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8-K - FORM 8-K - Patriot Coal CORP | c57818e8vk.htm |
Exhibit 1.1
EXECUTION VERSION
Underwriting Agreement
April 28, 2010
To the Representatives 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 Representatives) are acting as representatives,
the principal amount of its 8.250% Senior Notes due 2018 set forth in Schedule I hereto (the
Securities). The Securities will be guaranteed on an unsecured senior basis by each subsidiary
of the Company that is a guarantor (as identified on the signature page hereto, collectively, the
Guarantors) under the Companys credit agreement, dated as of October 31, 2007, as amended from
time to time (the Credit Agreement). The Securities will be issued under an indenture (the Base
Indenture), to be dated as of the Closing Date (as defined below), between the Company and
Wilmington Trust Company, as trustee (the Trustee), as amended by a first supplemental indenture
(the First Supplemental Indenture) and a second supplemental indenture (the Second Supplemental
Indenture), each to be dated as of the Closing Date, among the Company, the Guarantors and the
Trustee (the Base Indenture, as amended by the First Supplemental Indenture and the Second
Supplemental Indenture, the Indenture).
To the extent there are no additional Underwriters listed on Schedule II other than you, the
term Representatives as used herein shall mean you, as Underwriters, and the terms Representatives
and Underwriters 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 Companys Debt Underwriting Agreement Standard Provisions, as amended
on the date hereof and attached as Exhibit A hereto (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 hereto the principal amount of the
Securities set forth opposite such Underwriters name in Schedule II hereto.
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.
1
Schedule V hereto contains a list of the Companys Significant Subsidiaries.
The statements referred to in Section 1(l) of the Standard Provisions are
BusinessRegulatory Matters, BusinessEnvironmental Laws, as supplemented in each case by the
Companys Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, which is incorporated
by reference into the Preliminary Prospectus and the Final Prospectus, Description of Notes and
Material U.S. Federal Income Tax Considerations.
The captions referred to in Section 1(p) of the Standard Provisions are SummarySummary
Historical Consolidated Financial and Operating Data.
The professionals referred to in Section 1(jj) of the Standard Provisions are Marshall Miller
& Associates and Weir International, Inc., in each case with respect to a portion of the estimates
of the Companys proven and probable coal reserves.
The firm referred to in Section 6(d) of the Standard Provisions is Cleary Gottlieb Steen &
Hamilton LLP.
The statements referred to in Section 8(b) of the Standard Provisions are set forth in (i) the
last paragraph of the cover page regarding delivery of the Securities and (ii) under the caption
Underwriting the third paragraph relating to the terms of the offering and the seventh and eighth
paragraph relating to stabilization and syndicate covering transactions.
The notice information for the Representatives referred to in Section 12 of the Standard
Provisions is (a) Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York, 10013,
Attn.: General Counsel, Fax: (212) 816 7912; (b) Banc of America Securities LLC, One Bryant Park,
New York, NY 10036, Attn.: Legal Department, Fax: (212) 901-7897; and (c) Barclays Capital Inc.,
745 Seventh Avenue, New York, New York 10019, Attn.: Syndicate Registration, Fax: (646) 834-8133.
The notice information for Underwriters Counsel referred to in Section 12 of the Standard
Provisions is Cleary Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, NY 10006 Attn.:
David Lopez, Fax: (212) 225-3999.
The captions referred to in opinion 2 of the opinion of Company counsel are Item 1.
BusinessRegulatory Matters and Item 3Legal Proceedings set out in the Companys Annual
Report on Form 10-K for the year ended December 31, 2009, as supplemented in each case by the
Companys Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, each of which is
incorporated by reference into the Preliminary Prospectus and Final Prospectus.
All provisions contained in the Standard Provisions are incorporated by reference herein in
their entirety, except as explicitly amended by this Underwriting
2
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.
[Remainder of this page intentionally left blank]
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Very truly yours, Patriot Coal Corporation |
||||
By: | /s/ Joseph W. Bean | |||
Name: | Joseph W. Bean | |||
Title: | Senior Vice President Law and Administration, General Counsel and Corporate Secretary |
|||
GUARANTORS:
Affinity Mining Company
|
Kanawha River Ventures II, LLC | |
Apogee Coal Company, LLC
|
Kanawha River Ventures III, LLC | |
Appalachia Mine Services, LLC
|
KE Ventures, LLC | |
Beaver Dam Coal Company, LLC
|
Little Creek LLC | |
Big Eagle Rail, LLC
|
Logan Fork Coal Company | |
Big Eagle LLC
|
Magnum Coal Company LLC | |
Black Stallion Coal Company, LLC
|
Magnum Coal Sales LLC | |
Black Walnut Coal Company
|
Martinka Coal Company, LLC | |
Bluegrass Mine Services, LLC
|
Midland Trail Energy LLC | |
Brook Trout Coal, LLC
|
Midwest Coal Resources II, LLC | |
Catenary Coal Company, LLC
|
Mountain View Coal Company, LLC | |
Central States Coal Reserves of
Kentucky, LLC
|
New Trout Coal Holdings II, LLC | |
Charles Coal Company, LLC
|
North Page Coal Corp. | |
Cleaton Coal Company
|
Ohio County Coal Company, LLC | |
Coal Clean LLC
|
Panther LLC | |
Coal Properties, LLC
|
Patriot Coal Company, L.P. | |
Coal Reserve Holding Limited
Liability Company No. 2
|
Patriot Coal Sales LLC | |
Colony Bay Coal Company
|
Patriot Leasing Company LLC | |
Cook Mountain Coal Company, LLC
|
Patriot Midwest Holdings, LLC | |
Coyote Coal Company LLC
|
Patriot Trading LLC | |
Dakota LLC
|
Patriot Ventures LLC | |
Day LLC
|
Pine Ridge Coal Company, LLC | |
Dixon Mining Company, LLC
|
Pond Creek Land Resources, LLC | |
Dodge Hill Holding JV, LLC
|
Pond Fork Processing LLC | |
Dodge Hill Mining Company, LLC
|
Remington Holdings LLC | |
Dodge Hill of Kentucky, LLC
|
Remington II LLC | |
Eastern Associated Coal, LLC
|
Remington LLC | |
Eastern Coal Company, LLC
|
Rivers Edge Mining, Inc. | |
Eastern Royalty LLC
|
Robin Land Company, LLC | |
Grand Eagle Mining, Inc.
|
Sentry Mining, LLC | |
HCR Holdings, LLC
|
Snowberry Land Company | |
Heritage Coal Company LLC
|
Speed Mining LLC |
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Highland Mining Company, LLC
|
Sterling Smokeless Coal Company, LLC | |
Highwall Mining LLC
|
TC Sales Company, LLC | |
Hillside Mining Company
|
The Presidents Energy Company LLC | |
Hobet Mining, LLC
|
Thunderhill Coal LLC | |
Indian Hill Company
|
Trout Coal Holdings, LLC | |
Infinity Coal Sales, LLC
|
Union County Coal Co., LLC | |
Interior Holdings, LLC
|
Viper LLC | |
IO Coal LLC
|
Weatherby Processing LLC | |
Jarrells Branch Coal Company
|
Wildcat, LLC | |
Jupiter Holdings LLC
|
Winchester LLC | |
Kanawha Eagle Coal, LLC
|
Winifrede Dock Limited Liability Company | |
Kanawha River Ventures I, LLC
|
Yankeetown Dock, LLC |
By: | /s/ Jacquelyn A. Jones | |||
Name: | Jacquelyn A. Jones | |||
Title: | Vice President |
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The foregoing Underwriting Agreement is hereby confirmed and accepted
as of the date specified in Schedule I hereto.
Citigroup Global Markets Inc.
By: | /s/ David Leland | |||
Name: | David Leland | |||
Title: | Director | |||
Banc of America Securities LLC |
||||
By: | /s/ Lex Maultsby | |||
Name: | Lex Maultsby | |||
Title: | Managing Director | |||
For themselves and the other several Underwriters, if any,
named in Schedule II to the foregoing Underwriting Agreement.
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SCHEDULE I
Underwriting Agreement dated April 28, 2010
Registration Statement No. 333-165052
Representatives: Citigroup Global Markets Inc. and Banc of America Securities LLC
Title, Purchase Price and Description of Securities:
Title: 8.250% Senior Notes due 2018
Principal amount of Securities: $250,000,000
Purchase price: 96.779%
Sinking fund provisions: None.
Redemption provisions:
At any time prior to April 30, 2014, we may redeem some or all of the notes at a redemption price
equal to 100% of the principal amount of the notes to be redeemed, plus accrued and unpaid interest
and an applicable premium.
At any time on or after April 30, 2014, we may redeem some or all of the notes at the
following redemption prices, plus accrued and unpaid interest to the redemption date:
12-month period commencing April 30 in year | Percentage | |||
2014 |
104.125 | % | ||
2015 |
102.063 | % | ||
2016 and thereafter |
100.000 | % |
In addition, we may on one or more occasions redeem up to 35% of the aggregate principal
amount of the notes prior to April 30, 2013 at a redemption price equal to 108.250% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the redemption date,
with the net cash proceeds of certain equity offerings.
Change of Control Offer:
Offer to repurchase at 101% of principal amount plus accrued interest to repurchase date
upon the occurrence of certain change of control events.
Closing
Date, Time and Location May 5, 2010 at 10:00 a.m. at
Cleary Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, NY 10006
Type of Offering: Underwritten Firm Commitment
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SCHEDULE II
Principal Amount of | ||||
Securities to be | ||||
Underwriters | Purchased | |||
Citigroup Global Markets Inc. |
$ | 96,000,000 | ||
Banc of America Securities LLC |
64,000,000 | |||
Barclays Capital Inc. |
40,000,000 | |||
Natixis Bleichroeder LLC |
10,000,000 | |||
Fifth Third Securities, Inc. |
10,000,000 | |||
SG Americas Securities, LLC |
10,000,000 | |||
Santander Investment Securities Inc. |
10,000,000 | |||
PNC Capital Markets LLC |
10,000,000 | |||
Total |
$ | 250,000,000 | ||
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SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package:
Final Term Sheet, dated April 28, 2010, substantially in the form of Schedule IV hereto
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SCHEDULE IV
Summary of Terms |
||||||
Issuer:
|
Patriot Coal Corporation | |||||
Issue:
|
Senior Notes | |||||
Distribution:
|
SEC Registered | |||||
Ratings:
|
B3 / B+ | |||||
Maturity:
|
April 30, 2018 | |||||
Principal Amount:
|
$ | 250,000,000 | ||||
Proceeds:
|
$ | 248,197,500 | ||||
Coupon:
|
8.250 | % | ||||
Yield:
|
8.375 | % | ||||
Spread:
|
497 b.p. | vs. TSY 3.875% due 5/18 | ||||
Price at Issue:
|
99.279 | % | ||||
Interest Payment Dates:
|
April 30 & October 30 | |||||
1st Interest Payment Date:
|
October 30, 2010 | |||||
Call Schedule:
|
Non-Callable until April 30, 2014 | |||||
April 30, 2014
|
104.125 | % | ||||
April 30, 2015
|
102.063 | % | ||||
April 30, 2016
|
100.000 | % | ||||
Equity Clawback:
|
35% at 108.250% prior to April 30, 2013 | |||||
10
Change of Control:
|
Investor put at 101% | |
Make Whole:
|
T + 50 b.p. | |
Denominations:
|
Minimum denominations of $2,000 and higher integral multiples of $1,000 | |
Bookrunners:
|
Citi, BAML, Barclays | |
Co-Managers:
|
Natixis, Fifth-Third, Société Générale, Santander, PNC | |
Trade Date:
|
April 28, 2010 | |
Settlement Date (T + 5):
|
May 5, 2010 | |
CUSIP:
|
70336TAC8 | |
ISIN#:
|
US70336TAC80 |
Patriot Coal Corporation has filed a registration statement (including a prospectus) with the Securities and Exchange Commission
(SEC) for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration
statement and other documents that Patriot Coal Corporation has filed with the SEC for more complete information about Patriot Coal
Corporation and this offering. You may get these documents for free by visiting the SEC Web site at www.sec.gov. Alternatively, the
issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it from
Citigroup, Brooklyn Army Terminal, 140 58th Street, 8th floor, Brooklyn, NY 11220 or by calling 718-765-6732; BofA Merrill Lynch
toll-free 800-294-1322; Barclays Capital Inc. toll-free 888-6035847.
11
SCHEDULE V
List of Significant Subsidiaries
Eastern Coal Company, LLC
Interior Holdings, LLC
Heritage Coal Company LLC
Coal Properties, LLC
Magnum Coal Company LLC
Trout Coal Holdings, LLC
New Trout Coal Holdings II, LLC
Patriot Coal Sales LLC
12
EXHIBIT A
Patriot Coal Corporation
Amended Debt Underwriting Agreement Standard Provisions
April 28, 2010
Patriot Coal Corporation, a Delaware corporation (the Company), has entered into the
foregoing underwriting agreement (the Underwriting Agreement) that incorporates by reference
these Standard Provisions and that provides for the sale of $250,000,000 aggregate principal amount
of its 8.250% Senior Notes due 2018 (the Securities) to the several Underwriters (the
Underwriters) named in the Underwriting Agreement, for whom the Underwriters named therein as
representatives shall act as representatives (the Representatives). The Underwriting Agreement,
including these Standard Provisions, is sometimes referred to herein as this Agreement. The
Securities will be guaranteed on an unsecured senior basis (the Guarantees) by each subsidiary of
the Company that is a guarantor under the Companys credit agreement, dated as of October 31, 2007,
as amended from time to time (collectively, the Guarantors). The Securities will be issued
pursuant to an indenture (the Base Indenture), as amended by a first supplemental indenture (the
First Supplemental Indenture) and a second supplemental indenture (the Second Supplemental
Indenture), in each case to be dated as of the Closing Date (as defined below), among the
Company, the Guarantors and Wilmington Trust Company, as trustee (the Trustee, and the Base
Indenture, as amended by the First Supplemental Indenture and the Second Supplemental Indenture,
the Indenture).
1. Representations and Warranties. The Company and the Guarantors represent and
warrant, jointly and severally, to, and agree 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 is 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
Representatives shall agree in writing to a modification, shall be in all substantive respects in
the form furnished to you
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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 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 Representatives 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.
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(c) (i) The Disclosure Package and (ii) each electronic road show, when taken together as a
whole with 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 Representatives 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).
(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 Representatives 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 and the Guarantors are 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.
15
(i) The Company and the Guarantors have 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 and the Guarantors have 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).
(l) The statements in the Preliminary Prospectus, as supplemented by the final term sheet
prepared and filed pursuant to Section 5(b) hereto, 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 and the
Guarantors; the Indenture has been duly authorized and, assuming due authorization, execution and
delivery thereof by the Trustee, when executed and delivered by the Company and the Guarantors,
will constitute a legal, valid, binding instrument enforceable against the Company and the
Guarantors 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); 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 Underwriters, 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); and the
Guarantees forming a part of the Indenture have been duly authorized and, when the Indenture has
been executed and delivered by the Company and the Guarantors and assuming due authorization,
execution and delivery thereof by the Trustee, will constitute the legal, valid and binding
obligations of the Guarantors enforceable against the Guarantors in accordance with their terms
(subject, as
16
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 have been obtained under the Act and the Trust Indenture Act or 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 the
Guarantors; (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 selected financial data in the Preliminary Prospectus and the Final Prospectus set forth in
the captions listed in the Underwriting Agreement 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).
17
(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) Ernst & Young LLP, 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 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 Companys 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
18
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 subsidiarys capital
stock, from repaying to the Company any loans or advances to such subsidiary from the Company or
from transferring any of such subsidiarys 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 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
19
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 managements 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 managements 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).
(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 Section 302 of the United States
Employee Retirement Income Security Act of 1974, as amended (ERISA), and the regulations and
published interpretations thereunder with respect to a Plan,
20
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) except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendment or supplement thereto), a material increase in
the accumulated post-retirement benefit obligations (within the meaning of applicable accounting
standards) 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
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)
21
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 Companys
directors or officers, in their capacities as such, to comply with any provision of the
Sarbanes-Oxley 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.
(kk) As of March 31, 2010, the aggregate book value of the assets (on an unconsolidated basis)
of the Company and the Guarantors that have been incorporated or organized in Delaware or West
Virginia account for more than 90% of the total consolidated assets of the Company.
Any certificate signed by any officer of the Company and delivered to the Representatives 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
Securities set forth opposite such Underwriters name in Schedule II to the Underwriting Agreement.
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
22
Agreement or at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may be postponed by
agreement between the Representatives 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 Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters through the Representatives 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 Representatives 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 Representatives with the Commission
pursuant to Rule 424(b) within the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Company will promptly advise the Representatives
(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.
23
(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 Representatives 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 Representatives of any such event,
(ii) prepare and file with the Commission, subject to the first 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 Representatives 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 Representatives 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
24
as the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale
by the Representatives under the laws of such jurisdictions as the Representatives may reasonably
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 and provided further that the
Company understands that within the United States the Underwriters will only make sales to
institutional investors. The Company will promptly advise the Representatives 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 initiation or threatening of any proceeding for such
purpose.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of
the Representatives, 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 Representatives 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 Citigroup Global Markets Inc.,
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
25
publicly announce an intention to effect any such transaction, until the 60th day
after the date of the Final Prospectus.
(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 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 not to exceed $15,000);
(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 Companys 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
26
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 Davis Polk & Wardwell LLP, counsel for the
Company, to furnish to the Representatives its opinion and 10b-5 statement, dated the Closing Date
and addressed to the Representatives, in substantially the form of Annex A hereto.
(c) The Company shall have requested and caused Joseph W. Bean and Elizabeth Power, in-house
counsel for the Company, to furnish to the Representatives his or her opinion, dated the Closing
Date and addressed to the Representatives, in substantially the form of Annex B and 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 Representatives, 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 Representatives 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 Representatives 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 Companys 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 amendment or supplement
thereto), there has been no Material Adverse Effect on the condition
27
(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 amendment or 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 Representatives letters, dated respectively as of the Execution
Time and as of the Closing Date in form and substance satisfactory to the Representatives.
(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
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), 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 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 Citigroup Global
Markets Inc., 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 Companys 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 caused the Credit Agreement to be
amended to substantially reflect the changes contemplated in the Disclosure Package and the Final
Prospectus. It is understood that this amendment of the Credit Agreement is also a condition to
the Companys obligation to sell the Securities.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such
further information, certificates and documents as the Representatives 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 Representatives
and counsel for the
28
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 Representatives. 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 Representatives
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 and the Guarantors, jointly and
severally, agree to indemnify and hold harmless each Underwriter, the directors, officers,
employees, Affiliates and agents of each 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, 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 agree 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 and the Guarantors 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 or the Guarantors
by or on behalf of any Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the Company or the
Guarantors may otherwise have.
29
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the
Company and the Guarantors, each of their directors, each of their officers, and each person who
controls the Company or the Guarantors within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company and the Guarantors to each Underwriter,
but only with reference to written information relating to such Underwriter furnished to the
Company or the Guarantors by or on behalf of such Underwriter through the Representatives
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 and the Guarantors acknowledge 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 in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying partys choice at the indemnifying partys 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
partys 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
30
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, the Guarantors 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 and the Guarantors 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, the
Guarantors 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 and the
Guarantors 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 and the Guarantors shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by the Company, and
benefits received by the Underwriters shall be deemed to be equal to the total 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 or the Guarantors 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, the Guarantors 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, Affiliate and agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company or the Guarantors within the meaning of
either the Act or the Exchange Act and each officer and director of the Company or the Guarantors
shall have the same rights to contribution as the Company and the Guarantors, subject in each case
to the applicable terms and conditions of this paragraph (d).
31
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 Representatives 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 Representatives, 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 Companys
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 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 Representatives, 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
the Guarantors or any of the officers, directors, employees, Affiliates, agents or controlling
persons referred to in Section 8
32
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 Representatives, will be mailed, delivered or telefaxed to (a) the
Representatives at the address and fax details set forth in the Underwriting Agreement and (b)
Underwriters counsel at the address and fax details set forth in the Underwriting Agreement; or,
if sent to the Company or the Guarantors, will be mailed, delivered or telefaxed to Patriot Coal
Corporation (fax no.: (314) 275-3656) and confirmed to it at Patriot Coal Corporation, 12312 Olive
Boulevard, Suite 400, St. Louis, Missouri 63141, Attention: Joseph W. Bean, with a copy to Davis
Polk & Wardwell LLP, Attention: Sarah E. Beshar, Esq. (fax no.: (212) 450-3800) and confirmed to
Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017.
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 arms-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 Companys 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.
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.
33
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.
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.
34
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, Rule 433, Rule 456, and Rule 457 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.
35
ANNEX A
[FORM OF OPINION FOR OUTSIDE COUNSEL OF THE COMPANY]
[date]
Citigroup Global Markets Inc.
Banc of America Securities LLC
as Representatives of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Banc of America Securities LLC
as Representatives of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
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 Notes). The
Notes are to be issued pursuant to the provisions of the Indenture
dated as of , 20___ (the
Base Indenture) between the Company and Wilmington Trust Company, as trustee (the Trustee), as
amended by a first supplemental indenture dated
, 20___ (the First Supplemental Indenture)
among the Company, the Guarantors parties thereto (the Guarantors) and the Trustee and a second
supplemental indenture dated
, 20___ (the Second Supplemental Indenture and together with
the First Supplemental Indenture, the Supplemental Indentures) among the Company, the Guarantors
and the Trustee. The Base Indenture as amended by the Supplemental Indentures is hereinafter
referred to as the Indenture. The Notes will be guaranteed by each of the Guarantors (the
Guarantees and, together with the Notes, the Securities).
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 Companys registration statement on Form
S-3 (File No. 333-165052) and post-effective Amendment No. 1 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), including
the Securities, to be issued from time to time by the Company and have participated in the
preparation of the
36
preliminary prospectus supplement dated April 26, 2010 (the Preliminary
Prospectus Supplement) relating to the Securities, the final term sheet set forth in Schedule IV
to 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 became effective under the Act and the Indenture qualified under the Trust
Indenture Act of 1939, as amended (the Trust Indenture Act), on February 24, 2010 with respect to
the Notes and April 26, 2010, as so amended, with respect to the Guarantees. To our knowledge, no
stop order suspending the effectiveness of the registration statement has been issued. 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
April 26, 2010 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 (EDGAR), except for required EDGAR 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 Base Indenture and the Supplemental Indentures have been duly authorized,
executed and delivered by the Company and assuming the due authorization, execution and delivery of
the Supplemental Indentures by each Guarantor, the Base Indenture and the Supplemental Indentures
are valid and binding agreements of the Company and each Guarantor, as applicable, 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; provided that we express no opinion as to the (x) validity, legally binding
effect or enforceability of any provision that permits holders to collect any portion of stated
principal amount upon acceleration of the Securities to the extent determined to constitute
unearned interest and (y) applicability (and if applicable, the effect) of Section 548 of the
United States Bankruptcy Code or any comparable provision of state law to the questions addressed
above or on the conclusions expressed with respect thereto. [APPLICABLE CARVE-OUTS TO BE ADDED IF
REQUIRED BASED UPON REVIEW OF SUPPLEMENTAL INDENTURES, INCLUDING REVIEWING WITH RESPECT TO STAY AND
USURY LAW WAIVER.]
37
2. The Notes 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 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 Notes are to be issued; provided that we express no opinion as to the (x) validity,
legally binding effect or enforceability of any provision that permits holders to collect any
portion of stated principal amount upon acceleration of the Notes to the extent determined to
constitute unearned interest and (y) applicability (and if applicable, the effect) of Section 548
of the United States Bankruptcy Code or any comparable provision of state law to the questions
addressed above or on the conclusions expressed with respect thereto. [APPLICABLE CARVE OUTS TO BE
ADDED IF REQUIRED BASED UPON SPECIFIC TERMS OF THE INDENTURE.]
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. The execution and delivery by the Company of, and the performance by the Company
of its obligations under, the Indenture, the Notes and the Underwriting Agreement (collectively,
and together with the Guarantees, the Documents) and the execution and delivery by each Guarantor
of, and the performance by each Guarantor of its obligations under, 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 of the Company or the by-laws of the Company, or (iii)
the Indenture dated as of May 28, 2008, by and between the Company, as issuer, and U.S. Bank
National Association, as trustee and the [Credit Agreement of the Company as amended] [BRACKETED
FOR PROPER TERMINOLOGY].
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 or each Guarantor of its respective 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.
38
We have considered the statements included in the Prospectus under the caption Description of
Notes insofar as they summarize provisions of the Indenture and the Securities. In our opinion,
such statements fairly summarize these provisions in all material respects. The statements
included in the Prospectus under the caption Material U.S. Federal Income Tax Considerations,
insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions
with respect thereto, fairly and accurately summarize the matters referred to therein 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 and each Guarantor).
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 or the Guarantors, 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, |
||||
39
[FORM OF 10B-5 STATEMENT OF OUTSIDE COUNSEL FOR THE COMPANY]
[date]
Citigroup Global Markets Inc.
Banc of America Securities LLC
as Representatives of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Banc of America Securities LLC
as Representatives of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
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 Notes). The
Notes are to be issued pursuant to the provisions of the Indenture
dated as of , 20___ (the
Base Indenture) between the Company and Wilmington Trust Company, as trustee (the Trustee), as
amended by a first supplemental indenture dated
, 20___ (the First Supplemental Indenture)
among the Company, the Guarantors parties thereto (the Guarantors) and the Trustee and a second
supplemental indenture dated
, 20___ (the Second Supplemental Indenture and together with
the First Supplemental Indenture, the Supplemental Indentures) among the Company, the Guarantors
and the Trustee. The Base Indenture as amended by the Supplemental Indentures is hereinafter
referred to as the Indenture. The Notes will be guaranteed by each of the Guarantors (the
Guarantees and, together with the Notes, the Securities).
We also have participated in the preparation of the Companys registration statement on Form
S-3 (File No. 333- 165052) and post-effective Amendment No. 1 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 April 26, 2010 (the Preliminary Prospectus Supplement) relating to
the Securities, the final term sheet set forth in Schedule IV to 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
40
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] 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 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 (EDGAR), except for required EDGAR 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 Notes and Material U.S. Federal
Income Tax Considerations). 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.
41
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,
(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, |
||||
42
ANNEX B
[FORM OF OPINION OF COMPANY COUNSEL]
[date]
Citigroup Global Markets Inc.
Banc of America Securities LLC
as Representatives of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
Banc of America Securities LLC
as Representatives of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
Ladies and Gentlemen:
I, Joseph W. Bean, 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 Notes). The
Notes are to be issued pursuant to the provisions of the Indenture
dated as of , 20___ (the
Base Indenture) between the Company and Wilmington Trust Company, as trustee (the Trustee), as
amended by a first supplemental indenture dated
, 20___ (the First Supplemental Indenture)
among the Company, the Guarantors parties thereto (the Guarantors) and the Trustee and a second
supplemental indenture dated
, 20___ (the Second Supplemental Indenture and together with
the First Supplemental Indenture, the Supplemental Indentures) among the Company, the Guarantors
and the Trustee. The Base Indenture as amended by the Supplemental Indentures is hereinafter
referred to as the Indenture. The Notes will be guaranteed by each of the Guarantors (the
Guarantees and, together with the Notes, the Securities).
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:
43
1. The Company and each Guarantor organized under the laws of the State of Delaware (the
Delaware Guarantors) have been duly incorporated or organized and is validly existing as a
corporation, limited liability company, limited partnership or other entity in good standing under
the laws of the State of Delaware, 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.
2. The Supplemental Indentures, including the Guarantees forming a part thereof, have been
duly authorized, executed and delivered by each Delaware Guarantor.
3. The Underwriting Agreement has been duly authorized, executed and delivered by each
Delaware Guarantor.
4. 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 listed on Schedule V to the Underwriting Agreement (individually, a
Significant Subsidiary and collectively, the Significant Subsidiaries) or its or their property
that (a) is within the scope of Item 103 of Regulation S-K under the Securities Act and (b) is not
described in the Disclosure Package and the Final Prospectus; and the statements under the captions
Item 1. BusinessRegulatory Matters and Item 3Legal Proceedings set out in the Companys
Annual Report on Form 10-K for the year ended December 31, 2009 as supplemented by the Companys
Quarterly Report on Form 10-Q for the three months ended March 31, 2010, each of which are
incorporated by reference into the Preliminary Prospectus and the Final Prospectus fairly summarize
the matters therein described in all material respects.
5. 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 the 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), the
certificate of incorporation, certificate of formation, by-laws, operating agreement or other
organizational document of the Company or any of the Significant Subsidiaries, as applicable, or
the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
44
instrument to which the Company or the 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, the Delaware Limited Liability Company Act and
the Delaware Revised Uniform Limited Partnership Act.
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.
Very truly yours, |
||||
Name: | Joseph W. Bean | |||
Title: | Senior Vice President - Law &
Administration, General Counsel and Secretary |
45
ANNEX C
[FORM OF OPINION OF WEST VIRGINIA COMPANY COUNSEL]
[date]
Citigroup Global Markets Inc.
Banc of America Securities LLC
as Representatives of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
Banc of America Securities LLC
as Representatives of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
Ladies and Gentlemen:
I, Elizabeth Power, am [insert title] 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
Notes). The Notes are to be issued pursuant to the provisions of the Indenture dated as of
,
20___ (the Base Indenture) between the Company and Wilmington Trust Company, as trustee
(the Trustee), as amended by a first supplemental
indenture dated , 20___ (the First
Supplemental Indenture) among the Company, the Guarantors parties thereto (the Guarantors) and
the Trustee and a second supplemental indenture dated
, 20___ (the Second Supplemental
Indenture and together with the First Supplemental Indenture, the Supplemental Indentures) among
the Company, the Guarantors and the Trustee. The Base Indenture as amended by the Supplemental
Indentures is hereinafter referred to as the Indenture. The Notes will be guaranteed by each of
the Guarantors (the Guarantees and, together with the Notes, the Securities).
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 Guarantor organized under the laws of the State of West Virginia (the West Virginia
Guarantors) has been duly incorporated or organized and is validly
46
existing as a corporation, limited liability company or other entity in good standing under
the laws of the State of West Virginia, 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.
2. The Supplemental Indentures, including the Guarantees forming a part thereof, have been
duly authorized, executed and delivered by each West Virginia Guarantor.
3. The Underwriting Agreement has been duly authorized, executed and delivered by each West
Virginia Guarantor.
The foregoing opinion is limited to the federal laws of the United States of America and the
[West Virginia Business Corporation Act and the Uniform Limited Liability Company Act of West
Virginia] [ADD ANY OTHER RELEVANT WEST VIRGINIA STATUTES].
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.
Very truly yours, |
||||
Name: | Elizabeth Power | |||
Title: | [insert title] | |||
47