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EXHIBIT 10.6
AEI HOLDING COMPANY, INC.
$200,000,000
10% SENIOR NOTES DUE 2007
PURCHASE AGREEMENT
November 6, 1997
NationsBanc Xxxxxxxxxx Securities, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
AEI Holding Company, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to you (the "Initial Purchaser")
$200,000,000 in aggregate principal amount of its 10% Senior Notes due 2007
(the "Notes"). The Notes will be fully and unconditionally guaranteed (the
"Guarantees" and, collectively with the Notes, the "Securities") on a senior
unsecured basis, jointly and severally, by each domestic subsidiary of the
Company listed on the signature page hereto (the "Guarantors"). The Securities
are to be issued pursuant to an indenture (the "Indenture"), dated as of the
Closing Date (as defined below), by and among the Company, the Guarantors and
IBJ Xxxxxxxx Bank & Trust Company. As used in this Agreement, references to the
"Issuers" shall mean the Company and the Guarantors.
The sale of the Securities to the Initial Purchaser will be
made without registration of the Securities under the Securities Act of 1933,
as amended (the "Securities Act"), in reliance upon exemptions from the
registration requirements of the Securities Act. You have advised the Issuers
that you will offer and sell the Securities purchased by you hereunder in
accordance with Section 3 hereof as soon as you deem advisable.
In connection with the sale of the Securities, the Issuers
have prepared a preliminary offering memorandum, dated October 21, 1997 (the
"Preliminary Memorandum") and a final offering memorandum, dated November 6,
1997 (the "Final Memorandum"). Each of the Preliminary Memorandum and the Final
Memorandum sets forth certain information concerning the Issuers and the
Securities. The Issuers hereby confirm that they have authorized the use of the
Preliminary Memorandum and the Final Memorandum, and any amendment or
supplement thereto, in connection with the offer and sale of the Securities by
the Initial Purchaser. Unless stated to the contrary, all references herein to
the Final Memorandum are to the Final Memorandum at the time of execution and
delivery of this Agreement (the "Execution Time") and are not meant to include
any amendment or supplement, or any information incorporated by reference
therein, subsequent to the Execution Time.
The Initial Purchaser and its direct and indirect transferees
will be entitled to the benefits of the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit A (the "Registration
Rights Agreement"), pursuant to which the Issuers will agree to use their best
efforts to commence an offer to exchange the Securities for securities that
have been registered under the Securities Act and that otherwise are identical
in all respects to the Securities (the "Exchange
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Securities"), or to cause a shelf registration statement to become effective
under the Securities Act and to remain effective for the period designated in
such Registration Rights Agreement.
1. REPRESENTATIONS AND WARRANTIES. The Issuers jointly and severally
represent and warrant to the Initial Purchaser as follows:
(a) The Preliminary Memorandum, at the date thereof, did not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The
Final Memorandum, at the date hereof, does not, and at the Closing
Date will not (and any amendment or supplement thereto, at the date
thereof and at the Closing Date, will not), contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Issuers make no representation or warranty as to the
information relating to the Initial Purchaser contained in or omitted
from the Preliminary Memorandum or the Final Memorandum, or any
amendment or supplement thereto, in reliance upon and in conformity
with information furnished in writing to the Issuers by or on behalf
of the Initial Purchaser specifically for inclusion therein.
(b) Neither the Issuers, nor any of their "Affiliates" (as
defined in Rule 501(b) of Regulation D under the Securities Act
("Regulation D")), nor any person acting on their behalf has, directly
or indirectly, made offers or sales of any security, or solicited
offers to buy any security, under circumstances that would require the
registration of the Securities under the Securities Act. Neither the
Issuers, nor any of their Affiliates, nor any person acting on their
behalf has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with
any offer or sale of the Securities, provided, that the Issuers make
no representation in this sentence regarding the Initial Purchaser.
The Securities satisfy the eligibility requirements of Rule 144A(d)(3)
under the Securities Act. The Final Memorandum and each amendment or
supplement thereto, as of its date, contains the information specified
in Rule 144A(d)(4) under the Act. The Issuers have been advised by the
National Association of Securities Dealers, Inc. Private Offerings,
Resales and Trading through Automated Linkages Market ("PORTAL") that
the Securities have been designated PORTAL eligible securities in
accordance with the rules and regulations of the National Association
of Securities Dealers, Inc.
(c) None of the Issuers nor any of their respective
affiliates or any person acting on its or their behalf (other than the
Initial Purchaser, as to whom the Issuers make no representation) has
engaged or will engage in any directed selling efforts within the
meaning of Regulation S under the Securities Act ("Regulation S") with
respect to the Securities. The Securities offered and sold in reliance
on Regulation S have been and will be offered and sold only in
offshore transactions. The sale of the Securities pursuant to
Regulation S is not part of a plan or scheme to evade the registration
provisions of the Securities Act. No registration under the Securities
Act of the Securities is required for the sale of the Securities to
the Initial Purchaser as contemplated hereby or for the Exempt Resales
(as defined below) assuming the accuracy of, and compliance with, the
Initial Purchaser's representations, warranties and agreements set
forth in this Agreement. The Securities sold pursuant to Regulation S
will initially be represented by a temporary global security as
required by Rule 903 of Regulation S.
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(d) Neither the Company nor any of its subsidiaries is, or
will be after giving effect to the offering and sale of the Securities
and the application of the proceeds therefrom as described in the
Final Memorandum, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(e) Assuming that (i) the representations and warranties and
covenants of the Initial Purchaser contained in Section 3 hereof are
true and correct and (ii) the Initial Purchaser complies with its
agreements contained in Section 3 hereof, (A) registration under the
Securities Act of the Securities or qualification of the Indenture
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), is not required in connection with the offer and sale
of the Securities to the Initial Purchaser in the manner contemplated
by the Final Memorandum or this Agreement and (B) initial resales of
the Securities by the Initial Purchaser on the terms and in the manner
set forth in the Final Memorandum and Section 3 hereof are exempt from
the registration requirements of the Securities Act.
(f) Since the respective dates as of which information is
given in the Preliminary Memorandum and the Final Memorandum, except
as otherwise stated therein, (i) there has been no material adverse
change in the condition (financial or otherwise), results of
operations, affairs or business prospects of the Company and its
subsidiaries considered as a whole, whether or not arising in the
ordinary course of business and (ii) there have been no material
transactions entered into by the Company or any of its subsidiaries
(collectively, a "Material Adverse Change").
(g) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the state
of its incorporation with corporate power and authority to own, lease
and operate its properties and conduct its business as described in
the Preliminary Memorandum and the Final Memorandum; and the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which the conduct of its
business requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not, singly or
in the aggregate, reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), results of
operations, affairs or business prospects of the Company and its
subsidiaries considered as a whole (a "Material Adverse Effect").
(h) All of the issued and outstanding capital stock of the
Company at November 6, 1997, was as set forth in the "Actual" column
under the caption "Capitalization" in the Preliminary Memorandum and
the Final Memorandum. All of the outstanding shares of capital stock
of the Company have been duly authorized and validly issued and are
fully paid and nonassessable. Attached as Schedule A hereto is a
complete and accurate list of each subsidiary of the Company. Each of
the subsidiaries of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Preliminary Memorandum and the Final
Memorandum and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which the
conduct of its business requires such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not, singly or in the aggregate, reasonably be expected to have
a Material Adverse Effect. All of the issued and outstanding capital
stock of each subsidiary has been duly authorized and validly issued
and is fully paid and nonassessable, and, except as described in the
Preliminary
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Memorandum and the Final Memorandum, all shares of capital
stock of each subsidiary are owned by the Company, directly or through
subsidiaries, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(i) This Agreement has been duly authorized, executed and
delivered by the Issuers and constitutes the valid and binding
agreement of the Issuers, enforceable against the Issuers in
accordance with its terms, except that (i) enforcement thereof may be
subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and (ii) the
enforceability of any indemnification or contribution provisions
thereof may be limited under applicable securities laws or the public
policies underlying such laws.
(j) The Notes have been duly authorized by the Company, and,
when executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Initial Purchaser
in accordance with this Agreement, will constitute the valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, and will be entitled to the benefits, of
the Indenture, except that enforcement thereof may be subject to (A)
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally and (B) general principles
of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law).
(k) The Guarantees endorsed on the Notes have been duly
authorized by each Guarantor and, when the Notes are executed and
authenticated in accordance with the provisions of the Indenture and
delivered to the Initial Purchaser in accordance with this Agreement,
the Guarantees will constitute the valid and binding obligation of the
Guarantors enforceable against the Guarantors in accordance with their
terms and will be entitled to the benefits of the Indenture except
that enforcement thereof may be subject to (A) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws now or hereafter in effect relating to or affecting creditors'
rights generally and (B) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law).
(l) The Indenture has been duly authorized by the Issuers.
When the Securities are delivered and paid for pursuant to this
Agreement on the Closing Date, the Indenture will have been duly
executed and delivered by the Issuers and, assuming the due execution
and delivery thereof by the Trustee, will constitute a valid and
binding agreement of the Issuers, enforceable against the Issuers in
accordance with its terms, except that enforcement thereof may be
subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(m) The Exchange Securities have been duly authorized and,
when duly executed, authenticated, issued and delivered, will be
validly issued and outstanding, and will constitute the valid and
binding obligations of the Issuers, entitled to the benefits of the
Indenture and enforceable against the Issuers in accordance with their
terms except that enforcement thereof
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may be subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(n) The Registration Rights Agreement has been duly
authorized by the Issuers and, when duly executed and delivered by the
Issuers (assuming the due execution and delivery by the Initial
Purchaser), will constitute a valid and binding agreement of the
Issuers, enforceable against the Issuers in accordance with its terms
except that (i) enforcement thereof may be subject to (A) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (B) general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law) and (ii) the enforceability of any indemnification or
contribution provisions thereof may be limited under applicable
securities laws or the public policies underlying such laws.
(o) On the Closing Date, the New Credit Agreement (as defined
in the Final Memorandum) and the guarantee of the obligations
thereunder by the Guarantors (a) shall have been duly authorized,
executed and delivered by the Company and the Guarantors,
respectively, and will constitute the valid and binding agreement of
the Company and the Guarantors, respectively, enforceable against the
Company and the Guarantors, as applicable, in accordance with their
terms except that enforcement thereof may be subject to (A)
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally and (B) general principles
of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law). On the Closing Date, no event of
default or event which, with the giving of notice or passage of time
or both, would constitute an event of default shall have occurred
under the New Credit Agreement or the guarantees thereof by the
Guarantors and all conditions to the extension of credit thereunder
shall have been satisfied without waiver (or with waiver if such
waiver is reasonably acceptable to the Initial Purchaser).
(p) On the Closing Date, a Subsidiary Intercompany Note (as
defined in the Final Memorandum) from the Company to Bowie Resources,
Limited, a majority-owned subsidiary of the Company ("Bowie"), (a)
shall have been duly authorized, executed and delivered by the Company
and Bowie and will constitute the valid and binding agreement of the
Company and Bowie, respectively, enforceable against the Company and
Bowie, as applicable, in accordance with their terms except that
enforcement thereof may be subject to (A) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws now or hereafter in effect relating to or affecting creditors'
rights generally and (B) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law). On the Closing Date, no event of default or event which, with
the giving of notice or passage of time or both, would constitute an
event of default shall have occurred under the Subsidiary Intercompany
Note and all conditions to the extension of credit thereunder shall
have been satisfied without waiver (or with waiver if such waiver is
reasonably acceptable to the Initial Purchaser).
(q) The execution, delivery and performance of this
Agreement, the Indenture, the Registration Rights Agreement, the New
Credit Agreement and the Subsidiary Intercompany Note by the Issuers
and Bowie (to the extent each is a party thereto), and the
consummation of
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the transactions contemplated hereby and thereby will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan or credit agreement or other agreement
or instrument to which either 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 properties or assets of the Company or any of
its subsidiaries are subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company
or any of its subsidiaries or any statute to which they may be subject
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 to the
extent any such conflict, breach, violation or default singly or in
the aggregate, would not reasonably be expected to have a Material
Adverse Effect); and except for such consents, approvals,
authorizations, registrations or qualifications as may be required
under applicable state securities and Blue Sky laws in connection with
the purchase and distribution of the Securities by the Initial
Purchaser or as set forth in the Registration Rights Agreement, 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, the Indenture, the Registration Rights Agreement, the New
Credit Agreement and the Subsidiary Intercompany Note by the Issuers
and Bowie (to the extent each is a party thereto), the consummation of
the transactions contemplated hereby and thereby, and the issuance and
sale of the Securities and the Exchange Securities by the Issuers.
(r) Neither the Company nor any of its subsidiaries is in
breach or violation of any of the terms or provisions of 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 properties or assets of the Company or any of its
subsidiaries are subject, nor is the Company or any of its
subsidiaries in violation of the provisions of its respective charter
or by-laws or any statute or any judgment, order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Company, any of its subsidiaries or any of their properties or
assets (except to the extent any such conflict, breach, violation or
default is cured at or prior to the Closing Date and within the grace
period applicable thereto or would not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect).
(s) As of the Closing Date, the Securities and the Indenture
will conform in all material respects to the descriptions thereof
contained in the Final Memorandum. As of the Closing Date, the
provisions of the Registration Rights Agreement and the New Credit
Agreement, to the extent that such provisions are summarized in the
Final Memorandum, will conform in all material respects to the
descriptions thereof contained in the Final Memorandum.
(t) Except as set forth in the Registration Rights Agreement,
there are no contracts, agreements or understandings between the
Company or any of its subsidiaries and any person granting such person
the right to require the Company or any of its subsidiaries to file a
registration statement under the Securities Act with respect to any
securities owned or to be owned by such person or to require the
Company or any of its subsidiaries to include such securities in any
securities being registered pursuant to any registration statement
filed by the Company or any of its subsidiaries under the Securities
Act.
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(u) Except as set forth in the Preliminary Memorandum and the
Final Memorandum, there is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending or, to the knowledge of the Issuers, threatened against or
affecting the Company or any of its subsidiaries, which would
reasonably be expected to result in a Material Adverse Change or,
singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect or materially and adversely affect the offering of the
Securities.
(v) The Company and each of its subsidiaries has good and
indefeasible title in fee simple to all real property and good and
indefeasible title to all personal property owned by it and necessary
in the conduct of the business of the Company or such subsidiary, in
each case free and clear of all liens, encumbrances and defects except
(i) such as are referred to in the Final Memorandum or (ii) such as do
not materially and adversely affect the value of such property to the
Company or such subsidiary, and do not interfere with the use made and
proposed to be made of such property by the Company or such subsidiary
to an extent that such interference would, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect. All leases
to which the Company or its subsidiaries is a party are valid and
binding, and no default has occurred or is continuing thereunder which
could, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect or materially and adversely affect the
offering of the Securities, and the Company and its subsidiaries enjoy
peaceful and undisturbed possession under all such leases to which any
of them is a party as lessee (with such exceptions as do not
materially interfere with the use made by the Company or such
subsidiary). The Company and its subsidiaries possess adequate
certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, and except as set forth in
the Final Memorandum, neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(w) Each of Xxxxxx Xxxxxxxx LLP and Ernst & Young LLP, who
have certified certain financial statements of the Company and its
subsidiaries, are independent public accountants within the meaning of
Rule 101 of the Code of Professional Conduct of the American Institute
of Certified Public Accountants (the "AICPA"). The financial
statements included in the Preliminary Memorandum and the Final
Memorandum present fairly in all material respects the combined
financial position of the Company and its subsidiaries, on a combined
basis, as at the dates indicated and the results of their respective
operations and the changes in their combined financial position for
the periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved, except as indicated
therein, and comply as to form in all material respects with the
requirements applicable to such financial statements included in
registration statements under the Securities Act. The Company and each
of its subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the
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existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
The unaudited pro forma financial statements included in the
Preliminary Memorandum and the Final Memorandum have been prepared on
a basis consistent with the historical financial statements of the
Company and its subsidiaries and give effect to assumptions used in
the preparation thereof on a reasonable basis and in good faith and
present fairly the historical and proposed transactions contemplated
by the Preliminary Memorandum and the Final Memorandum; and such
unaudited pro forma financial statements comply as to form in all
material respects with the requirements applicable to pro forma
financial statements included in registration statements on Form S-1
under the Act. The other unaudited pro forma financial and statistical
information and data included in the Preliminary Memorandum and the
Final Memorandum are, in all material respects, accurately presented
and prepared on a basis consistent with the pro forma financial
statements.
The historical and unaudited pro forma financial statements
included in the Preliminary Memorandum and the Final Memorandum
constitute all of the financial statements that would be required to
be included in a registration statement on Form S-1 under the
Securities Act, except for the exclusion of Bowie financial statements
in the 1994 combined financial statements of AEI Holding Company, Inc.
(x) Neither the Company nor any of its subsidiaries is now
or, after giving effect to the issuance of the Securities, and the
application of the proceeds thereof, will be (i) insolvent, (ii) left
with unreasonably small capital with which to engage in its
anticipated businesses or (iii) incurring debts beyond its ability to
pay such debts as they become due.
(y) Except as would not reasonably be expected to have a
Material Adverse Effect, the Company and its subsidiaries own, or
otherwise possess the right to use, all patents, trademarks, service
marks, trade names and copyrights, all applications and registrations
for each of the foregoing, and all other proprietary rights and
confidential information used in the conduct of their respective
businesses as currently conducted; and neither the Company nor any of
its subsidiaries has received any notice or is otherwise aware, of any
infringement of or conflict with the rights of any third party with
respect to any of the foregoing which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
reasonably be expected to have a Material Adverse Effect. The Company
and its subsidiaries do not own or otherwise possess the right to use
any patents, trademarks, service marks, trade names and copyrights,
the loss of which would result in a Material Adverse Effect.
(z) The Company and its subsidiaries are (i) in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
In connection with the preparation of the Offering Memorandum, the
Company conducted a review of the effect of
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Environmental Laws on the business, operations and properties
of the Company and its subsidiaries, in the course of which it
identified and evaluated associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
reclamation, clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would
not, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(aa) No labor problem or disturbance with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the
Issuers, is threatened which, singly or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
(bb) Neither the Company nor any of its subsidiaries, nor, to
any Issuers' knowledge, any director, officer, agent, employee,
stockholder or other person, in any such case, acting on behalf of the
Company or any of its subsidiaries, has used any corporate funds
during the last five years for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is
in violation of any provision of the Foreign Corrupt Practices Act of
1977, as amended; or made any bribe, payoff, influence payment,
kickback or other payment that is unlawful.
(cc) Neither the Company nor any of its subsidiaries has
taken, and none of them will take, any action that would cause this
Agreement or the issuance or sale of the Securities and Exchange
Securities to violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System or analogous foreign laws and
regulations.
(dd) The Company and its subsidiaries have complied with all
provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws
of Florida) relating to doing business with the Government of Cuba or
with persons or affiliates located in Cuba.
(ee) Other than as specifically identified in the Offering
Memorandum or as set forth on Schedule B hereto, neither the Company
nor any subsidiary is a party to any contract or agreement that would
be required to be filed with the Commission as an exhibit to a
registration statement on Form S-1 pursuant to entries (2), (4) and
(10) of the Exhibit Table of Item 601 of Regulation S-K under the
Securities Act.
(ff) No Issuer or Affiliate of any Issuer has sold,
offered for sale or solicited offers to buy or otherwise negotiated in
respect of any security (as defined in the Securities Act) in a
transaction that would require the registration under the Securities
Act of the Securities.
(gg) Neither the Company nor any subsidiary is a "public
utility" or a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
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 Issuers agree to sell to the Initial Purchaser and the Initial
Purchaser agrees to purchase the aggregate principal amount of Securities set
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forth opposite its name as shown in Schedule C hereto, at a purchase price
equal to 97.25% of the principal amount thereof.
The Issuers shall not be obligated to deliver any of the Securities to
be delivered except upon payment for all the Securities to be purchased as
provided herein.
3. SALE AND RESALE OF THE SECURITIES BY THE INITIAL PURCHASER. The
Initial Purchaser represents and warrants to the Issuers that:
(a) It will offer the Securities to be purchased hereunder
for resale only upon the terms and conditions set forth in this
Agreement and in the Final Memorandum.
(b) It (i) will not solicit offers for, or offer or sell, the
Securities by means of any form of general solicitation or general
advertising within the meaning of Regulation D or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act, and (ii) will solicit offers for the Securities only
from, and will offer, sell or deliver (the "Exempt Resales") the
Securities, as part of its initial offering, only to the following
persons (each an "Eligible Purchaser"): (A) persons whom the Initial
Purchaser reasonably believes to be qualified institutional buyers
("QIBs") as defined in Rule 144A under the Securities Act, as such
rule may be amended from time to time ("Rule 144A") or, if any such
person is buying for one or more institutional accounts for which such
person is acting as fiduciary or agent, only when such person has
represented to such Initial Purchaser that each such account is a QIB,
to whom notice has been given that such sale or delivery is being made
in reliance on Rule 144A, (B) to a limited number of institutional
accredited investors as defined in Rule 501(a) (1), (2), (3) or (7)
under Regulation D ("Accredited Investors") that, prior to their
purchase of the Securities, execute and deliver a letter containing
certain representations and agreements in the form attached as Annex A
to the Final Memorandum and (C) outside the United States in offshore
transactions in reliance on Regulation S.
(c) With respect to Securities sold in reliance on Regulation
S, (i) neither the Initial Purchaser nor any of its affiliates nor
anyone acting on its behalf has offered or sold, or will offer or
sell, any Securities by means of any directed selling efforts (as
defined in Rule 902 of Regulation S) in the United States, (ii) at or
prior to confirmation of all sales of Securities made in reliance on
Regulation S, it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that
purchases the Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and
may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons (i) as part of a
distribution thereof at any time or (ii) otherwise until 40
days after the later of the date of the commencement of the
offering and the closing date, except in either case in
accordance with an exemption from or in a transaction not
subject to the Securities Act. Terms used above have the
meanings given them by Regulation S."
The sale of the Securities to non-U.S. persons in offshore
transactions is not part of a plan or scheme to avoid the registration
requirements of the Securities Act.
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(d) (i) It has not solicited, and will not solicit, offers to
purchase any of the Securities from, (ii) it has not sold, and will
not sell, any of the Securities to, and (iii) it has not distributed,
and will not distribute, the Preliminary Memorandum or the Final
Memorandum to, any person or entity in any jurisdiction outside of the
United States except, in each case, in compliance in all material
respects with all applicable laws of such jurisdiction. For purposes
of this Agreement, "United States" means the United States of America,
its territories, its possessions (including the Commonwealth of Puerto
Rico), and other areas subject to its jurisdiction.
(e) Unless prohibited by applicable law, (i) it will furnish
to each person to whom it offers any Securities, a copy of the
Preliminary Memorandum (as amended or supplemented) or Final
Memorandum or (unless delivery of such Preliminary Memorandum is
required by applicable law) shall inform each such person that a copy
of such Preliminary Memorandum or the Final Memorandum will be
available upon request and (ii) it will furnish to each person to whom
it sells Securities a copy of the Final Memorandum (as then amended or
supplemented by applicable law) and shall inform each such person that
a copy of such Final Memorandum will be available upon request.
4. DELIVERY OF AND PAYMENT FOR THE SECURITIES. Delivery of and payment
for the Securities shall be made at the office of Xxxxxx & Xxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:00 A.M., New York City time, on November 12,
1997, or at such other date or place as shall be determined by agreement
between the Initial Purchaser and the Company. This date and time are sometimes
referred to herein as the "Closing Date." On the Closing Date, the Issuers
shall deliver or cause to be delivered the Securities to the Initial Purchaser
for the account of the Initial Purchaser against payment to or upon the order
of the Company of the purchase price by wire transfer in federal (same-day)
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation
of the Initial Purchaser hereunder. Upon delivery, the Securities shall be in
definitive fully registered form and registered in the name of Cede & Co., as
nominee of the Depository Trust Company ("DTC"), or such other name or names
and in such denominations as the Initial Purchaser shall request in writing not
less than one business day prior to the Closing Date. For the purpose of
expediting the checking and packaging of the Securities, the Issuers shall make
the Securities available for inspection by the Initial Purchaser in New York,
New York, not later than 2:00 P.M., New York City time, on the business day
prior to the Closing Date.
5. FURTHER AGREEMENTS OF THE ISSUERS. The Issuers jointly and
severally agree with the Initial Purchaser as set forth below in this Section
5:
(a) The Issuers will furnish to the Initial Purchaser,
without charge, as many copies of the Final Memorandum and any
supplements and amendments thereto as they may reasonably request.
(b) Prior to making any amendment or supplement to the
Preliminary Memorandum or the Final Memorandum, the Issuers shall
furnish a copy thereof to the Initial Purchaser and counsel to the
Initial Purchaser and will not effect any such amendment or supplement
to which the Initial Purchaser shall reasonably object by notice to
the Company after a reasonable period to review.
(c) If, at any time prior to completion of the distribution
of the Securities by the Initial Purchaser, any event shall occur or
condition exist as a result of which it is necessary, in
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the opinion of counsel for the Initial Purchaser or counsel
for the Issuers, to amend or supplement the Final Memorandum in order
that the Final Memorandum will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in light of the
circumstances existing at the time it is delivered to a purchaser, or
if it is necessary to amend or supplement the Final Memorandum to
comply with applicable law, the Issuers will promptly prepare such
amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Final Memorandum, as so amended
or supplemented, will comply with applicable law and furnish to the
Initial Purchaser such number of copies of such amendment or
supplement as they may reasonably request.
(d) So long as any Securities are outstanding and are
"Restricted Securities" within the meaning of Rule 144(a)(3) under the
Securities Act and during any period in which the Issuers are not
subject to Section 13 or 15(d) of the Exchange Act of 1934, as amended
(the "Exchange Act"), the Issuers will furnish to holders of the
Securities and prospective purchasers of Securities designated by such
holders, upon request of such holders or such prospective purchasers,
the information, if any, required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
(e) So long as the Securities and Exchange Securities are
outstanding, the Issuers will furnish to the Initial Purchaser copies
of any annual reports, quarterly reports and current reports filed
with the Securities and Exchange Commission ("SEC") on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
SEC, and such other documents, reports and information as shall be
furnished by the Issuers to the Trustee or to the holders of the
Securities and Exchange Securities pursuant to the Indenture.
(f) The Issuers will use their best efforts to qualify the
Securities for sale under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchaser reasonably designates and to
continue such qualifications in effect so long as reasonably required
for the distribution of the Securities. The Issuers will also arrange
for the determination of the eligibility for investment of the
Securities under the laws of such jurisdictions as the Initial
Purchaser reasonably requests. Notwithstanding the foregoing, the
Issuers shall not be obligated to qualify as a foreign corporation in
any jurisdiction in which they are not so qualified or to file a
general consent to service of process or to subject themselves to
taxation in respect of doing business in any jurisdiction in which it
is not otherwise subject.
(g) The Issuers will use their best efforts to permit the
Securities to be designated PORTAL securities in accordance with the
rules and regulations adopted by the National Association of
Securities Dealers, Inc. relating to trading in the PORTAL market and
to permit the Securities to be eligible for clearance and settlement
through DTC.
(h) Except following the effectiveness of any Registration
Statement (as defined in the Registration Rights Agreement) and except
for such offers as may be made as a result of, or subsequent to,
filing such Registration Statement or amendments thereto prior to the
effectiveness thereof, the Issuers will not, and will cause their
affiliates not to, solicit any offer to buy or offer to sell the
Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act.
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(i) The Issuers will take such steps as shall be necessary to
ensure that neither the Company nor any of its subsidiaries shall
become (i) an "investment company" within the meaning of the
Investment Company Act, or (ii) a "holding company" or a "subsidiary
company" or an "affiliate" of a holding company within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
(j) The Company and its subsidiaries will not, and will cause
their affiliates not to, take any action that would require the
registration under the Securities Act of the Securities (other than
pursuant to the Registration Rights Agreement) including, without
limitation, (i) engaging in any directed selling efforts (within the
meaning of Regulation S) during any applicable restricted period or
(ii) offering any other securities in a manner that would be
integrated with the transactions contemplated hereby.
(k) Prior to the consummation of the Exchange Offer or the
effectiveness of an applicable shelf registration statement if, in the
reasonable judgment of the Initial Purchaser, the Initial Purchaser or
any of its affiliates are required to deliver an offering memorandum
in connection with sales of, or market-making activities with respect
to, the Securities, (A) the Issuers will periodically amend or
supplement the Final Memorandum so that the information contained in
the Final Memorandum complies with the requirements of Rule 144A of
the Securities Act, (B) the Issuers will amend or supplement the Final
Memorandum when necessary to reflect any material changes in the
information provided therein so that the Final Memorandum will not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
light of the circumstances existing as of the date the Final
Memorandum is so delivered, not misleading and (C) the Issuers will
provide the Initial Purchaser with copies of each such amended or
supplemented Final Memorandum, as the Initial Purchaser may reasonably
request.
The Issuers hereby expressly acknowledge that the
indemnification and contribution provisions of Section 8 hereof are
specifically applicable and relate to each offering memorandum,
registration statement, prospectus, amendment or supplement referred
to in this Section 5(k).
(l) The Issuers will do all things reasonably necessary to
satisfy the closing conditions set forth in Section 7 hereof.
6. EXPENSES. The Issuers, jointly and severally, agree to pay (a) the
costs incident to the authorization, issuance, sale and delivery of the
Securities and Exchange Securities and any issue or stamp taxes payable in that
connection; (b) the costs incident to the preparation and printing of the
Preliminary Memorandum, the Final Memorandum and any amendments, supplements
and exhibits thereto; (c) the costs of distributing the Preliminary Memorandum,
the Final Memorandum and any amendment or supplement thereto; (d) the fees and
expenses of qualifying the Securities and Exchange Securities under the
securities laws of the several jurisdictions as provided in Section 5(f) hereof
and of preparing, printing and distributing a Blue Sky Memorandum (including
reasonable related fees and expenses of counsel to the Initial Purchaser); (e)
the cost of printing the Securities and the Exchange Securities; (f) the fees
and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of any counsel for the Trustee in connection with the Indenture
and the Securities and Exchange Securities; (g) any fees paid to rating
agencies in connection with the rating of the Securities and Exchange
Securities; (h) the costs and expenses of DTC and its nominee, including its
book-entry system; (i) all expenses and listing fees incurred in connection
with the application for quotation of the
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Securities on the PORTAL market; and (j) all other costs and expenses incident
to the performance of the obligations of the Issuers under this Agreement.
7. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations of
the Initial Purchaser to purchase the Securities shall be subject to the
accuracy of the representations and warranties on the part of the Issuers
contained herein at the Execution Time and the Closing Date, to the accuracy of
the statements of the Issuers made in any certificates pursuant to the
provisions hereof, to the performance by the Issuers of their obligations
hereunder in all material respects and to the following additional conditions:
(a) The Initial Purchaser shall not have discovered and
disclosed to the Company on or prior to the Closing Date that the
Final Memorandum or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of Xxxxxx & Xxxxxxx,
counsel for the Initial Purchaser, is material or omits to state a
fact which, in the opinion of such counsel, is material and is
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) The Final Memorandum shall have been printed and copies
distributed to the Initial Purchaser as soon as practicable but in no
event later than on the Business Day following the date of this
Agreement or at such later date and time as to which the Initial
Purchaser may agree, and no stop order suspending the qualification or
exemption from qualification of the Securities in any jurisdiction
referred to in Section 5(f) hereof shall have been issued and no
proceeding for that purpose shall have been commenced or shall be
pending or threatened.
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency which would, as of the Closing Date, singly or in
the aggregate, reasonably be expected to have a Material Adverse
Effect; no action, suit or proceeding shall have been commenced and be
pending against or affecting or, to the knowledge of the Company,
threatened against, the Company or any of its subsidiaries before any
court or arbitrator or any governmental body, agency or official that,
singly or in the aggregate, if adversely determined, would reasonably
be expected to result in a Material Adverse Effect; and no stop order
shall have been issued by the SEC or any governmental agency of any
jurisdiction referred to in Section 5(f) hereof preventing the use of
the Final Memorandum, or any amendment or supplement thereto, or which
would reasonably be expected to have a Material Adverse Effect.
(d) Since the dates as of which information is given in the
Final Memorandum and other than as set forth in the Final Memorandum,
(i) there shall not have been any Material Adverse Change, or any
development that is reasonably likely to result in a Material Adverse
Change, or any material change in the long-term debt, or material
increase in the short-term debt, from that set forth in the Final
Memorandum; (ii) no dividend or distribution of any kind shall have
been declared, paid or made by the Company on any class of its capital
stock; (iii) the Company and its subsidiaries shall not have incurred
any liabilities or obligations, direct or contingent, that are
material, individually or in the aggregate, to the Company and its
subsidiaries, taken as a whole, and that are required to be disclosed
on a balance sheet or notes thereto in accordance with generally
accepted accounting principles and are not disclosed on the latest
balance sheet or notes thereto included in the Final Memorandum.
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(e) The Company shall have consummated the Organizational
Transactions (as defined in the Final Memorandum).
(f) Since the dates as of which information is given in the
Final Memorandum and other than as set forth in the Final Memorandum,
there shall not have been any material change in the contracts listed
on Schedule B hereto or otherwise discussed or disclosed in the Final
Memorandum under the caption "Business--Major Sales Contracts."
(g) The Initial Purchaser shall have received a certificate,
dated the Closing Date, signed on behalf of the Company by (i) Xxx
Xxxxx, Chief Executive Officer and (ii) Xxxxxx Xxxxxxx, Executive Vice
President (or, in the alternate, Xxxx Xxxx, Chief Financial Officer),
confirming that (A) such officers have participated in conferences
with other officers and representatives of the Issuers,
representatives of the independent public accountants of the Issuers
and representatives of counsel to the Issuers at which the contents of
the Final Memorandum and related matters were discussed and (B) the
matters set forth in paragraphs (b), (c), (d), (e) and (f) of this
Section 7 are true and correct as of the Closing Date.
(h) The Initial Purchaser shall have received a certificate,
dated the Closing Date, signed on behalf of the Company by Xxxxxx
Xxxxxxx, Executive Vice President (or, in the alternate, Xxx Xxxxx,
Treasurer and Controller), in form and substance satisfactory to the
Initial Purchaser, with respect to certain matters relating to the
disclosure in the Final Memorandum (i) under the caption "Projected
Pro Forma Combined Financial Data," (ii) in the column under the
heading "Pro Forma--Projected Fiscal Year 1997" under the caption
"Summary Unaudited Pro Forma and Projected Pro Forma Combined
Financial Data," (iii) referred to in footnote 1 to the table
following the first paragraph under the caption "Business--Mining
Operations--Coal Production," (iv) referred to in footnotes 2 and 3 to
the table in the first paragraph under the caption "Business--Major
Sales Contracts--Customers" and (v) referred to in footnote 1 to the
table in the second paragraph under the caption "Business--Major Sales
Contracts--Customers" and in the last sentence of footnote 3 to such
table.
(i) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement,
the Securities, the Exchange Securities, the Indenture, the
Registration Rights Agreement, the Final Memorandum, the New Credit
Agreement and all other legal matters relating to this Agreement and
the transactions contemplated hereby and thereby, shall be reasonably
satisfactory in all material respects to counsel for the Initial
Purchaser, and the Issuers shall have furnished to such counsel all
documents and information that they may reasonably request to enable
them to pass upon such matters.
(j) Xxxxx, Xxxx & Xxxxxxx, counsel for the Issuers, shall
have furnished to the Initial Purchaser its written opinion
(containing customary limitations and approvals that shall be
reasonably satisfactory in all material respects to the Initial
Purchaser's counsel), addressed to the Initial Purchaser and dated the
Closing Date, in form and substance reasonably satisfactory to the
Initial Purchaser, to the effect that:
(i) The Company and each of its subsidiaries is
validly existing as a corporation and is in good standing
under the laws of its jurisdiction of incorporation. The
Company and each of its subsidiaries is duly qualified to do
business and in good standing as foreign corporations in each
jurisdiction with respect to which it has certified to us
that they own property, maintain business or have employees
(except
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where failure to so qualify would not, singly or in
the aggregate, reasonably be expected to have a Material
Adverse Effect).
(ii) Assuming, (i) the accuracy of and compliance
with the representations, warranties and covenants of the
Issuers set forth in Section 1 of this Agreement, and (ii)
the accuracy of and compliance with the Initial Purchaser's
representations, warranties and covenants set forth in this
Agreement, the offer, issuance, sale and delivery of the
Securities to the Initial Purchaser, and the initial reoffer,
resale and delivery of the Securities by the Initial
Purchaser, as contemplated by this Agreement and the Final
Memorandum, do not require registration under the Securities
Act, or qualification of the Indenture under the Trust
Indenture Act, it being understood that no opinion is
expressed as to any subsequent resale of Securities or any
resale of Securities by any person other than the Initial
Purchaser.
(iii) Each of the Company and the Guarantors has the
corporate power and authority to execute and deliver, and to
consummate the transactions contemplated by, this Agreement;
the Company has the corporate power and authority to issue
and deliver the Notes as contemplated by this Agreement; and
the Guarantors have the corporate power and authority to
issue and deliver the Guarantees as contemplated by this
Agreement.
(iv) The execution and delivery of this Agreement
have been duly authorized by all requisite corporate action
of the Company and each Guarantor, and this Agreement has
been duly executed and delivered by the Company and each
Guarantor.
(v) The execution and delivery of the Indenture have
been duly authorized by all requisite corporate action of the
Company and each Guarantor; and the Indenture has been duly
executed and delivered by the Company and each Guarantor, and
assuming due authorization, execution and delivery by the
Trustee, is a valid and binding agreement of the Company and
each Guarantor, enforceable against the Company and each
Guarantor in accordance with its terms, except that
enforcement thereof may be subject to (A) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally and (B) general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and the
exercise of discretionary authority of any court before which
a proceeding may be brought.
(vi) The execution and delivery of the Securities
have been duly authorized by all requisite corporate action
of the Company and each of the Guarantors; the Notes have
been duly executed and delivered by the Company and the
Guarantees have been duly executed and delivered by the
Guarantors and, assuming due authentication by the Trustee,
the Notes and the Guarantees are valid and binding
obligations of the Company and each of the Guarantors,
respectively, entitled to the benefits of the Indenture,
enforceable against the Company and each of the Guarantors in
accordance with their terms, except that enforcement thereof
may be subject to (A) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
now or hereafter in effect relating to or affecting
creditors' rights generally and (B)
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general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at
law) and the exercise of discretionary authority of any court
before which a proceeding may be brought.
(vii) The execution and delivery of the Exchange
Securities have been duly authorized by all requisite
corporate action of the Company and each of the Guarantors;
and, when duly executed and delivered by the Company and each
of the Guarantors and duly authenticated by the Trustee, will
be valid and binding obligations of the Company and each of
the Guarantors, entitled to the benefits of the Indenture,
enforceable against the Company and each of the Guarantors in
accordance with their terms, except that enforcement thereof
may be subject to (A) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
now or hereafter in effect relating to or affecting
creditors' rights generally and (B) general principles of
equity (regardless of whether enforceability is considered in
a proceeding in equity or at law) and the exercise of
discretionary authority of any court before which a
proceeding may be brought.
(viii) The execution and delivery of the
Registration Rights Agreement have been duly authorized by
all requisite corporate action of the Company and each of the
Guarantors; the Registration Rights Agreement has been duly
executed and delivered by the Company and each of the
Guarantors and, assuming due authorization, execution and
delivery by the Initial Purchaser, the Registration Rights
Agreement is a valid and binding agreement of the Company and
each of the Guarantors, enforceable against the Company and
each of the Guarantors in accordance with its terms, except
that (i) enforcement thereof may be subject to (A)
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors'
rights generally and (B) general principles of equity
(regardless of whether enforceability is considered in a
proceeding in equity or at law) and the exercise of
discretionary authority of any court before which a
proceeding may be brought and (ii) the validity and
enforceability of any indemnification or contribution
provisions thereof may be limited under applicable securities
laws or public policies.
(ix) The execution and delivery of the New Credit
Agreement have been duly authorized by all requisite
corporate action of the Company and each of the Guarantors
(to the extent each is a party thereto); and the New Credit
Agreement has been duly executed and delivered by the Company
and each of the Guarantors (to the extent each is a party
thereto) and, assuming the due authorization, execution and
delivery by the other parties thereto, is a valid and binding
agreement of the Company and each of the Guarantors (to the
extent each is a party thereto), enforceable against each of
the Company and the Guarantors (to the extent each is a party
thereto) in accordance with its terms, except that
enforcement thereof may be subject to (A) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally and (B) general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and the
exercise of discretionary authority of any court before which
a proceeding may be brought.
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(x) The execution and delivery of the Subsidiary
Intercompany Note have been duly authorized by all requisite
corporate action of the Company and Bowie; and the Subsidiary
Intercompany Note has been duly executed and delivered by the
Company and Bowie and is a valid and binding agreement of the
Company and Bowie, enforceable against each of the Company
and Bowie in accordance with its terms, except that
enforcement thereof may be subject to (A) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally and (B) general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and the
exercise of discretionary authority of any court before which
a proceeding may be brought.
(xi) Except as disclosed in the Final Memorandum,
all of the capital stock of the Company's subsidiaries is
owned of record by the Company. All shares of capital stock
of the Company's subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and except
as disclosed in the Final Memorandum, to the knowledge of
such counsel, all such shares are owned by the Company free
and clear of any security interests, liens, pledges or
encumbrances.
(xii) To the knowledge of such counsel, neither the
Company nor any of its subsidiaries is in violation of its
corporate charter or by-laws, or in default under any
material agreement (including loan and credit agreements),
indenture or instrument known to such counsel, which default
could, singly or in the aggregate, reasonably be expected to
have a Material Adverse Effect; to the best knowledge of such
counsel, the Company and each of its subsidiaries is not in
violation of any material law, ordinance, governmental rule
or regulation or court decree to which it may be subject
which violation, singly or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect and
has obtained each material license, permit, patent,
certificate, franchise or other governmental authorization or
permit (collectively, "Permits") necessary to ownership of
its properties or to the conduct of its business as described
in the Final Memorandum, other than Permits being applied for
in the ordinary course of business of the subsidiaries and
other than Permits the violation of or failure to obtain
which would singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(xiii) The execution and delivery by the Company and
each of the Guarantors of this Agreement, the Purchase
Agreement, the Indenture, the Registration Rights Agreement,
the New Credit Agreement (or, in the case of the Guarantors,
the guarantees related thereto) and the Subsidiary
Intercompany Note, the consummation by the Company and the
Guarantors of the transactions contemplated hereby and
thereby and by the Final Memorandum will not (A) to the
knowledge of such counsel, result in a breach or violation of
any of the terms or provisions of, or constitute a default
under, any material agreement or instrument of the Company or
any of its subsidiaries or (B) result in any violation of the
provisions of the charter or bylaws of the Company or any of
its subsidiaries, or, to the knowledge of such counsel, any
applicable law, rule or regulation (other than Securities
Laws as to which an opinion is given in paragraph (ii) above)
with respect to the Company or any of its subsidiaries or, to
the knowledge of such counsel, any rule or regulation (other
than Securities Laws (as defined below) as to which an
opinion is given in paragraph (ii) above) or order of any
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court or governmental agency having jurisdiction over the
Company or any of its subsidiaries, except for such
violations that would not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
and, to the knowledge of such counsel, except for such
consents, approvals or authorizations of, or filings,
registrations or qualifications with, governmental
authorities as may be required under the Securities Act and
the rules and regulations thereunder, the Trust Indenture Act
and the rules and regulations thereunder or applicable states
securities or Blue Sky laws, rules or regulations (all of
such laws, rules and regulations are collectively referred to
herein as "Securities Laws") in connection with the purchase
and distribution of the Securities by the Initial Purchaser
and as set forth in, and in order to consummate the
transactions contemplated by, the Registration Rights
Agreement, no consent, approval, authorization or order of,
or filing or registration with, any such court or
governmental agency or body is required in connection with
the execution and delivery by the Company and the Guarantors
of this Agreement, the Purchase Agreement Supplement, the
Indenture, the Registration Rights Agreement, the New Credit
Agreement, or the Subsidiary Intercompany Note, the
consummation by the Company and the Guarantors of the
transactions contemplated hereby and thereby and the issuance
and sale of the Securities and Exchange Securities by the
Company and the Guarantors.
(xiv) The descriptions in the Final Memorandum of
the Indenture, the Securities, the Registration Rights
Agreement, the New Credit Agreement and the Subsidiary
Intercompany Note are accurate summaries of such documents in
all material respects.
(xv) To the knowledge of such counsel, the Company
and its subsidiaries own or otherwise possess the right to
use all patents, trademarks, service marks, trade names and
copyrights, all applications and registrations for each of
the foregoing, used in the conduct of their respective
businesses as currently conducted; and, to the knowledge of
such counsel neither the Company nor any of its subsidiaries
has received any notice, of any infringement of or conflict
with the rights of any third party with respect to any of the
foregoing which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result
in a Material Adverse Effect on the Company.
(xvi) To the knowledge of such counsel, the
statements made in the Final Memorandum under the heading
"Business -- Legal Proceedings" to the extent they constitute
matters of law or legal conclusions, have been reviewed by
such counsel and fairly present in all material respects the
information disclosed therein.
(xvii) To such counsel's knowledge, no legal or
governmental proceedings are pending to which the Company or
any of its subsidiaries is a party that would be required
under the Securities Act to be described in a registration
statement on Form S-1 or a prospectus contained therein
delivered at the time of the confirmation of the sale of an
offering of securities registered under the Securities Act
that are not described in the Final Memorandum, or, to such
counsel's knowledge, that seek to restrain, enjoin, prevent
the consummation of or otherwise challenge the issuance or
sale of the Securities to the Initial Purchaser or the
consummation of the transactions described in the Final
Memorandum under the caption "Use of Proceeds."
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(xviii) Neither the Company nor any of its
subsidiaries is (i) subject to registration and regulation as
an "investment company" within the meaning of the Investment
Company Act, or (ii) a "holding company" or a "subsidiary
company" or an "affiliate" of a holding company within the
meaning of the Public Utility Holding Company Act of 1935, as
amended.
(xix) When the Securities are issued and delivered
pursuant to this Agreement, such Securities will not be of
the same class (within the meaning of Rule 144A(d)(3) under
the Securities Act) as securities of the Company or any of
its subsidiaries that are listed on a national securities
exchange registered under Section 6 of the Exchange Act or
quoted on an automated inter-dealer quotation system.
(xx) Assuming the Initial Purchaser purchases the
Securities in accordance with Rule 144A under the Securities
Act, neither the issuance or sale of the Securities nor the
application by the Company of the net proceeds thereof as set
forth in the Final Memorandum will violate Regulation G, T, U
or X of the Board of Governors of the Federal Reserve System.
In addition, such counsel shall also state that such counsel
has participated in conferences with officers and representatives of
the Issuers, representatives of the independent public accountants for
the Issuers and representatives of the Initial Purchaser and its
counsel at which the contents of the Final Memorandum and related
matters were discussed and, although such counsel is not passing upon
and does not assume any responsibility for and has not verified the
accuracy, completeness or fairness of the statements contained in the
Final Memorandum, and has not made any independent check or
verification thereof, on the basis of the foregoing (relying as to
materiality to the extent they deemed appropriate upon facts provided
by officers and other representatives of the Issuers), no facts have
come to the attention of such counsel that lead such counsel to
believe that the Final Memorandum, as of its date or the Closing Date,
contained an untrue statement of a material fact or omitted to state
any material fact necessary to make the statements therein, in light
of the circumstances under which there were made, not misleading (it
being understood that such counsel need express no belief or opinion
with respect to the financial statements and notes thereto and other
financial and statistical data included therein).
(k) You shall have received on the Closing Date an opinion of
Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser, dated the Closing
Date and addressed to you, in form and substance reasonably
satisfactory to you.
(l) The Issuers and the Trustee shall have entered into the
Indenture and the Initial Purchaser shall have received counterparts,
conformed as executed, thereof.
(m) The Issuers and the Initial Purchaser shall have entered
into the Registration Rights Agreement and the Initial Purchaser shall
have received counterparts, conformed as executed, thereof.
(n) The Issuers shall have entered into the New Credit
Agreement (the form and substance of which shall be reasonably
acceptable to the Initial Purchaser) and the Initial Purchaser shall
have received counterparts, conformed as executed, thereof and of all
other documents and agreements entered into in connection therewith.
There shall exist at and as of
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the Closing Date no conditions that would constitute a
default (or an event that with notice or the lapse of time, or both,
would constitute a default) under the New Credit Agreement. On the
Closing Date, the New Credit Agreement shall be in full force and
effect and shall not have been modified.
(o) The Company shall have been assigned those certain
promissory notes comprising of (I) a term loan promissory note in an
original principal amount of $12,000,000, (ii) a revolving loan
promissory note in an original principal amount of $3,000,000 and
(iii) a letter of credit promissory note in an original principal
amount of $500,000 (collectively, the "Assigned Notes"), in each case
made by Bowie and dated as of June 17, 1997 and payable to The
Provident Bank, and Ohio banking corporation; and the Initial
Purchaser shall have received counterparts, conformed as executed,
thereof and of all other documents and agreements entered into in
connection therewith. There shall exist at and as of the Closing Date
no conditions that would constitute a default (or an event that with
notice or the lapse of time, or both, would constitute a default)
under the Assigned Notes. On the Closing Date, the Assigned Notes
shall be in full force and effect and shall not have been modified
other than such modifications as are reasonably acceptable to the
Initial Purchaser.
(p) The Company and Bowie shall have entered into the
Subsidiary Intercompany Note (the form and substance of which is set
forth in the Indenture) and the Initial Purchaser shall have received
counterparts, conformed as executed, thereof and of all other
documents and agreements entered into in connection therewith. There
shall exist at and as of the Closing Date no conditions that would
constitute a default (or an event that with notice or the lapse of
time, or both, would constitute a default) under the Subsidiary
Intercompany Note. On the Closing Date, the Subsidiary Intercompany
Note shall be in full force and effect and shall not have been
modified.
(q) At the Execution Time and at the Closing Date, Xxxxxx
Xxxxxxxx LLP and Ernst & Young LLP shall have furnished to the Initial
Purchaser a letter or letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchaser, confirming that they are
independent accountants within the meaning of Rule 101 of the Code of
Professional Conduct of the AICPA and otherwise reasonably
satisfactory in form and substance to the Initial Purchaser and its
counsel.
(r) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest financial statements
included in the Final Memorandum losses or interferences with their
businesses, taken as a whole, 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 Final Memorandum and (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,
stockholders' equity or results of operations of the Company or its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Final Memorandum, the effect of which, in any such
case described in clause (i) or (ii), is, in the reasonable judgment
of the Initial Purchaser, 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 the Closing Date on the
terms and in the manner contemplated herein and in the Final
Memorandum.
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(s) 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
NASDAQ Stock Market's National Market or in the over-the-counter
market shall have been suspended or materially limited, or minimum
prices shall have been established on such exchange by the SEC, or 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) as to make it, in the reasonable judgment
of the Initial Purchaser, impracticable or inadvisable to proceed with
the offering or delivery of the Securities being delivered on the
Closing Date on the terms and in the manner contemplated herein and in
the Final Memorandum.
(t) As of the Closing Date, no "nationally recognized
statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act (i) will have imposed (or
will have informed the Company or any Guarantor that it is considering
imposing) any condition (financial or otherwise) on the Company's or
any Guarantor's retaining any rating assigned to the Company or any
Guarantor, any securities of the Company or any Guarantor or (ii) will
have indicated to the Company or any Guarantor 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 change in the outlook for
any rating of the Company, any Guarantor or any securities of the
Company or any Guarantor.
(u) The Company shall have entered into (i) a Manufacture,
Service, Use and License Agreement with Xxxxxxxxx Enterprises relating
to the purchase, maintenance and use of Addcar(TM) highwall mining
systems and equipment, (ii) a Haulage and Delivery Agreement with TASK
Trucking Company relating to certain trucking brokerage services,
(iii) a service agreement with Mining Machinery, Inc. relating to
maintenance and repair of equipment, (iv) certain leases with Mining
Machinery, Inc. relating to properties leased by the Company and its
subsidiaries and (v) a Sales Agency Agreement with Bowie Sales LLC
relating to certain coal contracts, in each case on terms reasonably
acceptable to the Initial Purchaser, and the Company shall have
delivered an executed copy of each such agreement to the Initial
Purchaser.
(v) Bowie shall have entered into a Marketing Agreement with
Mitsui Matsushima Co., Ltd., relating to marketing of 22.5% of the
coal produced by Bowie and payment of a 3.0% commission in connection
therewith on terms reasonably acceptable to the Initial Purchaser, and
the Company shall have caused Bowie to deliver an executed copy of
such agreement to the Initial Purchaser.
(w) Xxxxxx & Xxxxxxx shall have been furnished with such
documents, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass
upon the matters referred to in this Section 7 and in order to
evidence the accuracy, completeness or satisfaction in all material
respects of any of the representations, warranties or conditions
herein contained.
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(x) Prior to the Closing Date, the Issuers shall have
furnished to the Initial Purchaser such further information,
certificates and documents as the Initial Purchaser may reasonably
request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchaser.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Issuers jointly and severally agree to indemnify and
hold harmless the Initial Purchaser, the directors, officers,
employees and agents (including, without limitation, attorneys) of the
Initial Purchaser and each person who controls the Initial Purchaser
within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Memorandum,
the Final Memorandum or any information provided by the Issuers to any
holder or prospective purchaser of Securities pursuant to Section
5(e), or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and agree to reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Issuers will not be liable in any such case to the
Initial Purchaser to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission
relating to the Initial Purchaser made in the Preliminary Memorandum
or the Final Memorandum, or in any amendment thereof or supplement
thereto, in reliance upon and in conformity with written information
furnished to the Issuers by or on behalf of the Initial Purchaser
specifically for inclusion therein.
(b) The Initial Purchaser agrees to indemnify and hold
harmless the Issuers, their directors, officers, employees and agents
(including, without limitation, attorneys), and each person who
controls the Issuers within the meaning of either the Securities Act
or the Exchange Act, to the same extent as the foregoing indemnity
from the Issuers to the Initial Purchaser, but only with reference to
written information relating to the Initial Purchaser furnished to the
Issuers by or on behalf of the Initial Purchaser specifically for
inclusion in the Preliminary Memorandum or the Final Memorandum (or in
any amendment or supplement thereto). This indemnity agreement will be
in addition to any liability which the Initial Purchaser may otherwise
have. The Issuers and the Initial Purchaser acknowledge that the
statements set forth in the last paragraph of the cover page and under
the heading "Plan of Distribution" in the Preliminary Memorandum and
the Final Memorandum constitute the only information furnished in
writing by or on behalf of the Initial Purchaser for inclusion in the
Preliminary Memorandum or the Final Memorandum (or any amendment or
supplement thereto).
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(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof, but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except
as set forth below); provided, however that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would, in the
opinion of legal counsel to the indemnified party, present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have been informed in writing by legal counsel that there may be
legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice
of the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party
from all liability arising out of such claim, action, suit or
proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Issuers and the
Initial Purchaser agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Issuers and the Initial Purchaser
may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Issuers and by the Initial Purchaser
from the offering of the Securities; provided, however, that in no
case shall the Initial Purchaser be responsible for any amount in
excess of the purchase discount or commission applicable to the
Securities purchased by the Initial Purchaser hereunder. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the Issuers and the Initial Purchaser
shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Issuers
and of the Initial Purchaser in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits
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received by the Issuers shall be deemed to be equal to the
total net proceeds from the offering (before deducting expenses), and
benefits received by the Initial Purchaser shall be deemed to be equal
to the total purchase discounts and commissions received by the
Initial Purchaser from the Issuers in connection with the purchase of
the Securities hereunder. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates
to information provided by the Issuers or the Initial Purchaser. The
Issuers and the Initial Purchaser agree that it would not be just and
equitable if contribution were determined by pro rata allocation or
any other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls the Initial Purchaser within
the meaning of either the Securities Act or the Exchange Act and each
director, officer, employee and agent of the Initial Purchaser shall
have the same rights to contribution as the Initial Purchaser, and
each person who controls the Issuers within the meaning of either the
Securities Act or the Exchange Act and each partner, officer,
director, employee and agent of the Issuers shall have the same rights
to contribution as the Issuers, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. TERMINATION. The obligations of the Initial Purchaser hereunder may
be terminated by the Initial Purchaser by notice given to and received by the
Company prior to delivery of and payment for the Securities if, prior to that
time, any of the events described in Sections 7(m) or 7(n) shall have occurred
or if the Initial Purchaser shall decline to purchase the Securities for any
reason permitted under this Agreement.
10. REIMBURSEMENT OF INITIAL PURCHASER'S EXPENSES. If (a) the Issuers
shall fail to tender the Securities for delivery to the Initial Purchaser
otherwise than for any reason permitted under this Agreement or (b) the Initial
Purchaser shall decline to purchase the Securities for any reason permitted
under this Agreement, the Issuers shall reimburse the Initial Purchaser for the
reasonable fees and expenses of their counsel and for such other reasonable
out-of-pocket expenses as shall have been incurred by them in connection with
this Agreement and the proposed purchase of the Securities, and upon demand the
Issuers shall pay the full amount thereof to the Initial Purchaser.
11. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) If to the Initial Purchaser, shall be delivered or sent
by mail, telex or facsimile transmission to NationsBanc Xxxxxxxxxx
Securities, Inc., 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxx Xxxxxx, with a copy to Xxxxxx &
Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
X. Xxxxxxxxx.
(b) If to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set
forth in the Final Memorandum, Attention: Xxx Xxxxx, with a copy to
Xxxxx, Xxxx & Heyburn, 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, Attention: Xxxx Xxxxxxxx.
Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof. The Issuers shall be entitled to
act and rely upon any request, consent, notice or agreement given or made on
behalf of the Initial Purchaser.
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12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchaser, the Issuers
and their respective 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 Issuers
contained in this Agreement shall also be deemed to be for the benefit of
directors, officers, employees and agents (including, without limitation,
attorneys) of the Initial Purchaser and the person or persons, if any, who
control the Initial Purchaser within the meaning of Section 15 of the
Securities Act and (B) the indemnity agreement of the Initial Purchaser
contained in Section 8(b) of this Agreement shall be deemed to be for the
benefit of directors of the Issuers, officers, employees and agents (including,
without limitation, attorneys) of the Issuers and any person controlling any of
the Issuers 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 12, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.
13. SURVIVAL. The respective indemnities, representations, warranties
and agreements of the Issuers and the Initial Purchaser 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.
14. DEFINITION OF "BUSINESS DAY." For purposes of this Agreement,
"business day" means each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in The City of New York, New York
are authorized or obligated by law, executive order or regulation to close.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[Signature page follows]
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If the foregoing correctly sets forth the agreement between
the Issuers and the Initial Purchaser, please indicate your acceptance in the
space provided for that purpose below.
Very truly yours,
AEI HOLDING COMPANY, INC.
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Secretary
XXXXXXXXX MINING, INC.
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Secretary
TENNESSEE MINING, INC.
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Secretary
XXXXX-XXXXX CO., INC.
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Secretary
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The foregoing Agreement is hereby confirmed, accepted and agreed as of the date
first above written.
NATIONSBANC XXXXXXXXXX SECURITIES, INC.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Director
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EXHIBIT A
Registration Rights Agreement
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SCHEDULE A
Subsidiaries
Name Jurisdiction of Incorporation
---- -----------------------------
1. Xxxxxxxxx Mining, Inc. Kentucky
2. Tennessee Mining, Inc. Kentucky
3. Xxxxx-Xxxxx Co., Inc. Kentucky
4. Bowie Resources, Limited Colorado
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SCHEDULE B
MATERIAL CONTRACTS
X. Xxxxxxxxx Mining, Inc.
1. Leases SA-098-274 and SA-098-358 with Lauren Land Company, a Kentucky
corporation.
2. Lease SA-013-001 with Consol of Kentucky, Inc., a Delaware corporation.
3. Lease LA-098-370 with KYBC Land Corporation, a Kentucky corporation.
4. Leases LA-098-099 and LA-098-390 with ANR Coal Company, LLC, a
Delaware limited liability company.
5. Lease LA-098-245 with The Elk Horn Coal Corporation, a West Virginia
corporation.
6. Lease LA-013-003 with Ark Land Company, a Delaware corporation.
7. Leases LA-098-165 and LA-098-335 with Big Sandy, L.P., a ________
limited partnership.
8. Leases SA-098-175 and SA-098-170 with Unit Coal Corporation, a
_________ corporation.
9. Lease LA-098-368 with Xxxx/Xxxxxx heirs.
10. Lease LA-098-367 with Xxxxx Xxxxxx.
II. Tennessee Mining, Inc.
1. Lease _______ with Brimstone Company, a __________ corporation.
2. Lease LA-010-001 with Coal Creek Manufacturing Company, a _________
corporation.
3. Lease _______ with the Bruno Grent estate.
III. Xxxxx-Xxxxx Co., Inc.
1. Lease _______ with the South Mississippi Electric Power Association, a
__________.
2. Lease _______ with Kentucky River Coal Corporation, a _________
corporation.
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SCHEDULE C
Initial Purchaser Amount
----------------- ------
NationsBanc Xxxxxxxxxx Securities, Inc......................... $200,000,000.00
$200,000,000.00
===============
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