extension of any amortization period; (ii) an audit or
investigation by the Internal Revenue Service, the U.S. Department of Labor, the
Pension Benefit Guaranty Corporation or any other U.S. federal or state
governmental agency or any foreign regulatory agency with respect to the
employment or compensation of employees by any of the Company or its
subsidiaries that could have a Material Adverse Effect; (iii) any breach of any
contractual obligation, or any violation of law or applicable qualification
standards, with respect to the employment or compensation of employees by the
Company or its subsidiaries that could have a Material Adverse
Effect. None of the following events has occurred or is reasonably
likely to occur: (i) a material increase in the aggregate amount of
contributions required to be made to all Plans in the current fiscal year of the
Company and its subsidiaries compared to the amount of such contributions made
in the most recently completed fiscal year of the Company and its subsidiaries;
(ii) a material increase in the “accumulated post-retirement benefit
obligations” (within the meaning of Statement of Financial Accounting Standards
106) for the current fiscal year of the Company and its subsidiaries compared to
the amount of such obligations in the most recently completed fiscal year of the
Company and its subsidiaries; (iii) any event or condition giving rise to a
liability under Title IV of ERISA that could have a Material Adverse Effect; or
(iv) the filing of a claim by one or more employees or former employees of the
Company or its subsidiaries, related to their employment that could have a
Material Adverse Effect. For purposes of this paragraph, the term
“Plan” means a plan (within the meaning of Section 3(3) of ERISA) subject to
Title IV of ERISA with respect to which the Company or its subsidiaries may have
any liability.
(ff) None
of the Company or its subsidiaries, or to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company or its
subsidiaries is aware of or has
taken any action, directly or indirectly, that would result in a violation by
such persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “FCPA”), including, without
limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA; and the Company and its
subsidiaries and, to the knowledge of the Company, its Affiliates have conducted their businesses in
compliance with the
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FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
(gg) The
operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting
requirements and money laundering statutes and the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
and its subsidiaries with respect to the Money Laundering Laws is pending or, to
the knowledge of the Company, threatened.
(hh) None
of the Company or its subsidiaries, or, to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company or any of its
subsidiaries is currently subject to any sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the offering of the
Securities hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(ii) There is and has been no failure on the
part of the Company and any of the Company’s directors or officers, in their
capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of
2002 and the rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(jj) The
qualitative and quantitative data regarding proven and probable coal reserves of
the Company included or incorporated by reference in the Disclosure Package and
the Final Prospectus (x) were derived in accordance with the procedures
described in the Disclosure Package and the Final Prospectus and all applicable
industry standards, including Industry Guide 7 under the Exchange Act, and (y)
have been reviewed by the professionals set forth in the Underwriting
Agreement.
Any
certificate signed by any officer of the Company and delivered to the
Representative or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and
Sale. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I to
the Underwriting Agreement the principal amount of the Securities set forth
opposite such Underwriter’s name in Schedule II to the Underwriting
Agreement.
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3. Delivery and
Payment. Delivery of and payment for the Securities shall be
made on the date and at the time specified in Schedule I to the
Underwriting Agreement or at such time on such later date not more than three
Business Days after the foregoing date as the Representative shall designate,
which date and time may be postponed by agreement between the Representative and
the Company or as provided in Section 9 hereof (such date and time of
delivery and payment for the Securities being herein called the “Closing
Date”). Delivery of the Securities shall be made to the
Representative for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representative of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of
the Securities shall be made through the facilities of The Depository Trust
Company unless the Representative shall otherwise instruct.
4. Offering by
Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the Final
Prospectus.
5. Agreements. The
Company agrees with the several Underwriters that:
(a) Prior
to the termination of the offering of the Securities, the Company will not file
any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the
Company has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably
object. The Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed in a form approved by the
Representative with the Commission pursuant to Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Representative
of such timely filing. The Company will promptly advise the
Representative (i) when the Final Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 424(b),
(ii) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (iii) of any request by the Commission or its staff for any
amendment of the Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any notice objecting to its use or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the institution
or threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or objection to the use of the Registration
Statement and, upon such issuance, occurrence or notice of objection, to obtain
as soon as possible the withdrawal of such stop order or relief from such
occurrence or objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using its best
efforts to have such amendment or new registration statement declared effective
as soon as practicable.
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(b) To
prepare a final term sheet, containing solely a description of final terms of
the Securities and the offering thereof, in the form approved by you and
attached as Schedule IV to the Underwriting Agreement and to file such term
sheet pursuant to Rule 433(d) within the time required by such
Rule.
(c) If,
at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b),
any event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made or the circumstances then prevailing not misleading, the Company
will (i) notify promptly the Representative so that any use of the Disclosure
Package may cease until it is amended or supplemented; (ii) amend or supplement
the Disclosure Package to correct such statement or omission; and (iii) supply
any amendment or supplement to you in such quantities as you may reasonably
request.
(d) If,
at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172), any event occurs as a result of which the
Final Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
at such time not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, including in connection with use or delivery of the Final
Prospectus, the Company promptly will (i) notify the Representative of any
such event, (ii) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an amendment or
supplement or new registration statement which will correct such statement or
omission or effect such compliance, (iii) use its best efforts to have any
amendment to the Registration Statement or new registration statement declared
effective as soon as practicable in order to avoid any disruption in use of the
Final Prospectus and (iv) supply any supplemented Final Prospectus to you
in such quantities as you may reasonably request.
(e) As
soon as practicable, the Company will make generally available to its security
holders and to the Representative an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158.
(f) The
Company will furnish to the Representative and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), as many copies of
each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto as the Representative may reasonably
request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
11
(g) The
Company will arrange, if necessary, for the qualification of the Securities for
sale by the Representative under the laws of such jurisdictions as the
Representative may designate and will maintain such qualifications in effect so
long as required for the distribution of the Securities; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so
subject.
(h) The
Company agrees that, unless it has or shall have obtained the prior written
consent of the Representative, and each Underwriter, severally and not jointly,
agrees with the Company that, unless it has or shall have obtained, as the case
may be, the prior written consent of the Company, it has not made and will not
make any offer relating to the Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by the Company with
the Commission or retained by the Company under Rule 433, other than a free
writing prospectus containing the information contained in the final term sheet
prepared and filed pursuant to Section 5(b) hereto; provided that the prior
written consent of the parties hereto shall be deemed to have been given in
respect of the Free Writing Prospectuses included in Schedule III to the
Underwriting Agreement and any electronic road show. Any such free
writing prospectus consented to by the Representative or the Company is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The
Company agrees that (x) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y)
it has complied and will comply, as the case may be, with the requirements of
Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including
in respect of timely filing with the Commission, legending and record
keeping.
(i) The
Company will not, without the prior written consent of the Representative,
offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into
any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any Affiliate
of the Company or any person in privity with the Company or any Affiliate of the
Company), directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act, any
debt securities issued or guaranteed by the Company (other than the Securities)
or publicly announce an intention to effect any such transaction, until the
Closing Date.
(j) The
Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result, under
the Exchange Act or otherwise, in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
(k) The
Company agrees to pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and
filing with the
12
Commission
of the Registration Statement (including financial statements and exhibits
thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free
Writing Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, the Final Prospectus and
each Issuer Free Writing Prospectus, and all amendments or supplements to any of
them, as may, in each case, be reasonably requested for use in connection with
the offering and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (iv) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Securities; (v) the registration of the Securities under the
Exchange Act and the listing of the Securities on the New York Stock Exchange,
if any; (vi) any registration or qualification of the Securities for offer
and sale under the securities or blue sky laws of the several states (including
filing fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (vii) any filings
required to be made with the Financial Industry Regulatory Authority, Inc.
(including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) the transportation and other
expenses incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; (ix) the fees
and expenses of the Company’s accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; and (x) all other
costs and expenses incident to the performance by the Company of its obligations
hereunder.
6. Conditions to the
Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time and the Closing Date, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The
Final Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); the final term sheet
contemplated by Section 5(b) hereto, and any other material required to be filed
by the Company pursuant to Rule 433(d) under the Act, shall have been filed with
the Commission within the applicable time periods prescribed for such filings by
Rule 433; and no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b) The
Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx LLP, counsel
for the Company, to furnish to the Representative its opinion and 10b-5
statement, dated the Closing Date and addressed to the Representative, in
substantially the form of Annex B hereto.
13
(c) The
Company shall have requested and caused Xxxxxx X. Xxxx, in-house counsel for the
Company, to furnish to the Representative his opinion, dated the Closing Date
and addressed to the Representative, in substantially the form of Annex C
hereto.
(d) The
Representative shall have received from the firm listed in the underwriting
agreement as counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representative, with respect to the issuance
and sale of the Securities, the Indenture, the Registration Statement, the
Disclosure Package, the Final Prospectus (together with any supplement thereto)
and other related matters as the Representative may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(e) The
Company shall have furnished to the Representative a certificate of the Company,
signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of
the Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Disclosure
Package, the Final Prospectus and any supplements or amendments thereto, and
this Agreement and that to the best of their knowledge:
(i) the
representations and warranties of the Company in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing Date, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(ii) no
stop order suspending the effectiveness of the Registration Statement or any
notice objecting to its use has been issued and no proceedings for that purpose
have been instituted or, to the Company’s knowledge, threatened;
and
(iii) since
the date of the most recent financial statements included in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto), there
has been no Material Adverse Effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement
thereto).
(f) At
the Execution Time and at the Closing Date, the Company shall have requested and
caused Ernst & Young LLP to furnish to the Representative letters, dated
respectively as of the Execution Time and as of the Closing Date in form and
substance satisfactory to the Representative.
(g) Subsequent
to the Execution Time or, if earlier, the dates as of which information is given
in the Disclosure Package (exclusive of any amendment thereof) and
14
the Final
Prospectus (exclusive of any amendment or supplement thereto), there shall not
have been (i) any adverse change or decrease specified in the letter or
letters referred to in paragraph (f) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto), the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment of
the Representative, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof),
the Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto).
(h) Subsequent
to the Execution Time, there shall not have been any decrease in the rating of
any of the Company’s debt securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of
the possible change.
(i) Prior
to the Closing Date, the Company shall have furnished to the Representative such
further information, certificates and documents as the Representative may
reasonably request.
If any of
the conditions specified in this Section 6 shall not have been fulfilled
when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representative. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in
writing.
The
documents required to be delivered by this Section 6 shall be delivered at
the office of the underwriters’ counsel set forth in the Underwriting
Agreement, on the Closing Date.
7. Reimbursement of
Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
the Representative on demand for all expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and
Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each
15
Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other U.S. federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Securities as originally
filed or in any amendment thereof, or in the Base Prospectus, any Preliminary
Prospectus or any other preliminary prospectus supplement relating to the
Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the
information contained in the final term sheet required to be prepared and filed
pursuant to Section 5(b) hereto, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a 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, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representative
specifically for inclusion therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representative specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the Underwriting Agreement
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus, the Final
Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, 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 commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided
16
in
paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party’s choice at the
indemnifying party’s expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, 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.
(d) In
the event that the indemnity provided in paragraph (a) or (b) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending the same) (collectively “Losses”) to which the Company and one or more
of the Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Underwriters severally shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be deemed to be
equal to the total
17
underwriting
discounts and commissions, in each case as set forth on the cover page of the
Final Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of an Underwriter shall have
the same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange Act
and each officer and director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an
Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II to the
Underwriting Agreement bears to the aggregate principal amount of Securities set
forth opposite the names of all the remaining Underwriters) the Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule II to
the Underwriting Agreement, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representative shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This
Agreement shall be subject to termination in the absolute discretion of the
Representative, by notice given to the Company prior to delivery of, and payment
for, the Securities, if at any time prior to such delivery and payment
(i) trading in the Company’s Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have
18
been
suspended or limited or minimum prices shall have been established on such
exchange, (ii) a banking moratorium shall have been declared either by U.S.
federal or New York State authorities or (iii) there shall have occurred
any outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representative, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by any Preliminary Prospectus or the
Final Prospectus (exclusive of any amendment or supplement
thereto).
11. Representations and
Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof shall survive
the termination or cancellation of this Agreement.
12. Notices. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to the Representative, will be mailed, delivered or telefaxed to (a) the
Representative at the address and fax details set forth in the Underwriting
Agreement and (b) Underwriter’s counsel at the address and fax details set forth
in the Underwriting Agreement; or, if sent to the Company, will be mailed,
delivered or telefaxed to Patriot Coal Corporation (fax no.: (000) 000-0000) and
confirmed to it at Patriot Coal Corporation, 00000 Xxxxx Xxxxxxxxx, Xxxxx 000,
Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxx, with a copy to Xxxxx Xxxx
& Xxxxxxxx LLP, Attention: Xxxxx X. Xxxxxx, Esq. (fax no.: (000) 000-0000)
and confirmed to Xxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
13. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 8 hereof, and no other person
will have any right or obligation hereunder.
14. No Fiduciary Duty.
The Company hereby acknowledges that (a) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any Affiliate through which
it may be acting, on the other, (b) the Underwriters are acting as principals
and not as agents or fiduciaries of the Company and (c) the Company’s engagement
of the Underwriters in connection with the offering and the
process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Company agrees that it is solely responsible
for making its own judgments in connection with the offering (irrespective of
whether any of the Underwriters has advised or is currently advising the Company
on related or other matters). The Company agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or
respect, or owe an agency, fiduciary or similar duty to the Company, in
connection with such transaction or the process leading thereto.
19
15. Integration. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
16. Applicable
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
17. Waiver of Jury
Trial. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
18. Counterparts. This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
19. Headings. The
section headings used herein are for convenience only and shall not affect the
construction hereof.
20. Definitions. The
terms that follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall mean the U.S. Securities Act of 1933, as amended and the rules and
regulations of the Commission promulgated thereunder.
“Affiliate”
shall have the meaning specified in Rule 501(b) of Regulation D.
“Base
Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday
or a day on which banking institutions or trust companies are authorized or
obligated by law to close in New York City.
“Commission”
shall mean the Securities and Exchange Commission.
“Disclosure
Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus
used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule III to the Underwriting Agreement,
(iv) the final term sheet prepared
and filed pursuant to Section 5(b) hereto, if any, and (v) any other Free
Writing Prospectus that the parties hereto shall hereafter expressly agree in
writing to treat as part of the Disclosure Package.
“Effective
Date” shall mean each date and time that the Registration Statement, and any
post-effective amendment or amendments thereto became or becomes
effective.
“Exchange
Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
20
“Execution
Time” shall mean the date and time that the Underwriting Agreement is executed
and delivered by the parties hereto.
“Final
Prospectus” shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together
with the Base Prospectus.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Investment
Company Act” shall mean the U.S. Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission promulgated thereunder.
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary
Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing
of the Final Prospectus, together with the Base Prospectus.
“Registration
Statement” shall mean the registration statement referred to in
paragraph 1(a) above, including exhibits and financial statements and any
prospectus supplement relating to the Securities that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such registration
statement pursuant to Rule 430B, as amended on each Effective Date and, in the
event any post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so
amended.
“Regulation D”
shall mean Regulation D under the Act.
“Regulation
S-X” shall mean Regulation S-X under the Act.
“Rule
158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”,
“Rule 424”, “Rule 430B” and “Rule 433” refer to such rules under the
Act.
“Trust
Indenture Act” shall mean the U.S. Trust Indenture Act of 1939, as amended and
the rules and regulations of the Commission promulgated thereunder.
21
ANNEX
A
[FORM OF
UNDERWRITING AGREEMENT]
Underwriting
Agreement
[__________],
20[__]
|
To
the Representative named in Schedule I hereto of the several
Underwriters named in Schedule II
hereto
|
Ladies
and Gentlemen:
Patriot
Coal Corporation, a corporation organized under the laws of Delaware (the
“Company”), proposes to sell (such sale, the “Offering”) to the several
underwriters named in Schedule II hereto (the “Underwriters”), for whom you
(the “Representative”) are acting as representative, the principal amount of its
securities identified in Schedule I hereto (the “Securities”), to be issued
under an indenture (the “Base Indenture”) dated as of ______, 20__, as amended
by a [insert supplemental indenture number] supplemental indenture dated
_______, 20__ (the “[insert supplemental indenture number] Supplemental
Indenture”) between the Company and Wilmington Trust Company, as trustee (the
“Trustee”, and the Base Indenture as amended by the [insert supplemental
indenture number] Supplemental Indenture the “Indenture”).
To the
extent there are no additional Underwriters listed on Schedule I other than
you, the term Representative as used herein shall mean you, as Underwriter, and
the terms Representative and Underwriter shall mean either the singular or
plural as the context requires.
Subject
to the terms and conditions and in reliance upon the representations and
warranties set forth herein and in the Company’s Debt Underwriting Agreement
Standard Provisions filed as Exhibit 1.2 to the Company’s Form S-3 dated
February 24, 2010 (the “Standard Provisions”), the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I to
the Underwriting Agreement the principal amount of the Securities set forth
opposite such Underwriter’s name in Schedule II to the Underwriting
Agreement.
Schedule
III hereto contains the Free Writing Prospectuses, if any, that shall be
included in the Disclosure Package and to which the parties hereto have provided
their consent for use pursuant to Section 5(h) of the Standard
Provisions.
Schedule
IV hereto contains the final term sheet prepared for the Offering.
Schedule
V hereto contains a list of the Company’s Significant Subsidiaries.
22
[LIST OF
PROVISIONS AND DETAILS SPECIFIC TO THE OFFERING INCLUDING DETAILS WITH RESPECT
TO LANGUAGE REQUIRED BY THE STANDARD PROVISIONS, INCLUDING: THE STATEMENTS
REFERRED TO IN SECTION 1(L), THE CAPTIONS REFERRED TO IN SECTION 1(P), THE
PROFESSIONALS REFERRED TO IN SECTION 1(JJ), THE FIRM REFERRED TO IN SECTION
6(D), THE STATEMENTS REFERRED TO IN SECTION 8(B), THE NOTICE INFORMATION FOR THE
REPRESENTATIVE REFERRED TO IN SECTION 12 AND THE CAPTIONS REFERRED TO IN OPINION
2 OF THE OPINION OF COMPANY COUNSEL]
All
provisions contained in the Standard Provisions are incorporated by reference
herein in their entirety, except as explicitly amended by this Underwriting
Agreement (including if any term defined in such Standard Provisions is
otherwise defined herein), and shall be deemed to be a part of this Underwriting
Agreement to the same extent as if such provisions had been set forth in full
herein.
This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicate hereof, whereupon this letter
and your acceptance shall represent a binding agreement among the Company and
the several Underwriters.
23
Very
truly yours,
|
|||
Patriot
Coal Corporation
|
|||
By:
|
|||
Name:
|
|||
Title:
|
The
foregoing Underwriting Agreement is
hereby
confirmed and accepted
as of the
date specified in
Schedule I
hereto.
[Representative]
By:
|
[Representative]
|
By:
|
|||
Name:
|
|||
Title:
|
For
themselves and the other
several
Underwriters, if any,
named in
Schedule II to the
foregoing
Underwriting Agreement.
24
SCHEDULE I
Underwriting
Agreement dated
Registration
Statement No.
Representative(s):
Title,
Purchase Price and Description of Securities:
Title:
Principal
amount:
Purchase
price (include accrued
interest
or amortization, if
any):
Sinking
fund provisions:
Redemption
provisions:
Other
provisions:
Closing
Date, Time and
Location: ,
20 at 10:00 a.m. at [name and address of Underwriters’
counsel]
Type of
Offering:
Modification
of items to be covered by the letter from
Ernst
& Young LLP delivered pursuant to
Section
6(f) at the Execution Time:
25
SCHEDULE II
Underwriters
|
Principal
Amount
of Securities
to
be
Purchased
|
|||
$ | ||||
Total
|
$ |
26
SCHEDULE III
Schedule
of Free Writing Prospectuses included in the Disclosure Package
[list all
FWPs included in the Disclosure Package]
27
SCHEDULE
IV
Issuer:
|
Patriot
Coal Corporation
|
Security
Type:
|
[ ]
|
Size:
|
US$[ ]
|
Maturity:
|
[ ]
|
Coupon:
|
[ ]%
per annum, accruing from
[ ]
|
Price
to Public:
|
[ ]%
of face amount
|
Yield
to maturity:
|
[ ]%
|
Spread
to Benchmark Treasury:
|
[ ]
|
Benchmark
Treasury:
|
[ ]
|
Benchmark
Treasury Price and Yield:
|
[ ]
|
Interest
Payment Dates:
|
[ ]
and
[ ],
commencing
[ ]
|
Redemption:
|
[ ]
|
Trade
Date:
|
[ ]
|
Settlement
Date:
|
[ ]
|
Ratings:
|
[ ]
|
Underwriters:
|
[ ]
|
28
SCHEDULE
V
List of
Significant Subsidiaries
[list all
Significant Subsidiaries]
29
ANNEX
B
[FORM OF
OPINION FOR OUTSIDE COUNSEL OF THE COMPANY]
[date]
[Name[s]
of managing underwriter[s]]
|
as
Representative of the several Underwriters named
in
|
|
Schedule
II to the Underwriting Agreement referred to
below
|
[c/o][[name
of lead manager]]
[address
of lead manager]
Ladies
and Gentlemen:
We have
acted as special counsel for Patriot Coal Corporation, a Delaware corporation
(the “Company”), in connection with the Underwriting Agreement dated _______,
20__ (the “Underwriting Agreement”) with you and the other several Underwriters
named in Schedule II thereto under which you and such other Underwriters have
severally agreed to purchase from the Company $[insert principal amount]
aggregate principal amount of its [designation of security] (the
“Securities”). The Securities are to be issued pursuant to the
provisions of the Indenture dated as of ______, 20__ (the “Base Indenture”), as
amended by a [insert supplemental indenture number] supplemental indenture dated
_______, 20__ (the “[insert supplemental indenture number] Supplemental
Indenture”) between the Company and Wilmington Trust Company, as trustee (the
“Trustee”). The Base Indenture as amended by the [insert supplemental
indenture number] Supplemental Indenture is hereinafter referred to as the
“Indenture”.
We have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary or advisable for the
purpose of rendering this opinion.
We have
also participated in the preparation of the Company’s registration statement on
Form S-3 (File No. 333-[ ]) [and Amendments Nos. _____ thereto] (including the
documents incorporated by reference therein (the “Incorporated Documents”))
filed with the Securities and Exchange Commission (the “Commission”) pursuant to
the provisions of the Securities Act of 1933, as amended (the “Act”), relating
to the registration of securities (the “Shelf Securities”) to be issued from
time to time by the Company and have participated in the preparation of the
preliminary prospectus supplement dated _______, 20__ (the “Preliminary
Prospectus Supplement”) relating to the Securities, [list free writing
prospectuses, if any, that form part of the Disclosure Package as defined in the
Underwriting Agreement] and the prospectus supplement dated _________, 20__
relating to the Securities (the “Prospectus Supplement”). In
addition, we have examined evidence that the registration statement [as so
amended] was declared effective under the Act and the Indenture qualified under
the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), on
[insert date of effectiveness]. The registration statement as amended
at the date of the Underwriting Agreement, including the Incorporated Documents
and the information deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to
as the “Registration Statement”, and the related prospectus (including the
Incorporated Documents) dated
30
____________,
20__ relating to the Shelf Securities is hereinafter referred to as the “Basic
Prospectus.” The Basic Prospectus, as supplemented by the Prospectus
Supplement, in the form first used to confirm sales of the Securities (or in the
form first made available by the Company to the Underwriters to meet requests of
purchasers of the Securities under Rule 173 under the Act), is hereinafter
referred to as the “Prospectus”.
We have
assumed the conformity of the documents filed with the Commission via the
Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), except for
required XXXXX formatting changes, to physical copies of the documents submitted
for our examination.
Capitalized
terms used but not otherwise defined herein are used as defined in the
Underwriting Agreement.
Based
upon the foregoing, we are of the opinion that:
1. The
Indenture has been duly authorized, executed and delivered by the Company and is
a valid and binding agreement of the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally, concepts of reasonableness and equitable principles
of general applicability. [APPLICABLE CARVE-OUTS TO BE ADDED IF
REQUIRED BASED UPON SUPPLEMENTAL INDENTURES.]
2. The
Securities, when executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will be valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally, concepts of
reasonableness and equitable principles of general applicability, and will be
entitled to the benefits of the Indenture pursuant to which such Securities are
to be issued. [APPLICABLE CARVE OUTS TO BE ADDED IF REQUIRED BASED
UPON SPECIFIC TERMS OF THE SECURITIES.]
3. The
Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
4. The
Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended.
5. [Except
as disclosed in the Prospectus, t][T]he execution and delivery by the Company
of, and the performance by the Company of its obligations under, the Indenture,
the Securities and the Underwriting Agreement (collectively, the “Documents”)
will not contravene (i) any provision of the laws of the State of New York or
any federal law of the United States of America that in our experience is
normally applicable to general business corporations in relation to transactions
of the type contemplated by the Documents, or the General Corporation Law of the
State of Delaware provided that we express no opinion as to federal or state
securities laws, (ii) the certificate of incorporation or by-laws of the
Company, or (iii) any agreement that is an exhibit to the Registration
Statement.
31
6. No
consent, approval, authorization, or order of, or qualification with, any
governmental body or agency under the laws of the State of New York or any
federal law of the United States of America that in our experience is normally
applicable to general business corporations in relation to transactions of the
type contemplated by the Documents, or the General Corporation Law of the State
of Delaware is required for the execution, delivery and performance by the
Company of its obligations under the Documents, except such as may be required
under federal or state securities or Blue Sky laws as to which we express no
opinion.
We have
considered the statements included in the Prospectus under the captions
“Description of Debt Securities” and “[Description of the Securities]” insofar
as they summarize provisions of the Indenture and the Securities. In
our opinion, such statements fairly summarize these provisions in all material
respects.
In
rendering the opinions in paragraphs (1) thru (3) above, we have assumed that
each party to the Documents has been duly incorporated and is validly existing
and in good standing under the laws of the jurisdiction of its
organization. In addition, we have assumed that (i) the execution,
delivery and performance by each party thereto of each Document to which it is a
party, (a) are within its corporate powers, (b) do not contravene, or constitute
a default under, the certificate of incorporation or bylaws or other
constitutive documents of such party, (c) require no action by or in respect of,
or filing with, any governmental body, agency or official and (d) do not
contravene, or constitute a default under, any provision of applicable law or
regulation or any judgment, injunction, order or decree or any agreement or
other instrument binding upon such party, provided that we make no such
assumption to the extent that we have specifically opined as to such matters
with respect to the Company, and (ii) each Document (other than the Underwriting
Agreement) is a valid, binding and enforceable agreement of each party thereto,
(other than as expressly covered above in respect of the Company).
We are
members of the Bar of the State of New York, and the foregoing opinion is
limited to the laws of the State of New York, the federal laws of the United
States of America and the General Corporation Law of the State of Delaware,
except that we express no opinion as to any law, rule or regulation that is
applicable to the Company, the Documents or such transactions solely because
such law, rule or regulation is part of a regulatory regime applicable to any
party to any of the Documents or any of its affiliates due to the specific
assets or business of such party or such affiliate.
This
opinion is rendered solely to you and the other several Underwriters in
connection with the Underwriting Agreement. This opinion may not be
relied upon by you for any other purpose or relied upon by any other person
(including any person acquiring Securities from the several Underwriters) or
furnished to any other person without our prior written consent.
Very
truly yours,
|
32
[FORM OF
10B-5 STATEMENT OF OUTSIDE COUNSEL FOR THE COMPANY]
Form
of 10b-5 Statement of Outside Counsel for the Company
[date]
[Name[s]
of managing underwriter[s]]
|
as
Representative of the several Underwriters named
in
|
|
Schedule
II to the Underwriting Agreement referred to
below
|
[c/o][[name
of lead manager]]
[address
of lead manager]
Ladies
and Gentlemen:
We have
acted as special counsel for Patriot Coal Corporation, a Delaware corporation
(the “Company”), in connection with the Underwriting Agreement dated _______,
20__ (the “Underwriting Agreement”) with you and the other several Underwriters
named in Schedule II thereto under which you and such other Underwriters have
severally agreed to purchase from the Company $[insert principal amount]
aggregate principal amount of its [designation of security] (the
“Securities”). The Securities are to be issued pursuant to the
provisions of the Indenture dated as of ______, 20__ (the “Base Indenture”), as
amended by a [insert supplemental indenture number] supplemental indenture dated
_______, 20__ (the “[insert supplemental indenture number] Supplemental
Indenture”) between the Company and Wilmington Trust Company, as trustee (the
“Trustee”). The Base Indenture as amended by the [insert supplemental
indenture number] Supplemental Indenture is hereinafter referred to as the
“Indenture”.
We also
have participated in the preparation of the Company’s registration statement on
Form S-3 (File No. 333- [ ]) [and Amendments Nos. _____ thereto] (including the
documents incorporated by reference therein (the “Incorporated Documents”))
filed with the Securities and Exchange Commission (the “Commission”) pursuant to
the provisions of the Securities Act of 1933, as amended (the “Act”), relating
to the registration of securities (the “Shelf Securities”) to be issued from
time to time by the Company and have participated in the preparation of the
preliminary prospectus supplement dated _______, 20__ (the “Preliminary
Prospectus Supplement”) relating to the Securities, [list free writing
prospectuses, if any, that form part of the Disclosure Package as defined in the
Underwriting Agreement] and the prospectus supplement dated _________, 20__
relating to the Securities (the “Prospectus Supplement”). The
registration statement as amended at the date of the Underwriting Agreement,
including the Incorporated Documents and the information deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430B
under the Act, is hereinafter referred to as the “Registration Statement”, and
the related prospectus (including the Incorporated Documents) dated
____________, 20__ relating to the Shelf Securities is hereinafter referred to
as the “Basic Prospectus.” The Basic Prospectus, as supplemented by
the Preliminary Prospectus Supplement, together with the [free writing
prospectus[es] set forth in Schedule III to the Underwriting Agreement for the
Securities] are hereinafter called the “Disclosure Package”. The
Basic Prospectus, as supplemented by the Prospectus Supplement, in the form
first used to confirm sales of the Securities (or in the form first made
available by the Company to the Underwriters to
33
meet
requests of purchasers of the Securities under Rule 173 under the Act), is
hereinafter referred to as the “Prospectus”.
We have
assumed the conformity of the documents filed with the Commission via the
Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), except for
required XXXXX formatting changes, to physical copies of the documents submitted
for our examination.
The primary purpose of our professional
engagement was not to establish or confirm factual matters or financial,
accounting or quantitative information (including information with
respect to proven and probable coal reserves). Furthermore,
many determinations
involved in the preparation of the Registration Statement, the Disclosure
Package and the Prospectus are of a wholly or partially non-legal character or
relate to legal matters outside the scope of our opinion separately delivered to
you today in respect of
certain matters under the laws of the State of New York, the federal laws
of the United States of America and the General Corporation Law of the State of
Delaware. As a result,
we are not passing upon,
and do not assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement, the
Disclosure Package or the Prospectus, and we have not ourselves checked the
accuracy, completeness or fairness of, or otherwise verified, the information
furnished in such documents
(except to the extent
expressly set forth in our opinion letter separately delivered to you
today as to statements
included in the Prospectus under the captions “Description of Debt
Securities” and “[Description of the Securities]”). However, in the course of
our acting as counsel to the Company in connection with the preparation of
the Registration Statement,
the Disclosure Package and the Prospectus, we have generally reviewed and discussed
with your representatives and your counsel and with certain officers and employees
of, and independent public accountants for, the Company the information
furnished, whether or not subject to our check and
verification. We
have also reviewed and relied upon certain corporate records and documents,
letters from counsel and accountants and oral and written statements of officers
and other representatives of the Company and others as to the existence and
consequence of certain factual and other matters.
Capitalized
terms used but not otherwise defined herein are used as defined in the
Underwriting Agreement.
On the basis of the information gained
in the course of the performance of the services rendered above, but without
independent check or verification except as stated above:
(i) the Registration Statement and the
Prospectus appear on their face to be appropriately responsive in all material
respects to the requirements of the Act and the applicable rules and regulations
of the Commission thereunder; and
(ii) nothing has come to our attention
that causes us to believe that, insofar as is relevant to the offering
of the Securities:
(a) the Registration Statement or the
prospectus included therein, on the date of the Underwriting
Agreement, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading,
34
(b) at the Execution Time, the Disclosure Package contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or
(c) the Prospectus as of the date of the Underwriting
Agreement or as of the date
hereof contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In providing this letter to you and the
other several Underwriters,
we have not been called to pass upon, and we express no view regarding, the financial statements or financial
schedules or other financial or accounting data or statements regarding proven and
probable coal reserves included in the Registration Statement,
the Disclosure Package, the Prospectus, or the Statement of Eligibility of
the Trustee on Form T-1. In addition, we express no view as to the conveyance of the Disclosure
Package or the information contained therein to investors.
This
letter is delivered solely to you and the other several Underwriters in
connection with the Underwriting Agreement. This letter may not be
relied upon by you for any other purpose or relied upon by any other person
(including any person acquiring Securities from the several Underwriters) or
furnished to any other person without our prior written consent.
Very
truly yours,
|
35
ANNEX
C
[FORM OF
OPINION OF COMPANY COUNSEL]
[date]
[Name[s]
of managing underwriter[s]]
|
as
Representative of the several Underwriters named
in
|
|
Schedule
II to the Underwriting Agreement referred to
below
|
[c/o][[name
of lead manager]]
[address
of lead manager]
Ladies
and Gentlemen:
I, Xxxxxx
X. Xxxx, am Senior Vice President-Law and Administration, General Counsel and
Secretary of Patriot Coal Corporation, a Delaware corporation (the “Company”).
This opinion is delivered in connection with the Underwriting Agreement dated
_______, 20__ (the “Underwriting Agreement”) with you and the other several
Underwriters named in Schedule II thereto under which you and such other
Underwriters have severally agreed to purchase from the Company $[insert
principal amount] aggregate principal amount of its [designation of security]
(the “Securities”). The Securities are to be issued pursuant to the
provisions of the Indenture dated as of ______, 20__ (the “Base Indenture”), as
amended by a [insert supplemental indenture number] supplemental indenture dated
_______, 20__ (the “[insert supplemental indenture number] Supplemental
Indenture”) between the Company and Wilmington Trust Company, as trustee (the
“Trustee”). The Base Indenture as amended by the [insert supplemental
indenture number] Supplemental Indenture is hereinafter referred to as the
“Indenture”.
I have
examined originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as I have deemed necessary or advisable for the
purpose of rendering this opinion.
Capitalized
terms used but not otherwise defined herein are used as defined in the
Underwriting Agreement.
Based
upon the foregoing, I am of the opinion that:
1. Each
of the Company and the Significant Subsidiaries listed on Schedule V to the
Underwriting Agreement (individually, a “Significant Subsidiary” and
collectively, the “Significant Subsidiaries”) has been duly incorporated or
organized and is validly existing as a corporation, limited liability company or
other entity in good standing under the laws of the jurisdiction in which it is
formed, with full corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in the
Disclosure Package and the Final Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except for such jurisdictions
where the failure to so qualify or to be in good standing would not result in a
Material Adverse Effect.
36
2. There
is no pending or, to my knowledge, threatened action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of the Significant Subsidiaries or its or their
property that (a) is within the scope of Item l03 of Regulation S-K under the
Securities Act and (b) is not described in the Disclosure Package and the Final
Prospectus; and the statements in the Preliminary Prospectus and the Final
Prospectus under the headings listed in the Underwriting Agreement fairly
summarize the matters therein described in all material respects.
3. Neither
the execution and delivery of the Indenture or the Underwriting Agreement, the
issuance and sale of the Securities, nor the consummation of any other of the
transactions therein contemplated, nor the fulfillment of the terms thereof,
will conflict with, result in a breach or violation of, or imposition of any
lien, charge or encumbrance upon any property or asset of the Company or of any
of its Significant Subsidiaries pursuant to any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of the Significant
Subsidiaries of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company, any of
the Significant Subsidiaries or any of their respective properties (including
any mining or environmental law, rule or regulation) or the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which the Company or its Significant Subsidiaries is a party or bound or to
which its or their property is subject.
The
foregoing opinion is limited to the federal laws of the United States of America
and the General Corporation Law of the State of Delaware.
This
opinion is rendered solely to you in connection with the Underwriting Agreement.
This opinion may not be relied upon by you for any other purpose or relied upon
by any other person (including any person acquiring Securities from the several
Underwriters) or furnished to any other person without my prior written
consent.
|
||
Title:
Senior Vice President - Law &
Administration,
General Counsel
and
Secretary
|
37