Attached files
file | filename |
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8-K - FORM 8-K - PEABODY ENERGY CORP | c59728e8vk.htm |
EX-99.4 - EX-99.4 - PEABODY ENERGY CORP | c59728exv99w4.htm |
EX-99.2 - EX-99.2 - PEABODY ENERGY CORP | c59728exv99w2.htm |
EX-99.1 - EX-99.1 - PEABODY ENERGY CORP | c59728exv99w1.htm |
EX-99.3 - EX-99.3 - PEABODY ENERGY CORP | c59728exv99w3.htm |
Exhibit 1.1
EXECUTION VERSION
PEABODY ENERGY CORPORATION
$650,000,000 6.500% Senior Notes due 2020
UNDERWRITING AGREEMENT
August 11, 2010
Banc of America Securities LLC
One Bryant Park
New York, NY 10036
One Bryant Park
New York, NY 10036
As Representative of the several Underwriters
named in Schedule II (the Representative)
named in Schedule II (the Representative)
Ladies and Gentlemen:
Peabody Energy Corporation, a Delaware corporation (the Company), proposes to issue and sell
to the underwriters named in Schedule II hereto (the Underwriters) $650,000,000 aggregate
principal amount of its 6.500% Senior Notes due 2020 (the Notes) guaranteed by guarantees (the
Guarantees and, together with the Notes, the Securities) of the Companys domestic subsidiaries
signatory hereto (collectively, the Subsidiary Guarantors) pursuant to the terms of an indenture
(the Base Indenture), dated as of March 19, 2004, among the Company, the Subsidiary Guarantors
and U.S. Bank National Association, as trustee (the Trustee), as supplemented by a supplemental
indenture (the 2020 Supplemental Indenture, and together with the Base Indenture, the
Indenture), to be dated on or about August 25, 2010, among the Company, the Trustee and the
Subsidiary Guarantors relating to the Notes. This Agreement, the Notes, the Guarantees and the
Indenture are hereinafter referred to collectively as the Operative Documents.
The Company has filed with the Securities and Exchange Commission (the Commission) a
registration statement, including a prospectus, (File No. 333-161179) on Form S-3, relating to the
securities (the Shelf Securities), including the Securities, to be issued from time to time by
the Company. The registration statement as amended to the date of this Agreement, including the
information (if any) deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the Securities
Act), is hereinafter referred to as the Registration Statement, and the related prospectus
covering the Shelf Securities dated August 7, 2009 in the form first used to confirm sales of the
Securities (or in the form first made available to the Underwriters by the Company to meet requests
of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the
Basic Prospectus. The Basic Prospectus, as supplemented by the prospectus supplement
specifically relating to the Securities in the form first used to confirm sales of the Securities
(or in the form first made available to the Underwriters by the Company to
meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter
referred to as the Prospectus, and the term Preliminary Prospectus means any preliminary form
of the Prospectus. For purposes of this Agreement, free writing prospectus has the meaning set
forth in Rule 405 under the Securities Act, Time of Sale Prospectus means the Preliminary
Prospectus together with the free writing prospectuses, if any, each identified in Schedule I
hereto, and broadly available road show means a bona fide electronic road show as defined in
Rule 433(h)(5) under the Securities Act that has been made available without restriction to any
person. As used herein, the terms Registration Statement, Basic Prospectus, Preliminary
Prospectus, Time of Sale Prospectus and Prospectus shall include the documents, if any,
incorporated by reference therein. The terms supplement, amendment, and amend as used herein
with respect to the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any
Preliminary Prospectus, the Prospectus or any free writing prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the Exchange Act), that are deemed to be incorporated by reference therein.
The Company and the Subsidiary Guarantors hereby agree with the Underwriters as follows:
SECTION 1. Representations, Warranties and Agreements of the Company and the Subsidiary
Guarantors. The Company and the Subsidiary Guarantors, jointly and severally, represent, warrant
and agree that:
(a) A registration statement on Form S-3 (File No. 333-161179) with respect to, among other
things, the Securities has (i) been prepared by the Company and the Subsidiary Guarantors in
conformity with the requirements of the Securities Act, and the rules and regulations of the
Commission thereunder (the Rules and Regulations), (ii) been filed with the Commission under the
Securities Act, and (iii) become effective under the Securities Act. Copies of such registration
statement and Post-Effective Amendment No. 1 thereto have been delivered by the Company to you. No
stop order suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of the Company, threatened by
the Commission. If the Registration Statement is an automatic shelf registration statement as
defined in Rule 405 under the Securities Act, the Company is a well-known seasoned issuer (as
defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an
automatic shelf registration statement and the Company has not received notice that the Commission
objects to the use of the Registration Statement as an automatic shelf registration statement.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement as of the date hereof does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the
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statements therein not misleading, (iv) the Registration Statement and the Prospectus comply,
and as amended or supplemented, if applicable, will comply in all material respects with the
Securities Act and the Rules and Regulations, (v) the Time of Sale Prospectus does not, and at the
time of each sale of the Securities in connection with the offering when the Prospectus is not yet
available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented
by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (vi) each broadly available road show, if any, when
considered together with the Time of Sale Prospectus, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading and (vii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to (A) statements or
omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing by any Underwriter
expressly for use therein or (B) that part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended (the Trust
Indenture Act), of the Trustee.
(c) The Company is not an ineligible issuer in connection with the offering of the
Securities pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act
has been, or will be, filed with the Commission in accordance with the requirements of the
Securities Act and the Rules and Regulations. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the Rules and Regulations.
Except for the free writing prospectuses, if any, identified in Schedule I hereto, and electronic
road shows, if any, furnished to you before first use, the Company has not prepared, used or
referred to, and will not, without your prior consent, prepare, use or refer to, any free writing
prospectus.
(d) The Company and each of its subsidiaries (as defined in Section 15) have been duly
incorporated or organized, as the case may be, and are validly existing as their respective
business entities and in good standing under the laws of their respective jurisdictions of
incorporation or organization, as the case may be, are duly qualified to do business and are in
good standing as foreign corporations or other organizations where such concept is applicable in
each jurisdiction in which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification (provided such good standing concept is
applicable in such foreign jurisdiction), and have all power and authority necessary to own or hold
their respective properties and to conduct the businesses in which they are engaged, except where
the failure to so qualify or to be in good standing would not reasonably be expected to have a
material adverse effect on the financial condition, business, properties or results of operations
of the Company and its subsidiaries taken as a whole (a Material Adverse Effect).
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(e) The Company has an authorized capitalization as set forth in each of the Time of Sale
Prospectus and the Prospectus, and all of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid and non-assessable and
conform in all material respects to the description thereof contained in each of the Time of Sale
Prospectus and the Prospectus; and all of the issued and outstanding shares of capital stock or
membership interests, as the case may be, of each wholly-owned subsidiary of the Company have been
duly and validly authorized and issued and are fully paid and non-assessable and (except for
directors qualifying shares) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims, other than liens, encumbrances, equities or claims
described in each of the Time of Sale Prospectus and the Prospectus, and none of such shares of
capital stock or membership interests, as the case may be, were issued in violation of preemptive
or other similar rights arising by operation of law, under the charter and by-laws of the Company
or under any agreement to which the Company or any Subsidiary Guarantor is a party or otherwise.
(f) Each of the Company and the Subsidiary Guarantors has all requisite power and authority to
execute, deliver and perform its respective obligations under this Agreement and each of the other
Operative Documents to which it is a party.
(g) This Agreement has been duly authorized, executed and delivered by the Company and the
Subsidiary Guarantors.
(h) The Indenture has been duly authorized by the Company and each of the Subsidiary
Guarantors, and when duly executed by the proper officers of the Company and each of the Subsidiary
Guarantors (assuming due execution and delivery by the Trustee) and delivered by the Company and
each of the Subsidiary Guarantors, will constitute a legal, valid and binding agreement of the
Company and each of the Subsidiary Guarantors enforceable against the Company and each of the
Subsidiary Guarantors in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting
creditors rights and remedies generally, and subject, as to enforceability, to general principles
of equity, including principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or in equity). The Indenture
has been duly qualified under the Trust Indenture Act.
(i) The Notes have been duly authorized by the Company and when duly issued by the Company in
accordance with the terms of the Indenture and, assuming due authentication of the Notes by the
Trustee, when delivered to the Underwriters against payment therefor in accordance with the terms
hereof, will have been validly issued and delivered, and will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors
rights and remedies generally, and subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity).
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(j) The Guarantees have been duly authorized by each of the Subsidiary Guarantors and when
duly endorsed on the Notes in accordance with the terms of the Indenture and, assuming due
authentication of the Notes by the Trustee, upon delivery to the Underwriters against payment
therefor in accordance with the terms hereof will constitute legal, valid and binding obligations
of each of the Subsidiary Guarantors entitled to the benefits of the Indenture and enforceable
against each of the Subsidiary Guarantors in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
(k) The execution, delivery and performance of this Agreement and the other Operative
Documents by the Company and the Subsidiary Guarantors will not (i) result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of its subsidiaries is subject, (ii) result in any
violation of the provisions of the Certificate of Incorporation or by-laws of the Company or
organizational documents of any of its subsidiaries or (iii) result in the violation of any statute
or any order, rule or regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties or assets, except in the
case of clauses (i) and (iii), such conflicts, breaches or violations that in the aggregate would
not reasonably be expected to have a Material Adverse Effect. Except as may be required in
connection with compliance with the securities or Blue Sky laws of various jurisdictions, no
consent, approval, authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and performance of this
Agreement or any of the other Operative Documents by the Company and the Subsidiary Guarantors.
(l) The financial statements (including the related notes and supporting schedules) included
or incorporated by reference in the Time of Sale Prospectus and the Prospectus comply as to form in
all material respects with the requirements of Regulation S-X under the Securities Act and present
fairly in all material respects the financial condition and results of operations and cash flows of
the entities purported to be shown thereby, at the dates and for the periods indicated, and have
been prepared in conformity with generally accepted accounting principles (GAAP) applied on a
consistent basis throughout the periods involved. The other financial data and operating data
included in the Time of Sale Prospectus and the Prospectus is presented fairly, in all material
respects, and has been prepared on a basis consistent with such financial statements and the books
and records of the Company.
(m) There are no legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company or any of its
subsidiaries is the subject (i) other than proceedings accurately described in all material
respects in the Time of Sale Prospectus and the Prospectus and proceedings that would not have a
Material Adverse Effect, or would not materially and adversely affect the power or ability of the
Company to perform its obligations under this Agreement or to consummate the transactions
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contemplated by the Time of Sale Prospectus and the Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are not so described; and to the
Companys knowledge, no such proceedings are threatened by governmental authorities or threatened
by others.
(n) Neither the Company nor any of its subsidiaries has sustained, since the date of the
latest audited financial statements included in each of the Time of Sale Prospectus and the
Prospectus, any material loss or interference with its business that has had a Material Adverse
Effect, whether from fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in each of the Time of Sale Prospectus and the Prospectus; and, since such
date, there has not been any material change in the capital stock or material increase in the
long-term debt of the Company or any of its subsidiaries or any change, in or affecting the general
affairs, management, consolidated financial position, stockholders equity, results of operations,
business or prospects of the Company and its subsidiaries that has had or could reasonably be
expected to have a Material Adverse Effect, other than as set forth or contemplated in each of the
Time of Sale Prospectus and the Prospectus.
(o) The Company is subject to and in full compliance with the reporting requirements of
Section 13 or 15(d) of the Exchange Act.
(p) The Company and each Subsidiary Guarantor (i) makes and keeps accurate books and records
and (ii) maintains a system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with managements authorization, (B)
transactions are recorded as necessary to permit preparation of its financial statements in
conformity with GAAP and to maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with managements authorization and (D) the recorded accountability
for its assets is compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(q) The Company and its subsidiaries maintain an effective system of disclosure controls and
procedures (as defined in Rule 13a-15(e) under the Exchange Act). The Company and its
subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15 of the Exchange Act.
(r) Ernst & Young LLP, who have certified certain financial statements of the Company, whose
report appears in the Time of Sale Prospectus and the Prospectus and who have delivered the initial
letter referred to in Section 7(h) hereof, are and have been, independent public accountants as
required by the Securities Act and the Rules and Regulations during the periods covered by the
financial statements on which they reported.
(s) The market-related and industry data included in the Time of Sale Prospectus and the
Prospectus are based upon estimates by the Company on or derived from sources that the Company
believes to be reliable and accurate in all material respects.
(t) The Company has such permits, licenses, franchises, certificates, consents, orders and
other approvals or authorizations of any governmental or regulatory authority (Permits),
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including, without limitation, any permits or approvals required by the United States
Environmental Protection Agency, the United States Office of Surface Mining Reclamation and
Enforcement and corresponding state agencies, as are necessary under applicable law to own its
properties and to conduct its businesses in the manner described in the Time of Sale Prospectus and
the Prospectus, except to the extent that the failure to have such Permits would not reasonably be
expected to have a Material Adverse Effect. The Company has fulfilled and performed in all
material respects, all its material obligations with respect to the Permits, and, to the knowledge
of the Company, no event has occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material impairment of the rights of the
holder of any such Permit, subject in each case to such qualification as may be set forth in the
Time of Sale Prospectus and the Prospectus and except to the extent that any such revocation or
termination would not reasonably be expected to have a Material Adverse Effect.
(u) To the knowledge of the Company, the Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is adequate for the conduct of
their respective businesses and the value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries.
(v) No labor disturbance by the employees of the Company exists or, to the knowledge of the
Company, is imminent, which would reasonably be expected to have a Material Adverse Effect, except
as disclosed in the Time of Sale Prospectus and the Prospectus.
(w) Except as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect: (i) each pension plan within the meaning of Section 3(2) of ERISA which
is established or maintained by the Company or any member of its Controlled Group (defined as any
trade or business that, together with the Company, is treated as a single employer under Section
414(b) or 414(c) of the Internal Revenue Code of 1986, as amended (the Code) (each, a
Pension Plan) is in compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended, and including the
regulations thereunder (ERISA); (ii) no reportable event (as defined in Section 4043(c) of
ERISA) has occurred with respect to any Pension Plan; (iii) the Company has not incurred and does
not reasonably expect to incur liability under (1) Title IV of ERISA with respect to termination
of, or withdrawal from, any Pension Plan or (2) Sections 412 or 4971 of the Internal Revenue Code
of 1986, as amended, and including the regulations thereunder (the Code); and (iv) each Pension
Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable
determination letter from the Internal Revenue Service stating that it is so qualified in all
material respects and to the Companys knowledge nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
(x) Each of the Company and the Subsidiary Guarantors has filed (or obtained extensions in
filing) all federal, state and local income and franchise tax returns required to be filed through
the date hereof (other than those the nonfiling of which would not be reasonably likely to have a
Material Adverse Effect) and has paid all taxes due thereon, other than those being contested in
good faith and for which reserves have been provided in accordance with GAAP, those currently
payable without penalty or interest or the nonpayment of which would not be reasonably likely to
have a Material Adverse Effect. No tax deficiency has been
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determined adversely to the Company and the Subsidiary Guarantors that has had (nor does the
Company have any knowledge of any tax deficiency which, if determined adversely to the Company or
any of its subsidiaries, would reasonably be expected to have) a Material Adverse Effect.
(y) Neither the Company nor any of the Subsidiary Guarantors (i) is in violation of its
organizational documents, (ii) is in default, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which it is a party or by which it is bound or to which any of
its properties or assets is subject, or (iii) is in violation of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may be subject, except, in
the cases of clauses (ii) and (iii), such defaults, events, violations or failures that in the
aggregate would not reasonably be expected to have a Material Adverse Effect.
(z) Except as set forth in the Time of Sale Prospectus and the Prospectus, there has been no
storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous substances by the Company or any of its
subsidiaries (or, to the knowledge of the Company, any of their predecessors in interest) at, upon
or from any of the property now or previously owned or leased by the Company or its subsidiaries in
violation of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or
that would require remedial action under any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit, except for any violation or remedial action that would not have, or
would not be reasonably likely to have, singularly or in the aggregate with all such violations and
remedial actions, a Material Adverse Effect; except as set forth in, or specifically contemplated
by, the Time of Sale Prospectus and the Prospectus; there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical wastes, solid wastes, hazardous
wastes or hazardous substances due to or caused by the Company or any of its subsidiaries or with
respect to which the Company or any of its subsidiaries have knowledge, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release that would not have or would not
be reasonably likely to have, singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings and releases, a Material Adverse Effect; and the
terms hazardous wastes, toxic wastes, hazardous substances and medical wastes shall have
the meanings specified in any applicable local, state, federal and foreign laws or regulations with
respect to environmental protection.
(aa) The Company and each of its subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects, except such as are described in the
Time of Sale Prospectus and the Prospectus or that would not reasonably be expected to have a
Material Adverse Effect; and all real property held under lease by the Company and its subsidiaries
that is material to the Company and its subsidiaries, taken as a whole, is held by them under
valid, subsisting and enforceable leases, with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such real property by the Company and its
subsidiaries.
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(bb) Neither the Company nor any subsidiary is, or, as of the Closing Date (as defined below)
after giving effect to the offer and sale of the Securities pursuant to this Agreement and the
application of the proceeds as described in the Time of Sale Prospectus and the Prospectus under
the section entitled Use of Proceeds, and neither the Company nor any subsidiary will be, an
investment company within the meaning of such term under the Investment Company Act of 1940, as
amended (the Investment Company Act).
(cc) No nationally
recognized statistical rating organization (i) has imposed (or has informed the Company
that it is considering imposing) any condition (financial or otherwise) on the Companys retaining
any rating assigned as of the date hereof to the Company or its securities or (ii) has indicated to
the Company that it is considering (A) the downgrading, suspension or withdrawal of, or any review
for a possible change that does not indicate the direction of the possible change in, any rating so
assigned or (B) any negative change in the outlook for any rating of the Company.
(dd) Each of the Company and the Subsidiary Guarantors understands that the Underwriters and,
for purposes of the opinions to be delivered to the Underwriters pursuant to Section 7 hereof,
counsel to the Company and counsel to the Underwriters will rely upon the accuracy and truth of the
foregoing representations and hereby consents to such reliance.
(ee) The conditions for use of Form S-3, as set forth in the General Instructions thereto,
have been satisfied with respect to the Registration Statement.
(ff) There are no contracts or other documents that are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by the Securities Act or by the Rules
and Regulations that have not been described in the Prospectus or filed as exhibits to the
Registration Statement.
(gg) Each Preliminary Prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the Rules and
Regulations.
(hh) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company and
the Subsidiary Guarantors, any director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would
result in a violation by such persons of 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, its
subsidiaries and, to the knowledge of the Company and the Subsidiary Guarantors, 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
9
ensure, continued compliance therewith. FCPA means the Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder.
(ii) 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 of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all applicable jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines issued, administered or enforced by any governmental agency
(collectively, the Money Laundering Laws) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the
Company and the Subsidiary Guarantors, threatened.
(jj) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company and
the Subsidiary Guarantors, any director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (OFAC); and the Company will not directly
or indirectly use the proceeds of the offering, 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.
(kk) The Securities and the Indenture will conform in all material respects to the
descriptions thereof in the Time of Sale Prospectus and the Prospectus under the captions
Description of the Notes and Description of the Debt Securities and the Guarantees.
(ll) The Company and its directors and officers, in their capacities as such, are in
compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection therewith (the Sarbanes-Oxley Act),
including Section 402 related to loans and Sections 302 and 906 related to certifications.
Any certificate signed by an officer of the Company and delivered to the Representative or to
counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to
each Underwriter as to the matters set forth therein.
SECTION 2. Purchase and Sale. On the basis of the representations and warranties contained
in, and subject to the terms and conditions of, this Agreement, the Company agrees to sell the
Notes (and cause the Subsidiary Guarantors to issue the Guarantees) to the several Underwriters and
each of the Underwriters, severally and not jointly, agrees to purchase the amount of Notes set
opposite that Underwriters name in Schedule II hereto. Each Underwriter will purchase such
aggregate principal amount of the Notes at an aggregate purchase price equal to 98.75% of the
principal amount thereof (the Purchase Price).
The Company shall not be obligated to deliver any of the Securities to be delivered on the
Closing Date (as defined below), except upon payment for all the Securities to be purchased on the
Closing Date as provided herein.
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SECTION 3. Delivery of the Securities.
(a) Delivery of and payment for the Securities shall be made at the offices of Shearman &
Sterling LLP, 599 Lexington Avenue, New York, New York 10022, at 9:00 A.M., New York City time, on
August 25, 2010 or at such other date or place as shall be determined by agreement between the
Representative and the Company. This date and time are sometimes referred to as the Closing
Date.
(b) On the Closing Date, one or more Notes in definitive form, registered in the name of Cede
& Co., as nominee of The Depository Trust Company (DTC), having an aggregate principal amount
corresponding to the aggregate principal amount of Notes sold pursuant to this Agreement
(collectively, the Global Notes), shall be delivered by the Company to the Underwriters against
payment by the Underwriters of the Purchase Price thereof by wire transfer of immediately available
funds as the Company may direct, by written notice delivered to you no later than one business day
prior to the Closing Date. The Global Notes in definitive form shall be made available to the
Underwriters for inspection not later than 1:30 p.m. on the business day prior to the Closing Date.
(c) Payment for the Notes shall be made on the Closing Date by wire transfer of immediately
available funds to the order of the Company.
SECTION 4. Offering of Notes by the Underwriters. Upon authorization by the Representative of
the release of the Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus.
SECTION 5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Underwriters and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act not later than Commissions close of
business on the second business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to
make no further amendment or any supplement to the Registration Statement or to the Prospectus
after the Prospectus Delivery Period except as permitted herein (provided, however, this clause
shall, in the case of any periodic or current report that the Company is required to file pursuant
to Section 13(a), 13(c), 14 or Section 15(d) under the Exchange Act during the Prospectus Delivery
Period, not apply to the extent practicable in the light of the circumstances, but in any event,
the Underwriters shall be notified in advance of any such filing that will be incorporated by
reference in the Prospectus); to advise the Underwriters, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been filed and to
furnish the Underwriters with copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus is required in connection with the offering or sale of
the Notes; to advise the Underwriters, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus,
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of the suspension of the qualification of the Notes for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement, the Time of Sale
Prospectus or the Prospectus or for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the
Time of Sale Prospectus or the Prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal.
(b) To furnish promptly to each of the Underwriters and to counsel for the Underwriters a
signed copy of the Registration Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Underwriters such number of the following documents as the
Underwriters shall reasonably request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in each case excluding exhibits)
and (ii) each Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus and any amended
or supplemented Prospectus; and, if the delivery of the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the Securities Act) is required at any time after the effective
date of the Registration Statement in connection with the offering or sale of the Notes or any
other securities relating thereto and if at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an 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 when such Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered, not
misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus
in order to comply with the Securities Act, to notify the Underwriters and, upon their request, to
prepare and furnish without charge to each Underwriter and to any dealer in securities as many
copies as the Underwriters may from time to time reasonably request of an amended or supplemented
Prospectus that will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement, the Time
of Sale Prospectus or the Prospectus or any supplement to the Time of Sale Prospectus or the
Prospectus that may, in the judgment of the Company and the Underwriters, be required by the
Securities Act or requested by the Commission.
(e) Prior to filing with the Commission any amendment to the Registration Statement or
supplement to the Time of Sale Prospectus or the Prospectus, any document incorporated by reference
in the Prospectus or any prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a
copy thereof to the Underwriters and counsel for the Underwriters and obtain the consent of the
Underwriters to the filing which consent shall not be unreasonably withheld or delayed.
(f) To furnish to the Underwriters a copy of each proposed free writing prospectus to be
prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any
proposed free writing prospectus to which the Underwriters reasonably object, provided that
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the prior written consent of the Underwriters hereto shall be deemed to have been given in
respect of the final term sheet attached hereto as Exhibit D hereto.
(g) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(h) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a
time when the Prospectus is not yet available to prospective purchasers and any event shall occur
or condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if any event shall occur or condition exist as a result of which
the Time of Sale Prospectus conflicts with the information contained in the Registration Statement
then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale Prospectus so that the statements in
the Time of Sale Prospectus as so amended or supplemented will not, in the light of the
circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale
Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or
so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(i) To make generally available to the Companys security holders and to the Underwriters as
soon as practicable an earning statement covering a period of at least twelve months beginning with
the first fiscal quarter of the Company occurring after the date of this Agreement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the Rules and Regulations.
(j) For a period of five years following the effective date of the Registration Statement, to
furnish to the Underwriters, to the extent such information is not freely available on the
Internet, copies of all materials furnished by the Company to its shareholders and all public
reports and all reports and financial statements furnished by the Company to the principal national
securities exchange upon which the Notes may be listed pursuant to requirements of or agreements
with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder.
(k) Promptly from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the state securities or Blue Sky laws of such
jurisdictions as you may request (provided, however, that the Company shall not be obligated to
qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take
any action that would subject it to general consent to service of process in any jurisdiction in
which it is not now so subject or subject itself to taxation in excess of any nominal amount in any
such jurisdiction where it is not then so subject) and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities.
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(l) To use its reasonable best efforts to do and perform all things required to be done and
performed under this Agreement by it prior to or after the Closing Date and to satisfy all
conditions precedent on its part to the delivery of the Securities.
(m) To apply the net proceeds from the sale of the Notes as set forth in the Prospectus under
the section entitled Use of Proceeds.
(n) For the period that is two years after the Closing Date to take such steps as shall be
necessary to ensure that neither the Company nor any subsidiary of the Company shall become an
investment company within the meaning of such term under the Investment Company Act and the rules
and regulations of the Commission thereunder.
(o) If the third anniversary of the effective date of the Registration Statement occurs before
all the Securities have been sold by the Underwriters, prior to the third anniversary to file a new
shelf registration statement and to take any other action necessary to permit the public offering
of the Securities to continue without interruption; references herein to the Registration Statement
shall include the new registration statement declared effective by the Commission.
(p) To prepare a final term sheet relating to the offering of the Securities, containing only
information that describes the final terms of the Securities or the offering in the form of Exhibit
D hereto, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under
the Securities Act following the date the final terms have been established for the offering of the
Securities.
(q) During the period beginning on the date hereof and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Securities (other than (i) the Securities, (ii) commercial
paper issued in the ordinary course of business or (iii) securities or warrants permitted with the
prior written consent of the Representative on behalf of the Underwriters).
(r) During the Prospectus Delivery Period, the Company will comply with all applicable
securities and other laws, rules and regulations, including, without limitation, the Sarbanes-Oxley
Act, and use its reasonable best efforts to cause the Companys directors and officers, in their
capacities as such, to comply with such laws, rules and regulations, including, without limitation,
the provisions of the Sarbanes-Oxley Act. As used herein, the term Prospectus Delivery Period
means such period of time after the first date of the public offering of the Notes as in the
opinion of counsel for the Underwriters a prospectus relating to the Notes is required by law to be
delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection
with sales of the Notes by any Underwriter or dealer.
(s) The Company will not take, directly or indirectly, any action designed to cause or result
in, or that has constituted or might reasonably be expected to constitute, under the Exchange Act
or otherwise, the stabilization or manipulation of the price of any securities of the Company to
facilitate the sale or resale of the Securities.
SECTION 6. Expenses. The Company agrees that, whether or not the transactions contemplated by
this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all
costs, expenses, fees and taxes incident to and in connection with: (i) the
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preparation, printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto (but not, however, legal fees and expenses of your counsel
incurred in connection therewith); (ii) the preparation, printing and delivery of the Registration
Statement as originally filed and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), any Preliminary Prospectus, the Time of Sale Prospectus or the
Prospectus and any amendment or supplement to the Time of Sale Prospectus or the Prospectus or any
document incorporated by reference therein, all as provided in this Agreement; (iii) all necessary
issue, transfer and other stamp taxes in connection with the issuance and sale of the Securities to
the Underwriters, (iv) the preparation, printing (including, without limitation, word processing
and duplication costs) and delivery of this Agreement, the Indenture, all Blue Sky memoranda and
all other agreements, memoranda, correspondence and other documents printed and delivered in
connection herewith (including all filing fees, but not, however, legal fees and expenses of your
counsel incurred in connection with any of the foregoing other than reasonable fees of such counsel
plus reasonable disbursements incurred in connection with the preparation, printing and delivery of
such Blue Sky memoranda), (v) the filing fees for the Financial Industry Regulatory Authoritys
(FINRA) review of the offering of the Securities, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with compliance with FINRAs rules and regulations, (vi)
the fees and expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Notes, (vii) the issuance and delivery by the
Company and the Subsidiary Guarantors of the Securities, (viii) the qualification of the Notes for
offer and sale under the securities or Blue Sky laws of the several states (including, without
limitation, the reasonable fees and disbursements of your counsel relating to such registration or
qualification), (ix) the preparation of certificates for the Notes (including, without limitation,
printing and engraving thereof), (x) the fees, disbursements and expenses of the Companys counsel
and accountants, (xi) the costs and expenses of the Company relating to investor presentations on
any road show undertaken in connection with the offering of the Notes, (xii) all fees and expenses
(including fees and expenses of counsel) of the Company in connection with approval of the Notes by
DTC for book-entry transfer and (xiii) the performance by the Company and the Subsidiary
Guarantors of their other obligations under this Agreement.
SECTION 7. Conditions of Underwriters Obligations. The respective obligations of the
Underwriters hereunder are subject to the accuracy, when made and on the Closing Date, of the
representations and warranties of the Company contained herein, to the performance by the Company
of its obligations hereunder, and to each of the following additional terms and conditions.
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section
5(a); no stop order suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been initiated by the
Commission; and any request of the Commission for inclusion of additional information in the
Registration Statement, the Time of Sale Prospectus or the Prospectus or otherwise shall have been
complied with.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to such
Closing Date that the Time of Sale Prospectus or the Prospectus or any amendment or supplement
thereto contains an untrue statement of a fact which, in the opinion of Shearman &
15
Sterling LLP, counsel for the Underwriters, is material or omits to state a fact which, in the
opinion of such counsel, is material or is necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and
validity of this Agreement, the other Operative Documents, the Time of Sale Prospectus, the
Prospectus, and all other legal matters relating to this Agreement shall be reasonably satisfactory
in all material respects to counsel for the Underwriters, and the Company shall have furnished to
such counsel all documents and information that they may reasonably request to enable them to pass
upon such matters.
(d) Simpson Thacher & Bartlett LLP shall have furnished to the Underwriters its written
opinion and negative assurance letter, as counsel to the Company and the Subsidiary Guarantors,
each addressed to the Underwriters and dated as of the Closing Date, in form and substance
reasonably satisfactory to the Underwriters and its counsel, substantially in the form attached
hereto as Exhibit A-1 and Exhibit A-2, respectively.
(e) Counsel for the Subsidiary Guarantors that are incorporated or organized, as the case may
be, in the States of Illinois and Indiana shall have furnished to the Underwriters their written
opinions, as counsel to the Subsidiary Guarantors, addressed to the Underwriters and dated as of
the Closing Date, in form and substance reasonably satisfactory to the Underwriters and their
counsel, substantially in the form attached hereto as Exhibit B-1 and B-2.
(f) Counsel for the Companys foreign significant subsidiaries (as defined in Rule 405 under
the Securities Act) that are incorporated or organized, as the case may be, in the Commonwealth of
Australia shall have furnished to the Underwriters their written opinions, addressed to the
Underwriters and dated as of the Closing Date, in form and substance reasonably satisfactory to the
Underwriters and their counsel, substantially in the form attached hereto as Exhibit C.
(g) The Underwriters shall have received from Shearman & Sterling LLP, counsel for the
Underwriters, such opinion or opinions, dated as of the Closing Date, with respect to the issuance
and sale of the Securities, the Time of Sale Prospectus, the Prospectus and other related matters
as the Underwriters may reasonably require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them to pass upon such
matters.
(h) Each of the Company, the Subsidiary Guarantors and the Trustee shall have entered into the
Indenture and the Underwriters shall have received counterparts, conformed as executed, thereof.
(i) At the time of execution of this Agreement and as of the Closing Date, the Underwriters
shall have received from Ernst & Young LLP, a letter, in form and substance reasonably satisfactory
to the Underwriters, addressed to the Underwriters and dated the date hereof or the Closing Date,
as the case may be (i) confirming that they are independent public accountants within the meaning
of the Securities Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of
16
the Commission, (ii) stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which specified financial information is
given in the Time of Sale Prospectus and the Prospectus, as of a date not more than five days prior
to the date hereof), the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants comfort letters to Underwriters
in connection with registered public offerings.
(j) The Underwriters shall have received (i) a certificate from the Company, dated the Closing
Date, signed by its Chief Executive Officer or President and its Chief Financial Officer or
Treasurer and (ii) a certificate from each Subsidiary Guarantor, dated as of the Closing Date,
signed by an officer thereof stating, as applicable, that:
(A) The representations and warranties of the Company and the Subsidiary Guarantors, as
applicable, are true and correct as if made on and as of the Closing Date (other than to the
extent any such representation or warranty is made expressly to a certain date), and the
Company and the Subsidiary Guarantors, as applicable, have performed all covenants and
agreements and satisfied all conditions on their part to be performed or satisfied
hereunder, at or prior to the Closing Date;
(B) At the Closing Date, since the date hereof or since the date of the most recent
financial statements in the Prospectus, except as described in the Time of Sale Prospectus
and the Prospectus, no event or events have occurred, nor has any information become known,
that, individually or in the aggregate, would have a Material Adverse Effect;
(C) They have carefully examined the Time of Sale Prospectus and, in their opinion (A)
as of the date hereof, the Time of Sale Prospectus did not include any untrue statement of a
material fact and did not omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading and (B)
since the date hereof no event has occurred that should have been set forth in a supplement
or amendment to the Time of Sale Prospectus except as disclosed therein; and
(D) The issuance and sale of the Securities by the Company and the Subsidiary
Guarantors hereunder has not been enjoined (temporarily or permanently) by any court or
governmental body or agency.
(k) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included in the Time of Sale Prospectus (exclusive of any
amendment or supplement thereto after the date hereof) any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Time of Sale Prospectus and the Prospectus or (ii) since such date there shall
not have been any change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders equity or results of operations, of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
17
the Time of Sale Prospectus and the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse
as to make it impracticable or inadvisable to proceed with the offering or the delivery of the
Securities being delivered on such Closing Date on the terms and in the manner contemplated in the
Time of Sale Prospectus and the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have
occurred in the rating accorded the Companys debt securities by any nationally recognized
statistical rating organization, and (ii) no such organization shall have publicly announced or
privately informed the Company that it has under surveillance or review, with possible negative
implications, its rating of any of the Companys debt securities.
(m) Subsequent to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock Exchange or the
American Stock Exchange or in the U.S. over-the-counter market, or trading in any securities of the
Company on any exchange or in the U.S. over-the-counter market, shall have been suspended or the
settlement of such trading generally shall have been materially disrupted or minimum prices shall
have been established on any such exchange or such market by the Commission, by such exchange or by
any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in hostilities involving the United
States or there shall have been a declaration of a national emergency or war by the United States
or (iv) there shall have occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial markets in the
United States shall be such) or there shall have occurred any other calamity or crisis, including,
without limitation, as a result of terrorist activities after the date hereof, as to make it, in
the judgment of the Representative, impracticable or inadvisable to proceed with the public
offering or delivery of the Securities being delivered on such Closing Date on the terms and in the
manner contemplated in the Time of Sale Prospectus.
(n) At the Closing Date, the Company and the Subsidiary Guarantors shall have furnished
counsel for the Company, the Subsidiary Guarantors or the Underwriters, as the case may be, such
documents as they reasonably require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties or fulfillment of any of the conditions herein contained.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
SECTION 7.1 Covenants of the Underwriters. Each Underwriter severally covenants with the
Company not to take any action that would result in the Company being required to file with the
Commission under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on
behalf of such Underwriter that otherwise would not be required to be filed by the Company
thereunder, but for the action of the Underwriter.
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SECTION 8. Indemnification and Contribution.
(a) The Company and the Subsidiary Guarantors shall jointly and severally indemnify and hold
harmless each Underwriter, its directors, officers and employees, agents and affiliates, and each
person, if any, who controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of the Securities), to
which that Underwriter, director, officer, employee or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Preliminary Prospectus, the Registration Statement, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d)
of the Securities Act, or the Prospectus or in any amendment or supplement thereto, or (B) in any
other materials or information provided to investors by, or with the approval of, the Company in
connection with the marketing of the offering of the Notes (Marketing Materials), including any
road show or investor presentations made to investors by the Company (whether in person or
electronically), (ii) the omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement, the Time of Sale Prospectus, any issuer free writing prospectus as defined
in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) of the Securities Act, or the Prospectus, or in any
amendment or supplement thereto, or Marketing Materials, any material fact required to be stated
therein or necessary to make the statements therein in light of the circumstances under which they
were made not misleading, or (iii) any act or failure to act or any alleged act or failure to act
by any Underwriter in connection with, or relating in any manner to, the offering of the
Securities, and that is included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above (provided that the
Company and the Subsidiary Guarantors shall not be liable under this clause (iii) to the extent
that it is determined in a final judgment by a court of competent jurisdiction that such loss,
claim, damage, liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross negligence or willful
misconduct), and shall reimburse each Underwriter and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses reasonably incurred by that
Underwriter, director, officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, Time of Sale Prospectus, any issuer free writing prospectus, the
Registration Statement or the Prospectus, or in any such amendment or supplement, in reliance upon
and in conformity with written information concerning such Underwriter furnished to the Company by
or on behalf of any Underwriter specifically for inclusion therein which information consists
solely of the information specified in Section 8(e). The foregoing indemnity agreement is in
addition to any liability that the Company and the Subsidiary Guarantors may otherwise have to any
Underwriter or to any director, officer, employee or controlling person of that Underwriter.
19
(b) Each Underwriter shall, severally and not jointly, indemnify and hold harmless the
Company, the Subsidiary Guarantors, their respective officers, each of their respective directors,
and each person, if any, who controls the Company within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company, the Subsidiary Guarantors or any such director, officer or
controlling person may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Time of Sale Prospectus, any issuer free writing prospectus as defined
in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) of the Securities Act, or the Prospectus or in any
amendment or supplement thereto, or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Time of Sale Prospectus, any issuer free
writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that
the Company has filed, or is required to file, pursuant to Rule 433(d) of the Securities Act, or
the Prospectus, or in any amendment or supplement thereto, any material fact required to be stated
therein or necessary to make the statements therein in light of the circumstances under which they
were made not misleading, but in each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company through the Representative
by or on behalf of that Underwriter specifically for inclusion therein, which information consists
solely of the information specified in Section 8(e), and shall reimburse the Company and any such
director, officer or controlling person for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any liability that any
Underwriter may otherwise have to the Company, the Subsidiary Guarantors or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim
or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it may have under this
Section 8 except to the extent it has been materially prejudiced by such failure and, provided
further, that the failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8. If any such claim
or action shall be brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that the Representative
shall have the right to employ one
20
counsel to represent jointly the Underwriters and their respective directors, officers,
employees and controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Underwriters against the Company under this Section
8 if, in the reasonable judgment of the Representative, it is advisable for the Underwriters,
directors, officers, employees and controlling persons to be jointly represented by such counsel,
and in that event the reasonable fees and expenses of such separate counsel shall be paid by the
Company. No indemnifying party shall (i) without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or proceeding and does not include any
findings of fact or admissions of fault or culpability as to the indemnified party or (ii) be
liable for any settlement of any such action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or
if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or liability by reason
of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any reason be unavailable
to or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) in respect of
any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect
the relative benefits received by the Company and the Subsidiary Guarantors, on the one hand, and
the Underwriters on the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Subsidiary Guarantors, on the one hand, and the Underwriters
on the other with respect to the statements or omissions which resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Subsidiary Guarantors on the one hand and
the Underwriters on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by the Company and the Subsidiary Guarantors, on the
one hand, and the total discounts and commissions received by the Underwriters with respect to the
Securities purchased under this Agreement, on the other hand, bear to the total gross proceeds from
the offering of the Securities under this Agreement. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the Subsidiary
Guarantors and the Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8 were to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such
21
purpose) or by any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified party as a result
of the loss, claim, damage or liability, or action in respect thereof, referred to above in this
Section 8 shall be deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending or preparing to defend any such action or claim. Notwithstanding the provisions of this
Section 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes purchased by it was resold to the public exceeds the
amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason
of any untrue or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters obligations to contribute as provided in this Section 8(d) are several in
proportion to their respective Purchase obligations and not joint.
(e) The Underwriters severally confirm and the Company and the Subsidiary Guarantors
acknowledge that the names of the Underwriters set forth on the cover page of, and the names of the
underwriters appearing in the table on page S-48, the first sentence of the paragraph under the
heading Commissions and Discounts on page S-48, the third sentence of the paragraph under the
heading New Issue of Notes on page S-49 and the first two paragraphs under the heading Short
Positions on page S-49 of, the Prospectus are correct and constitute the only information
concerning such Underwriters furnished in writing to the Company and the Subsidiary Guarantors by
or on behalf of the Underwriters specifically for inclusion in the Registration Statement, the Time
of Sale Prospectus and the Prospectus.
SECTION 9. Defaulting Underwriters.
If, on the Closing Date, any Underwriter defaults in the performance of its obligations under
this Agreement, the remaining non-defaulting Underwriters shall be obligated to purchase the Notes
that the defaulting Underwriter agreed but failed to purchase on such Closing Date; provided,
however, that the remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Notes on such Closing Date if the total amount of the Notes which the defaulting Underwriter
agreed but failed to purchase on such date exceeds 9.09% of the total amount of Notes to be
purchased on such Closing Date, and the non-defaulting Underwriters shall not be obligated to
purchase more than 110% of the amount of Notes which they agreed to purchase on such Closing Date
pursuant to the terms of Section 3. If the foregoing maximums are exceeded, the non-defaulting
Underwriters, or those other Underwriters satisfactory to the Representative who so agree, shall
have the right, but shall not be obligated, to purchase, all of the Notes to be purchased on such
Closing Date. If the non-defaulting Underwriters do not elect to purchase the Notes which the
defaulting Underwriter agreed but failed to purchase on such Closing Date, this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters or the Company, except
that the Company will continue to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11. As used in this Agreement, the term Underwriter includes, for all purposes of
this Agreement unless the context requires otherwise, any party not listed in Schedule II hereto
who, pursuant to this Section 9, purchases the Notes which a defaulting Underwriter agreed but
failed to purchase.
22
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Company and the Subsidiary Guarantors for damages caused by its default. If the
non-defaulting Underwriter is obligated or agrees to purchase the Notes of the defaulting or
withdrawing Underwriter, either the non-defaulting Underwriter or the Company may postpone the
Closing Date for up to seven full business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be necessary in the Prospectus, in
the Time of Sale Prospectus or in any other document or arrangement.
SECTION 10. Termination. The obligations of the Underwriters hereunder may be terminated by
the Representative by notice given to and received by the Company prior to delivery of and payment
for the Notes if, prior to that time, any of the events described in Sections 7(k), 7(l) and (m)
shall have occurred or if the Underwriters shall decline to purchase the Notes for any reason
permitted under this Agreement.
SECTION 11. Reimbursement of Underwriters Expenses. If the Company and the Subsidiary
Guarantors shall fail to deliver the Securities to the Underwriters by reason of any failure,
refusal or inability on the part of the Company and the Subsidiary Guarantors to perform any
agreement on its part to be performed, or because any other condition of the Underwriters
obligations hereunder required to be fulfilled by the Company and the Subsidiary Guarantors is not
fulfilled, the Company and the Subsidiary Guarantors will reimburse the Underwriters for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements of counsel) incurred
by the Underwriters in connection with this Agreement and the proposed purchase of the Securities,
and upon demand the Company and the Subsidiary Guarantors shall pay the full amount thereof to the
Representative.
SECTION 12. Notices, etc. All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile transmission to
the care of Banc of America Securities LLC, One Bryant Park, New York, New York, 10036, Attention:
Legal Department (Fax: (212-901-7897), with a copy to Shearman & Sterling LLP, 599 Lexington
Avenue, New York, New York 10022, Attention: David J. Beveridge, Esq. (Fax: (646) 848-7711);
(b) if to the Company and the Subsidiary Guarantors, shall be delivered or sent by mail or
facsimile transmission to the Company, 701 Market Street, St. Louis, MO. 63101-1826, Attention:
Chief Financial Officer, (Fax: (314) 342-7597), with a copy to Simpson Thacher & Bartlett LLP, 425
Lexington Avenue, New York, NY 10017-3909, Attention: Rise B. Norman, Esq. (Fax: (212) 455-2502);
provided, however, that any notice to an Underwriter pursuant to Section 8(d) shall be delivered or
sent by mail or facsimile transmission to such Underwriter at its address set forth in its
acceptance telex to Banc of America Securities LLC, which address will be supplied to any other
party hereto by Banc of America Securities LLC upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof. The Company shall be
entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of
the Underwriters by Banc of America Securities LLC.
23
SECTION 13. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the Underwriters, the Company, the Subsidiary Guarantors and their
respective personal representatives and successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the representations,
warranties, indemnities and agreements of the Company and the Subsidiary Guarantors contained in
this Agreement shall also be deemed to be for the benefit of the directors, officers, employees of
the Underwriters and each person or persons, if any, who control any Underwriters within the
meaning of Section 15 of the Securities Act and (b) the indemnity agreement of the Underwriters
contained in Section 8(b) of this Agreement shall be deemed to be for the benefit of directors,
officers and any person controlling the Company and the Subsidiary Guarantors within the meaning of
Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision contained herein.
SECTION 14. Survival. The respective indemnities, representations, warranties and agreements
of the Company, the Subsidiary Guarantors and the Underwriters contained in this Agreement or made
by or on behalf on them, respectively, pursuant to this Agreement, shall survive the delivery of
and payment for the Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any of them.
SECTION 15. Definition of the Terms Business Day and Subsidiary. For purposes of this
Agreement, (a) business day means each Monday, Tuesday, Wednesday, Thursday or Friday which is
not a day on which banking institutions in New York are generally authorized or obligated by law or
executive order to close and (b) subsidiary has the meaning set forth in Rule 405 of the
Securities Act.
SECTION 16. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Securities, represents the entire agreement between the Company and
the Underwriters with respect to the preparation of any Preliminary Prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the
Securities.
(b) The Company acknowledges that in connection with the offering of the Securities: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not superseded
by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Securities.
SECTION 17. Jurisdiction. Each of the parties hereto irrevocably consents to the jurisdiction
of the courts of the State of New York and the courts of the United States of America located in
the Borough of Manhattan, The City of New York, over any suit, action or proceeding
24
with respect to this Agreement or the transactions contemplated hereby. Each of the parties
hereto waives any objection that it may have to the venue of any suit, action or proceeding with
respect to this Agreement or the transactions contemplated hereby in the courts of the State of New
York or the courts of the United States of America, in each case, located in the Borough of
Manhattan, The City of New York or that such suit, action or proceeding brought in the courts of
the State of New York or United States of America, in each case, located in the Borough of
Manhattan, The City of New York was brought in an inconvenient court and agrees not to plead or
claim the same.
SECTION 18. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of New York.
SECTION 19. Counterparts. This Agreement may be executed in multiple counterparts and, if
executed in counterparts, the executed counterparts shall each be deemed to be an original but all
such counterparts shall together constitute one and the same instrument.
SECTION 20. Headings. The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
25
If the foregoing correctly sets forth the agreement among the Company, the Subsidiary
Guarantors and the Underwriters, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours, PEABODY ENERGY CORPORATION |
||||
By: | /s/ Walter L. Hawkins, Jr. | |||
Walter L. Hawkins, Jr. | ||||
Senior Vice President Finance and Treasurer | ||||
SIGNATURE PAGE TO UNDERWRITING AGREEMENT
GUARANTORS | ||
AMERICAN LAND DEVELOPMENT, LLC | ||
AMERICAN LAND HOLDINGS OF COLORADO, LLC | ||
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC | ||
AMERICAN LAND HOLDINGS OF INDIANA, LLC | ||
AMERICAN LAND HOLDINGS OF KENTUCKY, LLC | ||
AMERICAN LAND HOLDINGS OF WEST VIRGINIA, LLC | ||
ARID OPERATIONS, INC. | ||
BIG RIDGE, INC. | ||
BIG SKY COAL COMPANY | ||
BLACK HILLS MINING COMPANY, LLC | ||
BTU EMPIRE COMPANY, LLC | ||
BTU WESTERN RESOURCES, INC. | ||
CABALLO COAL, LLC | ||
CABALLO GRANDE, LLC | ||
CASEYVILLE DOCK COMPANY, LLC | ||
CENTRAL STATES COAL RESERVES OF ILLINOIS, LLC | ||
CENTRAL STATES COAL RESERVES OF INDIANA, LLC | ||
CENTURY MINERAL RESOURCES, INC. | ||
COAL RESERVES HOLDING LIMITED LIABILITY COMPANY NO. 1 | ||
COALSALES II, LLC | ||
COLORADO YAMPA COAL COMPANY | ||
CONSERVANCY RESOURCES, LLC | ||
COTTONWOOD LAND COMPANY | ||
CYPRUS CREEK LAND COMPANY | ||
CYPRUS CREEK LAND RESOURCES, LLC | ||
DYSON CREEK COAL COMPANY, LLC | ||
DYSON CREEK MINING COMPANY, LLC | ||
EL SEGUNDO COAL COMPANY, LLC | ||
ELKLAND HOLDINGS, LLC | ||
FALCON COAL COMPANY, LLC | ||
GALLO FINANCE COMPANY | ||
GOLD FIELDS CHILE, LLC | ||
GOLD FIELDS MINING, LLC | ||
GOLD FIELDS ORTIZ, LLC | ||
HAYDEN GULCH TERMINAL, LLC | ||
HIGHWALL MINING SERVICES COMPANY | ||
HILLSIDE RECREATIONAL LANDS, LLC |
SIGNATURE PAGE TO UNDERWRITING AGREEMENT
HMC MINING, LLC | ||
ILLINOIS LAND HOLDINGS, LLC | ||
INDEPENDENCE MATERIAL HANDLING, LLC | ||
JAMES RIVER COAL TERMINAL, LLC | ||
JUNIPER COAL COMPANY | ||
KAYENTA MOBILE HOME PARK, INC. | ||
KENTUCKY SYNGAS, LLC | ||
LIVELY GROVE ENERGY, LLC | ||
LIVELY GROVE ENERGY PARTNERS, LLC | ||
MARIGOLD ELECTRICITY, LLC | ||
MIDCO SUPPLY AND EQUIPMENT COMPANY | ||
MIDWEST COAL ACQUISITION CORP. | ||
MIDWEST COAL RESERVES OF ILLINOIS, LLC | ||
MIDWEST COAL RESERVES OF INDIANA, LLC | ||
MUSTANG ENERGY COMPANY, LLC | ||
NEW MEXICO COAL RESOURCES, LLC | ||
PEABODY AMERICA, INC. | ||
PEABODY ARCHVEYOR, LLC | ||
PEABODY ARCLAR MINING, LLC | ||
PEABODY BEAR RUN MINING, LLC | ||
PEABODY BEAR RUN SERVICES, LLC | ||
PEABODY CARDINAL GASIFICATION, LLC | ||
PEABODY COALSALES, LLC | ||
PEABODY COALTRADE INTERNATIONAL (CTI), LLC | ||
PEABODY COALTRADE, LLC | ||
PEABODY COLORADO OPERATIONS, LLC | ||
PEABODY COLORADO SERVICES, LLC | ||
PEABODY COULTERVILLE MINING, LLC | ||
PEABODY DEVELOPMENT COMPANY, LLC | ||
PEABODY ELECTRICITY, LLC | ||
PEABODY EMPLOYMENT SERVICES, LLC | ||
PEABODY ENERGY GENERATION HOLDING COMPANY | ||
PEABODY ENERGY INVESTMENTS, INC. | ||
PEABODY ENERGY SOLUTIONS, INC. | ||
PEABODY GATEWAY NORTH MINING, LLC | ||
PEABODY GATEWAY SERVICES, LLC | ||
PEABODY HOLDING COMPANY, LLC | ||
PEABODY ILLINOIS SERVICES, LLC | ||
PEABODY INDIANA SERVICES, LLC | ||
PEABODY INTERNATIONAL INVESTMENTS, INC. |
SIGNATURE PAGE TO UNDERWRITING AGREEMENT
PEABODY INTERNATIONAL SERVICES, INC. | ||
PEABODY INVESTMENTS CORP. | ||
PEABODY MIDWEST MANAGEMENT SERVICES, LLC | ||
PEABODY MIDWEST MINING, LLC | ||
PEABODY MIDWEST OPERATIONS, LLC | ||
PEABODY MIDWEST SERVICES, LLC | ||
PEABODY NATURAL GAS, LLC | ||
PEABODY NATURAL RESOURCES COMPANY | ||
PEABODY NEW MEXICO SERVICES, LLC | ||
PEABODY OPERATIONS HOLDING, LLC | ||
PEABODY POWDER RIVER OPERATIONS, LLC | ||
PEABODY POWDER RIVER SERVICES, LLC | ||
PEABODY POWERTREE INVESTMENTS, LLC | ||
PEABODY RECREATIONAL LANDS, LLC | ||
PEABODY ROCKY MOUNTAIN MANAGEMENT SERVICES, LLC | ||
PEABODY ROCKY MOUNTAIN SERVICES, LLC | ||
PEABODY SERVICES HOLDING, LLC | ||
PEABODY SOUTHWEST, LLC | ||
PEABODY SOUTHWESTERN COAL COMPANY | ||
PEABODY TERMINAL HOLDING COMPANY, INC. | ||
PEABODY TERMINALS, LLC | ||
PEABODY TWENTYMILE MINING, LLC | ||
PEABODY VENEZUELA COAL CORP. | ||
PEABODY VENTURE FUND, LLC | ||
PEABODY-WATERSIDE DEVELOPMENT, LLC | ||
PEABODY WESTERN COAL COMPANY | ||
PEABODY WILD BOAR MINING, LLC | ||
PEABODY WILD BOAR SERVICES, LLC | ||
PEABODY WYOMING SERVICES, LLC | ||
PEC EQUIPMENT COMPANY, LLC | ||
POINT PLEASANT DOCK COMPANY, LLC | ||
POND RIVER LAND COMPANY | ||
PORCUPINE PRODUCTION, LLC | ||
PORCUPINE TRANSPORTATION, LLC | ||
POWDER RIVER COAL, LLC | ||
RIVERVIEW TERMINAL COMPANY | ||
SAGE CREEK COAL COMPANY, LLC | ||
SAGE CREEK HOLDINGS, LLC | ||
SCHOOL CREEK COAL COMPANY, LLC |
SIGNATURE PAGE TO UNDERWRITING AGREEMENT
SCHOOL CREEK COAL RESOURCES, LLC | ||
SENECA COAL COMPANY, LLC | ||
SHOSHONE COAL CORPORATION | ||
STAR LAKE ENERGY COMPANY, L.L.C. | ||
SUGAR CAMP PROPERTIES, LLC | ||
THOROUGHBRED GENERATING COMPANY, LLC | ||
THOROUGHBRED MINING COMPANY, LLC | ||
TWENTYMILE COAL, LLC | ||
WEST ROUNDUP RESOURCES, LLC | ||
WILLIAMS FORK COAL COMPANY, LLC | ||
WYOMING NATURAL GAS, LLC |
By: | /s/ Walter L. Hawkins, Jr. | |||
Walter L. Hawkins, Jr. | ||||
Senior Vice President and Treasurer | ||||
SIGNATURE PAGE TO UNDERWRITING AGREEMENT
Acting as Representative of the several Underwriters named
in Schedule II hereto.
in Schedule II hereto.
Accepted:
Banc of America Securities LLC
By: | /s/ Lex Maultsby | |||
Authorized Representative | ||||
SIGNATURE PAGE TO UNDERWRITING AGREEMENT
SCHEDULE I
Time of Sale Prospectus
Time of Sale Prospectus
1 | the prospectus dated August 7, 2009 relating to the Shelf Securities |
2. | the preliminary prospectus supplement dated August 11, 2010 relating to the Securities |
3. | term sheet in the form attached hereto as Exhibit D |
SCHEDULE II
Principal Amount of Senior Notes | ||||
Underwriters | due 2020 | |||
Banc of America Securities LLC |
$ | 135,777,778 | ||
Morgan Stanley & Co. Incorporated |
101,833,333 | |||
HSBC Securities (USA) Inc. |
84,861,111 | |||
Citigroup Global Markets Inc. |
67,888,889 | |||
RBS Securities Inc. |
67,888,889 | |||
BNP Paribas Securities Corp. |
22,750,000 | |||
Credit Agricole Securities (USA) Inc. |
22,750,000 | |||
PNC Capital Markets LLC |
22,750,000 | |||
SG Americas Securities, LLC |
22,750,000 | |||
Wells Fargo Securities, LLC |
22,750,000 | |||
Barclays Capital Inc. |
9,750,000 | |||
BBVA Securities Inc. |
9,750,000 | |||
BMO Capital Markets Corp. |
9,750,000 | |||
Mitsubishi UFJ Securities (USA), Inc. |
9,750,000 | |||
Santander Investment Securities Inc. |
9,750,000 | |||
Standard Chartered Bank |
9,750,000 | |||
Daiwa Capital Markets America Inc. |
9,750,000 | |||
U.S. Bancorp Investments, Inc. |
9,750,000 | |||
Total |
$ | 650,000,000 | ||
EXHIBIT D
ISSUER FREE WRITING PROSPECTUS
SUPPLEMENTING PRELIMINARY PROSPECTUS DATED AUGUST 11, 2010
Filed pursuant to Rule 433
Registration Number: 333-161179
SUPPLEMENTING PRELIMINARY PROSPECTUS DATED AUGUST 11, 2010
Filed pursuant to Rule 433
Registration Number: 333-161179
PEABODY ENERGY CORPORATION
FINAL PRICING TERM SHEET
This Pricing Term Sheet is qualified in its entirety by reference to the Preliminary Prospectus
Supplement, dated August 11, 2010. The information in this Pricing Term Sheet supplements the
Preliminary Prospectus Supplement and supersedes the information in the Preliminary Prospectus
Supplement to the extent it is inconsistent with the information in the Preliminary Prospectus
Supplement. Capitalized terms used in this Pricing Term Sheet but not defined have the meanings
given them in the Preliminary Prospectus Supplement.
New Issue Summary | August 11, 2010 | |
Issuer:
|
Peabody Energy Corporation | |
Guarantors:
|
Subject to certain exceptions, our obligations under the notes will be jointly and severally guaranteed on a senior unsecured basis by all our existing domestic subsidiaries that guarantee the senior unsecured credit facility. In addition, any domestic subsidiary that executes a guarantee under our senior unsecured credit facility will be required to guarantee the notes. | |
Securities:
|
Senior Notes due 2020 | |
Principal Amount:
|
$650,000,000 | |
Net Proceeds (Before Expenses):
|
$641,875,000 | |
Coupon (Interest Rate):
|
6.500% | |
Price per Bond:
|
100.00% of principal amount | |
Yield to Maturity:
|
6.500% | |
Spread to Benchmark Treasury:
|
T+381 bps | |
Benchmark Treasury:
|
UST 3.5% due May 15, 2020 | |
Maturity:
|
September 15, 2020 | |
Interest:
|
Semi-Annual |
Interest Payments:
|
March 15 and September 15, commencing March 15, 2011 | |
Joint Book-Running Managers:
|
Banc of America Securities LLC Morgan Stanley & Co. Incorporated HSBC Securities (USA) Inc. Citigroup Global Markets Inc. RBS Securities Inc. | |
Senior Co-Managers:
|
BNP Paribas Securities Corp. Credit Agricole Securities (USA) Inc. PNC Capital Markets LLC SG Americas Securities, LLC Wells Fargo Securities, LLC | |
Co-Managers:
|
Barclays Capital Inc. BBVA Securities Inc. BMO Capital Markets Corp. Mitsubishi UFJ Securities (USA), Inc. Santander Investment Securities Inc. Standard Chartered Bank Daiwa Capital Markets America Inc. U.S. Bancorp Investments, Inc. | |
Trade Date:
|
August 11, 2010 | |
Settlement Date:
|
August 25, 2010 (T+10) | |
Optional Redemption:
|
Make-whole Call at Relevant Treasury Yield plus: | |
50 basis points | ||
CUSIP/ISIN:
|
704549 AH7 / US704549AH71 | |
Denominations:
|
$2,000 and integral multiples of $1,000 in excess thereof. |
The issuer and the guarantors have filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the issuer and the guarantors have
filed with the SEC for more complete information about the issuer, the guarantors and this
offering. You may get these documents for free by visiting EDGAR on the SEC Web site at
www.sec.gov. Alternatively, the book-running manager can arrange to send you the prospectus if you
request it by calling or e-mailing Banc of America Securities LLC at 1-800-294-1322 or
dg.prospectus_distribution@bofasecurities.com.
Any disclaimers or other notices that may appear below are not applicable to this communication and
should be disregarded. Such disclaimers or other notices were automatically generated as a result
of this communication being sent via Bloomberg or another email system.
Annex I
Subsidiary Guarantors
American Land Development, LLC
American Land Holdings of Colorado, LLC
American Land Holdings of Illinois, LLC
American Land Holdings of Indiana, LLC
American Land Holdings of Kentucky, LLC
American Land Holdings of West Virginia, LLC
Arid Operations Inc.
Big Ridge, Inc.
Big Sky Coal Company
Black Hills Mining Company, LLC
BTU Empire Company, LLC
BTU Western Resources, Inc.
Caballo Coal, LLC
Caballo Grande, LLC
Caseyville Dock Company, LLC
Central States Coal Reserves of Illinois, LLC
Central States Coal Reserves of Indiana, LLC
Century Mineral Resources, Inc.
Coal Reserves Holding Limited Liability Company No. 1
COALSALES II, LLC
Colorado Yampa Coal Company
Conservancy Resources, LLC
Cottonwood Land Company
Cyprus Creek Land Company
Cyprus Creek Land Resources, LLC
Dyson Creek Coal Company, LLC
Dyson Creek Mining Company, LLC
El Segundo Coal Company, LLC
Elkland Holdings, LLC
Falcon Coal Company, LLC
Gallo Finance Company
Gold Fields Chile, LLC
Gold Fields Mining, LLC
Gold Fields Ortiz, LLC
Hayden Gulch Terminal, LLC
Highwall Mining Services Company
Hillside Recreational Lands, LLC
HMC Mining, LLC
Illinois Land Holdings, LLC
Independence Material Handling, LLC
James River Coal Terminal, LLC
Juniper Coal Company
Kayenta Mobile Home Park, Inc.
American Land Holdings of Colorado, LLC
American Land Holdings of Illinois, LLC
American Land Holdings of Indiana, LLC
American Land Holdings of Kentucky, LLC
American Land Holdings of West Virginia, LLC
Arid Operations Inc.
Big Ridge, Inc.
Big Sky Coal Company
Black Hills Mining Company, LLC
BTU Empire Company, LLC
BTU Western Resources, Inc.
Caballo Coal, LLC
Caballo Grande, LLC
Caseyville Dock Company, LLC
Central States Coal Reserves of Illinois, LLC
Central States Coal Reserves of Indiana, LLC
Century Mineral Resources, Inc.
Coal Reserves Holding Limited Liability Company No. 1
COALSALES II, LLC
Colorado Yampa Coal Company
Conservancy Resources, LLC
Cottonwood Land Company
Cyprus Creek Land Company
Cyprus Creek Land Resources, LLC
Dyson Creek Coal Company, LLC
Dyson Creek Mining Company, LLC
El Segundo Coal Company, LLC
Elkland Holdings, LLC
Falcon Coal Company, LLC
Gallo Finance Company
Gold Fields Chile, LLC
Gold Fields Mining, LLC
Gold Fields Ortiz, LLC
Hayden Gulch Terminal, LLC
Highwall Mining Services Company
Hillside Recreational Lands, LLC
HMC Mining, LLC
Illinois Land Holdings, LLC
Independence Material Handling, LLC
James River Coal Terminal, LLC
Juniper Coal Company
Kayenta Mobile Home Park, Inc.
Kentucky Syngas, LLC
Lively Grove Energy, LLC
Lively Grove Energy Partners, LLC
Marigold Electricity, LLC
Midco Supply and Equipment Company
Midwest Coal Acquisition Corp.
Midwest Coal Reserves of Illinois, LLC
Midwest Coal Reserves of Indiana, LLC
Mustang Energy Company, LLC
New Mexico Coal Resources, LLC
Peabody America, Inc.
Peabody Archveyor, LLC
Peabody Arclar Mining, LLC
Peabody Bear Run Mining, LLC
Peabody Bear Run Services, LLC
Peabody Cardinal Gasification, LLC
Peabody COALSALES, LLC
Peabody COALTRADE International (CTI), LLC
Peabody COALTRADE, LLC
Peabody Colorado Operations, LLC
Peabody Colorado Services, LLC
Peabody Coulterville Mining, LLC
Peabody Development Company, LLC
Peabody Electricity, LLC
Peabody Employment Services, LLC
Peabody Energy Generation Holding Company
Peabody Energy Investments, Inc.
Peabody Energy Solutions, Inc.
Peabody Gateway North Mining, LLC
Peabody Gateway Services, LLC
Peabody Holding Company, LLC
Peabody Illinois Services, LLC
Peabody Indiana Services, LLC
Peabody International Investments, Inc.
Peabody International Services, Inc.
Peabody Investments Corp.
Peabody Midwest Management Services, LLC
Peabody Midwest Mining, LLC
Peabody Midwest Operations, LLC
Peabody Midwest Services, LLC
Peabody Natural Gas, LLC
Peabody Natural Resources Company
Peabody New Mexico Services, LLC
Peabody Operations Holding, LLC
Peabody Powder River Operations, LLC
Peabody Powder River Services, LLC
Lively Grove Energy, LLC
Lively Grove Energy Partners, LLC
Marigold Electricity, LLC
Midco Supply and Equipment Company
Midwest Coal Acquisition Corp.
Midwest Coal Reserves of Illinois, LLC
Midwest Coal Reserves of Indiana, LLC
Mustang Energy Company, LLC
New Mexico Coal Resources, LLC
Peabody America, Inc.
Peabody Archveyor, LLC
Peabody Arclar Mining, LLC
Peabody Bear Run Mining, LLC
Peabody Bear Run Services, LLC
Peabody Cardinal Gasification, LLC
Peabody COALSALES, LLC
Peabody COALTRADE International (CTI), LLC
Peabody COALTRADE, LLC
Peabody Colorado Operations, LLC
Peabody Colorado Services, LLC
Peabody Coulterville Mining, LLC
Peabody Development Company, LLC
Peabody Electricity, LLC
Peabody Employment Services, LLC
Peabody Energy Generation Holding Company
Peabody Energy Investments, Inc.
Peabody Energy Solutions, Inc.
Peabody Gateway North Mining, LLC
Peabody Gateway Services, LLC
Peabody Holding Company, LLC
Peabody Illinois Services, LLC
Peabody Indiana Services, LLC
Peabody International Investments, Inc.
Peabody International Services, Inc.
Peabody Investments Corp.
Peabody Midwest Management Services, LLC
Peabody Midwest Mining, LLC
Peabody Midwest Operations, LLC
Peabody Midwest Services, LLC
Peabody Natural Gas, LLC
Peabody Natural Resources Company
Peabody New Mexico Services, LLC
Peabody Operations Holding, LLC
Peabody Powder River Operations, LLC
Peabody Powder River Services, LLC
Peabody PowerTree Investments, LLC
Peabody Recreational Lands, LLC
Peabody Rocky Mountain Management Services, LLC
Peabody Rocky Mountain Services, LLC
Peabody Services Holding, LLC
Peabody Southwest, LLC
Peabody Southwestern Coal Company
Peabody Terminal Holding Company, Inc.
Peabody Terminals, LLC
Peabody Twentymile Mining, LLC
Peabody Venezuela Coal Corp.
Peabody Venture Fund, LLC
Peabody-Waterside Development, LLC
Peabody Western Coal Company
Peabody Wild Boar Mining, LLC
Peabody Wild Boar Services, LLC
Peabody Wyoming Services, LLC
PEC Equipment Company, LLC
Point Pleasant Dock Company, LLC
Pond River Land Company
Porcupine Production, LLC
Porcupine Transportation, LLC
Powder River Coal, LLC
Riverview Terminal Company
Sage Creek Coal Company, LLC
Sage Creek Holdings, LLC
School Creek Coal Company, LLC
School Creek Coal Resources, LLC
Seneca Coal Company, LLC
Shoshone Coal Corporation
Star Lake Energy Company, L.L.C.
Sugar Camp Properties, LLC
Thoroughbred Generating Company, LLC
Thoroughbred Mining Company, LLC
Twentymile Coal, LLC
West Roundup Resources, LLC
Williams Fork Coal Company, LLC
Wyoming Natural Gas, LLC
Peabody Recreational Lands, LLC
Peabody Rocky Mountain Management Services, LLC
Peabody Rocky Mountain Services, LLC
Peabody Services Holding, LLC
Peabody Southwest, LLC
Peabody Southwestern Coal Company
Peabody Terminal Holding Company, Inc.
Peabody Terminals, LLC
Peabody Twentymile Mining, LLC
Peabody Venezuela Coal Corp.
Peabody Venture Fund, LLC
Peabody-Waterside Development, LLC
Peabody Western Coal Company
Peabody Wild Boar Mining, LLC
Peabody Wild Boar Services, LLC
Peabody Wyoming Services, LLC
PEC Equipment Company, LLC
Point Pleasant Dock Company, LLC
Pond River Land Company
Porcupine Production, LLC
Porcupine Transportation, LLC
Powder River Coal, LLC
Riverview Terminal Company
Sage Creek Coal Company, LLC
Sage Creek Holdings, LLC
School Creek Coal Company, LLC
School Creek Coal Resources, LLC
Seneca Coal Company, LLC
Shoshone Coal Corporation
Star Lake Energy Company, L.L.C.
Sugar Camp Properties, LLC
Thoroughbred Generating Company, LLC
Thoroughbred Mining Company, LLC
Twentymile Coal, LLC
West Roundup Resources, LLC
Williams Fork Coal Company, LLC
Wyoming Natural Gas, LLC