Exhibit 1.1
EXECUTION COPY
PEABODY ENERGY
CORPORATION
$650,000,000 7.375% Senior Notes
due 2016
$250,000,000 7.875% Senior Notes due 2026
Morgan Stanley
& Co. Incorporated
Lehman Brothers Inc.
As representatives of the underwriters named in Schedule II
(the “ Representatives ”)
c/o Morgan
Stanley & Co. Incorporated
1585 Broadway
New York, New York, 10036
Lehman Brothers
Inc.
745 Seventh Avenue
New York, NY 10019
Peabody Energy
Corporation, a Delaware corporation (the “ Company
”) , proposes to issue and sell to the
underwriters named in Schedule II hereto (the “
Underwriters ”) $650,000,000 aggregate principal
amount of its 7.375% Senior Notes due 2016 (the “ 2016
Notes ”) and $250,000,000 aggregate principal amount of
its 7.875% Senior Notes due 2026 (the “ 2026 Notes
”) (collectively, the “ Notes ”)
guaranteed by guarantees (the “ Guarantees ”
and, together with the Notes, the “ Securities
”) of the Company’s domestic subsidiaries signatory
hereto (collectively, the “ Subsidiary Guarantors
”) pursuant to the terms of an indenture (the “ Base
Indenture ”), dated as of March 19, 2004
, among the Company, the Subsidiary Guarantors and
U.S. Bank National Association, as Trustee, as supplemented by a
supplemental indenture (the “ 2016 Supplemental
Indenture ”), to be dated on or about October 12, 2006,
among the Company, the Trustee and the Subsidiary Guarantors
relating to the 2016 Notes and by a supplemental indenture (the
“ 2026 Supplemental Indenture ”, and together
with the 2016 Supplemental Indenture and the Base Indenture, the
“ Indenture ”), to be dated on or about October
12, 2006, among the Company, the Trustee and the Subsidiary
Guarantors relating to the 2026 Notes. This Agreement, the Notes,
the Guarantees, the Indenture and (if executed) the Escrow
Agreement (as defined herein) are hereinafter referred to
collectively as the “ Operative Documents. ” The
Company is issuing the Securities in connection with its
acquisition (the “ Acquisition ”) of Excel Coal
Limited (“ Excel ”) by a wholly-owned subsidiary
of the Company.
The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) a registration statement, including a
prospectus, (File No. 333-136108) on Form S-3, relating to
securities (the “ Shelf Securities ”), including
the Securities, to be issued
from time to
time by the Company. The registration statement as amended to the
date of this Agreement, including the information (if any) deemed
to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A or Rule 430B under
the Securities Act of 1933, as amended (the “ Securities
Act ”), is hereinafter referred to as the “
Registration Statement, ” and the related prospectus
covering the Shelf Securities dated July 28, 2006 in the form
first used to confirm sales of the Securities (or in the form first
made available to the Underwriters by the Company to meet requests
of purchasers pursuant to Rule 173 under the Securities Act)
is hereinafter referred to as the “ Basic Prospectus
.” The Basic Prospectus, as supplemented by the prospectus
supplement specifically relating to the Securities in the form
first used to confirm sales of the Securities (or in the form first
made available to the Underwriters by the Company to meet requests
of purchasers pursuant to Rule 173 under the Securities Act)
is hereinafter referred to as the “ Prospectus
,” and the term “ Preliminary Prospectus ”
means any preliminary form of the Prospectus. For purposes of this
Agreement, “ free writing prospectus ” has the
meaning set forth in Rule 405 under the Securities Act,
“ Time of Sale Prospectus ” means the
Preliminary Prospectus together with the free writing prospectuses,
if any, each identified in Schedule I hereto, and “
broadly available road show ” means a “bona fide
electronic road show” as defined in Rule 433(h)(5) under
the Securities Act that has been made available without restriction
to any person. As used herein, the terms “Registration
Statement,” “Basic Prospectus,”
“Preliminary Prospectus,” “Time of Sale
Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein. The terms
“ supplement ,” “ amendment
,” and “ amend ” as used herein with
respect to the Registration Statement, the Basic Prospectus, the
Time of Sale Prospectus, any Preliminary Prospectus, the Prospectus
or any free writing prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), that are deemed to be incorporated by
reference therein.
The Company and
the Subsidiary Guarantors hereby agree with the Underwriters as
follows:
SECTION 1.
Representations, Warranties and Agreements of the Company and
the Subsidiary Guarantors. The Company and the Subsidiary
Guarantors, jointly and severally, represent, warrant and agree
that:
(a) A
registration statement on Form S-3 (File No. 333-136108) with
respect to, among other things, the Securities has (i) been
prepared by the Company and the Subsidiary Guarantors in conformity
with the requirements of the Securities Act, and the rules and
regulations (the “ Rules and Regulations ”) of
the Commission thereunder, (ii) been filed with the Commission
under the Securities Act, and (iii) become effective under the
Securities Act. Copies of such registration statement and each of
the amendments thereto have been delivered by the Company to you.
No stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are
pending before or, to the knowledge of the Company, threatened by
the Commission. If the Registration Statement is an automatic shelf
registration statement as defined in Rule 405 under the
Securities Act, the Company is a well-known seasoned issuer (as
defined in Rule 405 under the Securities Act) eligible to use
the Registration Statement as an automatic shelf registration
statement and the Company has not received notice that the
Commission objects to the use of the Registration Statement as an
automatic shelf registration statement.
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(b) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act
and incorporated by reference in the Time of Sale Prospectus or the
Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did
not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
(iii) the Registration Statement as of the date hereof does
not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iv) the
Registration Statement and the Prospectus comply, and as amended or
supplemented, if applicable, will comply in all material respects
with the Securities Act and the Rules and Regulations, (v) the
Time of Sale Prospectus does not, and at the time of each sale of
the Securities in connection with the offering when the Prospectus
is not yet available to prospective purchasers, the Time of Sale
Prospectus, as then amended or supplemented by the Company, if
applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, (vi) each broadly available
road show, if any, when considered together with the Time of Sale
Prospectus, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading and (vii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this paragraph do not apply to (A) statements or
omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by any Underwriter
expressly for use therein or (B) that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the “
Trust Indenture Act ”), of the Trustee.
(c) The
Company is not an “ineligible issuer” in connection
with the offering of the Securities pursuant to Rules 164, 405
and 433 under the Securities Act. Any free writing prospectus that
the Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act and the
Rules and Regulations. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or on behalf of or
used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and
the Rules and Regulations. Except for the free writing
prospectuses, if any, identified in Schedule I hereto, and
electronic road shows, if any, furnished to you before first use,
the Company has not prepared, used or referred to, and will not,
without your prior consent, prepare, use or refer to, any free
writing prospectus.
(d) The
Company and each of its subsidiaries (as defined in
Section 15) have been duly incorporated or organized, as the
case may be, and are validly existing as their respective business
entities and in good standing under the laws of their respective
jurisdictions of incorporation or organization, as the case may be,
are duly qualified to do business and are in
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good standing
as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all
power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged,
except where the failure to so qualify or to be in good standing
would not reasonably be expected to have a material adverse effect
on the financial condition, business, properties or results of
operations of the Company and its subsidiaries taken as a whole (a
“ Material Adverse Effect ”).
(e) The
Company has an authorized capitalization as set forth in each of
the Time of Sale Prospectus and the Prospectus, and all of the
issued and outstanding shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the
description thereof contained in each of the Time of Sale
Prospectus and the Prospectus; and all of the issued and
outstanding shares of capital stock or membership interests, as the
case may be, of each wholly-owned subsidiary of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable and (except for directors’ qualifying shares)
are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims, other than liens,
encumbrances, equities or claims described in each of the Time of
Sale Prospectus and the Prospectus, and none of such shares of
capital stock or membership interests, as the case may be, were
issued in violation of preemptive or other similar rights arising
by operation of law, under the charter and by-laws of the Company
or under any agreement to which the Company or any Subsidiary
Guarantor is a party or otherwise.
(f) Each of
the Company and the Subsidiary Guarantors has all requisite power
and authority to execute, deliver and perform its respective
obligations under this Agreement and each of the other Operative
Documents to which it is a party.
(g) This
Agreement has been duly authorized, executed and delivered by the
Company and the Subsidiary Guarantors.
(h) The
Indenture has been duly authorized by the Company and each of the
Subsidiary Guarantors, and when duly executed by the proper
officers of the Company and each of the Subsidiary Guarantors
(assuming due execution and delivery by the Trustee) and delivered
by the Company and each of the Subsidiary Guarantors, will
constitute a legal, valid and binding agreement of the Company and
each of the Subsidiary Guarantors enforceable against the Company
and each of the Subsidiary Guarantors in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights and remedies
generally, and subject, as to enforceability, to general principles
of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought
in a proceeding at law or in equity). The Indenture has been duly
qualified under the Trust Indenture Act.
(i) An escrow
agreement substantially in the form attached hereto as
Exhibit C (the “Escrow Agreement”) has been duly
authorized by the Company, and when duly executed by the proper
officers of the Company (assuming due execution and delivery by the
escrow agent thereunder) and delivered by the Company, will
constitute a legal, valid and binding agreement
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of the Company
enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights and remedies
generally, and subject, as to enforceability, to general principles
of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought
in a proceeding at law or in equity).
(j) The Notes
have been duly authorized by the Company and when duly issued by
the Company in accordance with the terms of the Indenture and,
assuming due authentication of the Notes by the Trustee, when
delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will have been validly issued and
delivered, and will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights and remedies
generally, and subject, as to enforceability, to general principles
of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought
in a proceeding at law or in equity).
(k) The
Guarantees have been duly authorized by each of the Subsidiary
Guarantors and when duly endorsed on the Notes in accordance with
the terms of the Indenture and, assuming due authentication of the
Notes by the Trustee, upon delivery to the Underwriters against
payment therefor in accordance with the terms hereof will
constitute legal, valid and binding obligations of each of the
Subsidiary Guarantors entitled to the benefits of the Indenture and
enforceable against each of the Subsidiary Guarantors in accordance
with their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights and remedies
generally, and subject, as to enforceability, to general principles
of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought
in a proceeding at law or in equity).
(l) The
execution, delivery and performance of this Agreement and the other
Operative Documents by the Company and the Subsidiary Guarantors
will not (i) 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 agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (ii) result
in any violation of the provisions of the Certificate of
Incorporation or by-laws of the Company or any of its subsidiaries
or (iii) result in the violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets, except in the case of clauses
(i) and (iii), such conflicts, breaches or violations that in
the aggregate would not reasonably be expected to have a Material
Adverse Effect. Except as may be required in connection with
compliance with the securities or Blue Sky laws of various
jurisdictions, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and
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performance of
this Agreement or any of the other Operative Documents by the
Company and the Subsidiary Guarantors.
(m) The
financial statements (including the related notes and supporting
schedules) included or incorporated by reference in the Time of
Sale Prospectus and the Prospectus comply as to form in all
material respects with the requirements of Regulation S-X
under the Securities Act and present fairly in all material
respects the financial condition and results of operations and cash
flows of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles (“ GAAP
”) applied on a consistent basis throughout the periods
involved. The other financial data, selected pro forma ratios and
operating data included in the Time of Sale Prospectus and the
Prospectus is presented fairly, in all material respects, and has
been prepared on a basis consistent with such financial statements
and the books and records of the Company.
(n) There are
no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject
(i) other than proceedings accurately described in all
material respects in the Time of Sale Prospectus and the Prospectus
and proceedings that would not have a Material Adverse Effect, or
would not materially and adversely affect the power or ability of
the Company to perform its obligations under this Agreement or to
consummate the transactions contemplated by the Time of Sale
Prospectus and the Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are
not so described; and to the Company’s knowledge, no such
proceedings are threatened by governmental authorities or
threatened by others.
(o) Neither
the Company nor any of its subsidiaries has sustained, since the
date of the latest audited financial statements included in each of
the Time of Sale Prospectus and the Prospectus, any material loss
or interference with its business that has had a Material Adverse
Effect, whether from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in each of the Time of Sale Prospectus
and the Prospectus; and, since such date, there has not been any
material change in the capital stock or material increase in the
long-term debt of the Company or any of its subsidiaries or any
change, in or affecting the general affairs, management,
consolidated financial position, stockholders’ equity,
results of operations, business or prospects of the Company and its
subsidiaries that has had or could reasonably be expected to have a
Material Adverse Effect, other than as set forth or contemplated in
each of the Time of Sale Prospectus and the Prospectus.
(p) The
Company is subject to and in full compliance with the reporting
requirements of Section 13 or 15(d) of the Exchange
Act.
(q) The
Company and each Subsidiary Guarantor (i) makes and keeps
accurate books and records and (ii) maintains a system of
internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance
with management’s authorization, (B) transactions are
recorded as necessary to permit preparation of its financial
statements in conformity with GAAP and to maintain accountability
for its assets, (C) access to its assets is permitted only in
accordance with management’s authorization and (D) the
recorded
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accountability
for its assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(r) Ernst
& Young LLP, who have certified certain financial statements of
the Company, whose report appears in the Time of Sale Prospectus
and the Prospectus and who have delivered the initial letter
referred to in Section 7(h) hereof, are and have been, independent
public accountants as required by the Securities Act and the Rules
and Regulations during the periods covered by the financial
statements on which they reported.
(s) KPMG, who
have certified certain financial statements of Excel, whose report
appears in the Time of Sale Prospects and the Prospectus and who
have delivered the initial letter referred to in Section 7(j)
hereof, are and have been independent chartered accountants with
respect to Excel under the Institute of Chartered Accountants in
Australia’s Code of Professional
Conduct—Section F1 “Professional
Independence” during the periods covered by the financial
statements on which they reported.
(t) The
market-related and industry data included in the Time of Sale
Prospectus and the Prospectus are based upon estimates by the
Company on or derived from sources that the Company and the
subsidiaries believe to be reliable and accurate in all material
respects.
(u) The
Company has such permits, licenses, franchises, certificates,
consents, orders and other approvals or authorizations of any
governmental or regulatory authority (“ Permits
”), including, without limitation, any permits or approvals
required by the United States Environmental Protection Agency, the
United States Office of Surface Mining Reclamation and Enforcement
and corresponding state agencies, as are necessary under applicable
law to own its properties and to conduct its businesses in the
manner described in the Time of Sale Prospectus and the Prospectus,
except to the extent that the failure to have such Permits would
not reasonably be expected to have a Material Adverse Effect. The
Company has fulfilled and performed in all material respects, all
its material obligations with respect to the Permits, and, to the
best knowledge of the Company, no event has occurred that allows,
or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of
the rights of the holder of any such Permit, subject in each case
to such qualification as may be set forth in the Time of Sale
Prospectus and the Prospectus and except to the extent that any
such revocation or termination would not reasonably be expected to
have a Material Adverse Effect.
(v) To the
knowledge of the Company, the Company and each of its subsidiaries
carry, or are covered by, insurance in such amounts and covering
such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as is
customary for companies engaged in similar businesses in similar
industries.
(w) No labor
disturbance by the employees of the Company exists or, to the
knowledge of the Company, is imminent, which would reasonably be
expected to have a Material Adverse Effect, except as disclosed in
the Time of Sale Prospectus and the Prospectus.
(x) Except as
would not reasonably be expected to have a Material Adverse Effect,
the Company is in compliance in all material respects with all
presently applicable provisions of
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the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder (“
ERISA ”); no “reportable event” (as
defined in ERISA) has occurred with respect to any “pension
plan” (as defined in ERISA) for which the Company would have
any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “pension plan”
or (ii) Sections 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published
interpretations thereunder (the “ Code ”); and
each “pension plan” for which the Company would have
any liability that is intended to be qualified under Section 401(a)
of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would
cause the loss of such qualification, except as would not
reasonably be expected to have a Material Adverse
Effect.
(y) Each of
the Company and the Subsidiary Guarantors has filed (or obtained
extensions in filing) all federal, state and local income and
franchise tax returns required to be filed through the date hereof
(other than those the nonfiling of which would not be reasonably
likely to have a Material Adverse Effect) and has paid all taxes
due thereon, other than those being contested in good faith and for
which reserves have been provided in accordance with GAAP, those
currently payable without penalty or interest or the nonpayment of
which would not be reasonably likely to have a Material Adverse
Effect. No tax deficiency has been determined adversely to the
Company and the Subsidiary Guarantors that has had (nor does the
Company have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of its subsidiaries,
would reasonably be expected to have) a Material Adverse
Effect.
(z) Neither
the Company nor any of the Subsidiary Guarantors (i) is in
violation of its organizational documents, (ii) is in default,
and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it
is bound or to which any of its properties or assets is subject, or
(iii) is in violation of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or
assets may be subject, except, in the cases of clauses
(ii) and (iii), such defaults, events, violations or failures
that in the aggregate would not reasonably be expected to have a
Material Adverse Effect.
(aa) Except
as set forth in the Time of Sale Prospectus and the Prospectus,
there has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes,
medical wastes, hazardous wastes or hazardous substances by the
Company or any of its subsidiaries (or, to the knowledge of the
Company, any of their predecessors in interest) at, upon or from
any of the property now or previously owned or leased by the
Company or its subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or
that would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit,
except for any violation or remedial action that would not have, or
would not be reasonably likely to have, singularly or in the
aggregate with all such violations and remedial actions, a Material
Adverse Effect; except as set forth in, or specifically
contemplated by, the Time of Sale Prospectus and the Prospectus;
there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any
toxic
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wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due
to or caused by the Company or any of its subsidiaries or with
respect to which the Company or any of its subsidiaries have
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release that would not have or would
not be reasonably likely to have, singularly or in the aggregate
with all such spills, discharges, leaks, emissions, injections,
escapes, dumpings and releases, a Material Adverse Effect; and the
terms “hazardous wastes,” “toxic wastes,”
“hazardous substances” and “medical wastes”
shall have the meanings specified in any applicable local, state,
federal and foreign laws or regulations with respect to
environmental protection.
(bb) The
Company and each of its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to
all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects, except such as are described
in the Time of Sale Prospectus and the Prospectus or that would not
reasonably be expected to have a Material Adverse Effect; and all
real property held under lease by the Company and its subsidiaries
that is material to the Company and its subsidiaries, taken as a
whole, is held by them under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such
property and buildings by the Company and its
subsidiaries.
(cc) Neither
the Company nor any subsidiary is, or, as of the Closing Date (as
defined below) after giving effect to the offer and sale of the
Securities pursuant to this Agreement and the application of the
proceeds as described in the Time of Sale Prospectus and the
Prospectus under the section entitled “Use of
Proceeds,” and neither the Company nor any subsidiary will
be, an “investment company” within the meaning of such
term under the Investment Company Act of 1940, as amended (the
“Investment Company Act”).
(dd) No
“nationally recognized statistical rating organization”
as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act (i) has imposed (or has informed the
Company that it is considering imposing) any condition (financial
or otherwise) on the Company’s retaining any rating assigned
as of the date hereof to the Company or its securities or
(ii) has indicated to the Company that it is considering
(A) the downgrading, suspension or withdrawal of, or any
review for a possible change that does not indicate the direction
of the possible change in, any rating so assigned or (B) any
negative change in the outlook for any rating of the
Company.
(ee) Each of
the Company and the Subsidiary Guarantors understands that the
Underwriters and, for purposes of the opinions to be delivered to
the Underwriters pursuant to Section 7 hereof, counsel to the
Company and counsel to the Underwriters will rely upon the accuracy
and truth of the foregoing representations and hereby consents to
such reliance.
(ff) The
conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied with respect to the
Registration Statement.
(gg) There
are no contracts or other documents that are required to be
described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the
Rules
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and Regulations
that have not been described in the Prospectus or filed as exhibits
to the Registration Statement.
(hh) Each
Preliminary Prospectus filed as part of the Registration Statement
as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when
so filed in all material respects with the Securities Act and the
Rules and Regulations.
SECTION 2.
[Intentionally Omitted]
SECTION 3.
Purchase, Sale and Delivery of the Securities . On the basis
of the representations and warranties contained in, and subject to
the terms and conditions of, this Agreement, the Company agrees to
sell the Notes (and cause the Subsidiary Guarantors to issue the
Guarantees) to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase the
amount of Notes set opposite that Underwriter’s name in
Schedule II hereto. Each Underwriter will purchase such aggregate
principal amount of 2016 Notes at an aggregate purchase price equal
to 98.8% of the principal amount thereof and such aggregate
principal amount of 2026 Notes at an aggregate purchase price equal
to 97.553% of the principal amount thereof (collectively, the
“ Purchase Price ”).
The Company shall
not be obligated to deliver any of the Securities to be delivered
on the Closing Date (as defined below), except upon payment for all
the Securities to be purchased on the Closing Date as provided
herein.
Delivery of and
payment for the Securities shall be made at the offices of Shearman
& Sterling LLP, 599 Lexington Avenue, New York, New York 10022,
at 9:00 A.M., New York City time, on October 12, 2006 or at such
other date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes
referred to as the “ Closing Date .”
On the Closing
Date, one or more Notes in definitive form, registered in the name
of Cede & Co., as nominee of The Depository Trust Company
(“ DTC ”), having an aggregate principal amount
corresponding to the aggregate principal amount of Notes sold
pursuant to this Agreement (collectively, the “ Global
Notes ”), shall be delivered by the Company to the
Underwriters against payment by the Underwriters of the Purchase
Price thereof by wire transfer of immediately available funds as
the Company may direct, subject to Section 7(p) hereof, by written
notice delivered to you no later than one business day prior to the
Closing Date. The Global Notes in definitive form shall be made
available to the Underwriters for inspection not later than 2:00
p.m. on the business day prior to the Closing Date.
SECTION 4.
Offering of Notes by the Underwriters. Upon authorization by
the Representatives of the release of the Securities, the several
Underwriters propose to offer the Securities for sale upon the
terms and conditions set forth in the Prospectus.
SECTION 5.
Further Agreements of the Company . The Company
agrees:
(a) To
prepare the Prospectus in a form approved by the Underwriters and
to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than Commission’s close
of
10
business on the
second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required
by Rule 430A(a)(3) under the Securities Act; to make no
further amendment or any supplement to the Registration Statement
or to the Prospectus prior to the last Delivery Date except as
permitted herein (provided, however, this clause shall, in the case
of any periodic or current report that the Company is required to
file pursuant to Section 13(a), 13(c) or Section 15(d) under
the Exchange Act prior to or at the Delivery Date, apply to the
extent practicable in the light of the circumstances, but in any
event, the Underwriters shall be notified in advance of any such
filing that will be incorporated by reference in the Prospectus);
to advise the Underwriters, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to
furnish the Underwriters with copies thereof; to file promptly all
reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of
the Notes; to advise the Underwriters, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any Preliminary
Prospectus, the Time of Sale Prospectus or the Prospectus, of the
suspension of the qualification of the Notes for offering or sale
in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement, the Time of Sale Prospectus or the Prospectus or for
additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus, the Time of Sale Prospectus or the
Prospectus or suspending any such qualification, to use promptly
its best efforts to obtain its withdrawal.
(b) To
furnish promptly to each of the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits
filed therewith.
(c) To
deliver promptly to the Underwriters such number of the following
documents as the Underwriters shall reasonably request:
(i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits) and (ii) each Preliminary
Prospectus, the Time of Sale Prospectus or the Prospectus and any
amended or supplemented Prospectus; and, if the delivery of the
Prospectus (or in lieu thereof the notice referred to in Rule
173(a) under the Securities Act) is required at any time after the
effective date of the Registration Statement in connection with the
offering or sale of the Notes or any other securities relating
thereto and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus (or in lieu thereof the notice referred
to in Rule 173(a) under the Securities Act) is delivered, not
misleading, or, if for any other reason it shall be necessary to
amend or supplement the Prospectus in order to comply
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