-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WQoyp0YWt020rYZluRXHaoTCD9fjKy5Ijnnhof4l1TB3W/eTa0a6DF4QQEvBj0co KohzDNLsvnxWYf1CM2lo6g== 0000950103-09-000841.txt : 20090417 0000950103-09-000841.hdr.sgml : 20090417 20090417162629 ACCESSION NUMBER: 0000950103-09-000841 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 13 FILED AS OF DATE: 20090417 DATE AS OF CHANGE: 20090417 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Patriot Coal CORP CENTRAL INDEX KEY: 0001376812 STANDARD INDUSTRIAL CLASSIFICATION: BITUMINOUS COAL & LIGNITE MINING [1220] IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-157645 FILM NUMBER: 09757165 BUSINESS ADDRESS: STREET 1: 12312 OLIVE BOULEVARD STREET 2: SUITE 400 CITY: ST. LOUIS STATE: MO ZIP: 63141 BUSINESS PHONE: 314-275-3600 MAIL ADDRESS: STREET 1: 12312 OLIVE BOULEVARD STREET 2: SUITE 400 CITY: ST. LOUIS STATE: MO ZIP: 63141 FORMER COMPANY: FORMER CONFORMED NAME: Eastern Coal Holding Company, Inc. DATE OF NAME CHANGE: 20060928 S-3/A 1 dp13023_s3a1.htm FORM S-3/A AMENDMENT NO. 1
 
 
As filed with the Securities and Exchange Commission on April 17, 2009.
Registration No. 333-157645
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
PATRIOT COAL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
 
Delaware
  
20-5622045
(State or Other Jurisdiction of
Incorporation or Organization)
  
(I.R.S. Employer
Identification Number)
 
12312 Olive Boulevard, Suite 400
St. Louis, Missouri 63141
(314) 275-3600
  
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
 
 
Joseph W. Bean, Esq.
Senior Vice President - Law & Administration,
General Counsel and Corporate Secretary
12312 Olive Boulevard, Suite 400
St. Louis, Missouri 63141
(314) 275-3600
  
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
 
Copy to:
 
Sarah Beshar, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
  
 
Approximate date of commencement of proposed sale to the public:  From time to time after this Registration Statement becomes effective.
 
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
 
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
 
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o_______
 
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o______
 
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o
 
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  o
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
 
 
Large accelerated filer   x 
Accelerated filer  o
     
 
Non-accelerated filer     o    (Do not check if a smaller reporting company)
Smaller reporting company  o
     
 CALCULATION OF REGISTRATION FEE

Title of Each
Class of Securities
to be Registered
 
Amount to be Registered (1)
Proposed Maximum
Aggregate Offering
Price (2)
Amount of
Registration Fee (3)
Common Stock, par value $0.01 per share (and associated Series A Junior Participating Preferred Stock purchase rights) (4)
—
—
—
Preferred Stock
—
—
—
Debt Securities
—
—
—
Warrants to purchase Common Stock
—
—
—
Warrants to purchase Debt Securities
—
—
—
Purchase Contracts
—
—
—
Units
—
—
—
Total
—
$300,000,000
$11,790
 
(1)
We are registering such indeterminate number of shares of common stock and preferred stock, such indeterminate principal amount of debt securities, such indeterminate number of warrants to purchase common stock or debt securities, such indeterminate principal amount of purchase contracts, and such indeterminate number of units consisting of combinations of any of the foregoing as we may offer and sell from time to time, which together will have an aggregate initial offering price not to exceed $300,000,000. If any debt securities are issued with original issue discount, the offering price of such securities will be deemed to be the principal amount of such securities at maturity. The securities registered hereunder also include such indeterminate number of shares of common stock and preferred stock and principal amount of debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities, upon exercise of warrants or purchase contracts or pursuant to the antidilution provisions of any of such securities. In addition, pursuant to Rule 416 under the Securities Act, the shares of common stock and preferred stock being registered hereunder include such indeterminate number of shares as may be issuable as a result of stock splits, stock dividends or similar transactions.
 
(2)
The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection with the issuance of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D of Form S−3 under the Securities Act.
 
(3)
Calculated pursuant to Rule 457(o) under the Securities Act.
 
(4)
As of the date hereof, rights (the “Rights”) to purchase Series A Junior Participating Preferred Stock, par value $0.01 per share, issued pursuant to the Rights Agreement dated as of October 22, 2007, as amended, between the registrant and American Stock Transfer & Trust Company, as Rights Agent, are attached to and trade with the common stock, par value $0.01 per share, of the registrant. The value of the attributable Rights, if any, is reflected in the market price of the registrant’s common stock.
 
 
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
 
Subject to completion, dated April 17, 2009
PROSPECTUS
 
 
 
PATRIOT COAL CORPORATION
 
 
COMMON STOCK • PREFERRED STOCK • DEBT SECURITIES • WARRANTS • PURCHASE CONTRACTS • UNITS

We may offer from time to time, in one or more series, any one or any combination of the following:
 
 
·
common stock;
 
 
·
preferred stock;
 
 
·
debt securities;
 
 
·
warrants;
 
 
·
purchase contracts; and
 
 
·
units.
 
The common stock of Patriot Coal Corporation is traded on the New York Stock Exchange under the symbol “PCX.”
 
Specific terms of these securities will be provided in supplements to this prospectus. You should read this prospectus and any supplement carefully before you invest.
 
You should read this prospectus and the applicable prospectus supplement, as well as the risks contained or described in the documents incorporated by reference in this prospectus or any accompanying prospectus supplement, before you invest.
 
 
Investing in these securities involves certain risks. See “Risk Factors” beginning on page 23 of our annual report on Form 10-K for the year ended December 31, 2008, which is incorporated by reference herein.
 
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved these securities, or determined if this prospectus is truthful or complete.  Any representation to the contrary is a criminal offense.
 
 
The date of this prospectus is _________, 2009

 
 
You should rely only on the information contained in or incorporated by reference in this prospectus.  We have not authorized anyone to provide you with different information.  We are not making an offer of these securities in any state where the offer is not permitted.  You should not assume that the information contained in or incorporated by reference in this prospectus is accurate as of any date other than the date on the front of this prospectus. Unless the context indicates otherwise, all references in this report to Patriot, the Company, us, we, or our include Patriot Coal Corporation and its subsidiaries.
 

 

 
 
Page
 
 


 
 
This prospectus is part of a registration statement that we filed with the SEC utilizing a “shelf” registration process. Under this shelf process, we may sell any combination of the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the heading “Where You Can Find More Information.”
 
 

 
 
We are a leading producer of thermal coal in the eastern United States, with operations and coal reserves in Appalachia and the Illinois Basin. We are also a leading U.S. producer of metallurgical quality coal. We and our predecessor companies have operated in these regions for more than 50 years. Our operations consist of sixteen mining complexes which include company-operated mines, contractor-operated mines and coal preparation facilities. One of our mining complexes is located in northern West Virginia, twelve are located in southern West Virginia and three are located in western Kentucky. We ship coal to electric utilities, industrial users and metallurgical coal customers via various company-owned and third-party loading facilities and multiple rail and river transportation routes.
 
In 2008, we sold 28.5 million tons of coal, of which 79% was sold to domestic electric utilities and 21% was sold to domestic and global steel producers.  We control approximately 1.8 billion tons of proven and probable coal reserves. Our proven and probable coal reserves include metallurgical coal and medium and high-Btu thermal coal, with low, medium and high sulfur content. We believe we are well-positioned to meet customers’ demand for various products, given the diverse coal qualities available in our proven and probable coal reserves.
 
Effective October 31, 2007, we were spun-off from Peabody Energy Corporation (Peabody) and became a separate, public company traded on the New York Stock Exchange (symbol PCX).  Prior to the spin-off, we were wholly-owned subsidiaries of Peabody and our operations were a part of Peabody’s operations. Many of our subsidiaries were acquired during the 1980s and 1990s, when Peabody grew through expansion and acquisition. The spin-off from Peabody, including coal assets and operations in Appalachia and the Illinois Basin, was accomplished through a dividend of all outstanding shares of Patriot.  Distribution of the Patriot stock to Peabody’s stockholders occurred on October 31, 2007, at a ratio of one share of Patriot stock for every 10 shares of Peabody stock.
 
On July 23, 2008, we consummated the acquisition of Magnum Coal Company (“Magnum”). Magnum stockholders received 23,803,312 shares of newly-issued Patriot common stock and cash in lieu of fractional shares. The fair value of $25.29 per share of Patriot common stock issued to the Magnum shareholders was based on the average of the Patriot stock price for the five business days surrounding and including the merger announcement date, April 2, 2008.  The total purchase price was $739.0 million, including the assumption of $148.6 million of long-term debt, $11.8 million of which related to capital lease obligations.  In conjunction with the acquisition, we issued debt in order to repay Magnum’s existing senior secured indebtedness. Magnum was one of the largest coal producers in Appalachia, operating 11 mines and 7 preparation plants with production from surface and underground mines and controlling more than 600 million tons of proven and probable coal reserves.
 
Effective August 11, 2008, we implemented a 2-for-1 stock split effected in the form of a 100% stock dividend.  All share and per share amounts in this Registration Statement on Form S-3 reflect this stock split.

 
 

Our principal executive offices are located at 12312 Olive Boulevard, Suite 400, St. Louis, Missouri, 63141 and our telephone number is (314) 275-3600.  We maintain a website at www.patriotcoal.com where general information about us is available.  We are not incorporating the contents of the website into this prospectus.
 
 
 
We file annual, quarterly and current reports, proxy statements and other information with the SEC.  You may read and copy any document that we file at the Public Reference Room of the SEC at 100 F Street, N.E., Washington, D.C. 20549.  You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.  In addition, the SEC maintains an Internet site at http://www.sec.gov, from which interested persons can electronically access our SEC filings, including the registration statement and the exhibits and schedules thereto.
 
The SEC allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and all documents subsequently filed with the SEC pursuant to Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended,  prior to the termination of the offering under this prospectus:
 
 
(a)
Current Reports on Form 8-K dated February 4, February 6, February 10 (for the Form 8-K filed on such date with respect to Items 5.02 and 9.01) and February 26, 2009;
 
 
(b)
Annual Report on Form 10-K for the year ended December 31, 2008; and
 
 
(c)
Definitive Proxy Statement on Schedule 14A filed on April 1, 2009.
 
You may also request copies of our filings, free of charge, by telephone at (314) 275-3680 or by mail at: Patriot Coal Corporation, 12312 Olive Boulevard, St. Louis, Missouri 63141, attention: Investor Relations.
 
 
 
This prospectus includes forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995.  We have based these forward-looking statements on our current expectations and projections about future events.  These forward-looking statements are subject to risks, uncertainties, and assumptions about our business, including, among other things:
 
 
·
difficulty in implementing our business strategy;
 
 
·
geologic, equipment and operational risks associated with mining;
 
 
·
changes in general economic conditions, including coal and power market conditions;
 
 
·
availability and costs of credit, surety bonds and letters of credit;
 
 
·
the outcome of commercial negotiations involving sales contracts or other transactions;
 
 
·
economic strength and political stability of countries in which we serve customers;
 
 
·
downturns in consumer and company spending;
 
 
·
supplier and contract miner performance, and the availability and cost of key equipment and commodities;
 
 
·
availability and costs of transportation;
 
 
·
worldwide economic and political conditions;
 
 
·
labor availability and relations;
 
 
·
our ability to replace proven and probable coal reserves;
 
 
 
 
·
the effects of mergers, acquisitions and divestitures, including our ability to successfully integrate mergers and acquisitions;
 
 
·
our ability to respond to changing customer preferences;
 
 
·
our dependence on Peabody Energy for a significant portion of our revenues;
 
 
·
price volatility and demand, particularly in higher margin products;
 
 
·
reductions of purchases by major customers;
 
 
·
failure to comply with debt covenants;
 
 
·
customer performance and credit risks;
 
 
·
regulatory and court decisions including, but not limited to, those impacting permits issued pursuant to the Clean Water Act;
 
 
·
environmental laws and regulations including those affecting our operations and those affecting our customers’ coal usage;
 
 
·
developments in greenhouse gas emission regulation and treatment, including any development of commercially successful carbon capture and storage techniques;
 
 
·
coal mining laws and regulations;
 
 
·
the outcome of pending or future litigation;
 
 
·
weather patterns affecting energy demand;
 
 
·
competition in our industry;
 
 
·
changes in postretirement benefit obligations;
 
 
·
changes to contribution requirements to multi-employer benefit funds;
 
 
·
availability and costs of competing energy resources;
 
 
·
interest rate fluctuation;
 
 
·
inflationary trends, including those impacting materials used in our business;
 
 
·
wars and acts of terrorism or sabotage;
 
 
·
impact of pandemic illness; and
 
 
·
other factors, including those discussed in Legal Proceedings set forth in Item 3 of our Annual Report on Form 10-K for the year ended December 31, 2008.
 
These factors should not be construed as exhaustive and should be read in conjunction with the other cautionary statements that are included in the documents incorporated by reference. If one or more of these or other risks or uncertainties materialize, or if our underlying assumptions prove to be incorrect, actual results may vary materially from what we projected. Consequently, actual events and results may vary significantly from those included in or contemplated or implied by our forward-looking statements. We do not undertake any obligation to update the forward-looking statements, except as required by federal securities laws.
 
 
 
An investment in our securities involves risks.  We urge you to consider carefully those risks identified under “Item IA. Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2008, which is incorporated by reference in this prospectus and which may be amended, supplemented or superseded from time to time by other reports that we subsequently file with the SEC.  Additional risks, including those that relate to any particular securities we offer, may be included in a prospectus supplement or free writing prospectus that we authorize from time to time, or that are incorporated by reference into this prospectus or a prospectus supplement.
 
Our business, financial condition, results of operations and cash flows could be materially adversely affected by any of these risks.  The market or trading price of our securities could decline due to any of these risks.  Additional risks not presently known to us or that we currently deem immaterial also may impair our business and operations or cause the price of our securities to decline.
 

 
 
The ratio of earnings to fixed charges presented below should be read together with the financial statements and the notes accompanying them and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included in our Annual Report on Form 10-K for the year ended December 31, 2008, incorporated by reference into this prospectus. For purposes of the computation of the ratio of earnings to fixed charges, earnings consist of pre-tax income from continuing operations before adjustment for minority interest in a consolidated subsidiary and income from equity investees plus fixed charges and distributed income of equity investees.  Fixed charges consist of interest expense on all indebtedness plus the interest component of lease rental expense.
 
   
Year Ended
December 31, 2008
  
Year Ended
December 31, 2007
  
Year Ended
 December 31, 2006
  
Year Ended
 December 31, 2005
  
Year Ended
 December 31, 2004
Ratio of earnings to fixed charges(1)
  
6.2x
  
N/A
  
1.9x
  
2.7x
  
N/A
 
(1)     Earnings were insufficient to cover fixed charges by $102.5 million and $72.6 million for the years ended December 31, 2007 and 2004, respectively.
 
 
 
Unless otherwise indicated in the prospectus supplement, we will use all or a portion of the net proceeds from the sale of our securities offered by this prospectus and the prospectus supplement for general corporate purposes. General corporate purposes may include repayment of other debt, capital expenditures, possible acquisitions and any other purposes that may be stated in any prospectus supplement. The net proceeds may be invested temporarily or applied to repay short-term or revolving debt until they are used for their stated purpose.
 
 
 
The following description of our capital stock is based upon our certificate of incorporation (“Certificate of Incorporation”), our bylaws (“Bylaws”), the Rights Agreement dated as of October 22, 2007, as amended, between the Registrant and American Stock Transfer & Trust Company, as Rights Agent (“Rights Agreement”) and applicable provisions of law. We have summarized certain portions of the Certificate of Incorporation and Bylaws below.  The summary is not complete.  The Certificate of Incorporation and Bylaws are incorporated by reference in the registration statement for these securities that we have filed with the SEC and have been filed as exhibits to our 10-K for the year ended December 31, 2008.  You should read the Certificate of Incorporation and Bylaws for the provisions that are important to you.
 
Certain provisions of the Delaware General Corporation Law (“DGCL”), the Certificate of Incorporation and the Bylaws summarized in the following paragraphs may have an anti-takeover effect.  This may delay, defer or prevent a tender offer or takeover attempt that a shareholder might consider in its best interests, including those attempts that might result in a premium over the market price for its shares. See also “Anti-Takeover Effects of Provisions of Delaware Law and Patriot’s Charter and By-Laws.”
 
Patriot’s authorized capital stock consists of 100 million shares of common stock, par value $0.01 per share, and 10 million shares of preferred stock, par value $0.01 per share. The authorized preferred shares include 1 million shares of Series A Junior Participating Preferred Stock. At the close of business on March 31, 2009, approximately 78,125,159 shares of common stock were issued and outstanding and no shares of preferred stock were issued and outstanding.
 
Description of Common Stock
 
Dividends
 
Subject to preferences that may be applicable to any series of preferred stock, the owners of Patriot common stock may receive dividends when declared by the board of directors out of funds legally available for the payment of dividends. All decisions regarding the declaration and payment of dividends will be evaluated from time to time in light of Patriot’s financial condition, earnings, growth prospects, funding requirements, applicable law and other factors the Patriot board of directors deems relevant.
 
Voting Rights
 
Each share of common stock is entitled to one vote in the election of directors and all other matters submitted to stockholder vote. Except as otherwise required by law or provided in any resolution adopted by Patriot’s board of directors with respect to any series of preferred stock, the holders of Patriot common stock possess all voting power. No cumulative voting rights exist. In general, all matters submitted to a meeting of stockholders, other than as described below, are decided by vote of a majority of the shares of Patriot’s common stock present in person or represented by proxy at the meeting and entitled to vote on the matter. Directors are elected by a plurality of the shares of Patriot’s common stock present in person or represented by proxy at the meeting and entitled to vote on the election of directors.
 
The approval of at least 75% of the shares of Patriot’s outstanding common stock entitled to vote is necessary to approve certain actions, such as amending the provisions of Patriot’s by-laws or certificate of incorporation relating to the plurality voting standard for the election of directors, the number and manner of election and removal of directors, the classified nature of Patriot’s board of directors, the manner of filling vacancies thereon or prohibiting action by the stockholders by written consent, or electing a director to fill a vacancy if the stockholders’ power to do so is expressly conferred by applicable Delaware law. Other amendments to Patriot’s by-laws and certificate of incorporation, and certain extraordinary transactions (such as a merger or consolidation involving Patriot or a sale of all or substantially all of the assets of Patriot), must be approved by a majority of Patriot’s outstanding common stock entitled to vote.
 
Liquidation Rights
 
If Patriot liquidates, dissolves or winds-up its business, whether voluntarily or not, Patriot’s common stockholders will share equally in the distribution of all assets remaining after payment to creditors and preferred stockholders.
 
Preemptive Rights
 
The common stock does not carry preemptive or similar rights.
 
Listing
 
Patriot’s common stock is listed on the New York Stock Exchange under the trading symbol “PCX.”
 
Transfer Agent and Registrar
 
The transfer agent and registrar for Patriot’s common stock is American Stock Transfer & Trust Company.
 
Authorized but Unissued Capital Stock
 
Delaware law does not require stockholder approval for any issuance of authorized shares. However, the listing requirements of the New York Stock Exchange, which would apply so long as the common stock remains listed on the New York Stock Exchange, require stockholder approval of certain issuances equal to or exceeding 20% of the then-outstanding number of shares of common stock. These additional shares may be used for a variety of corporate purposes, including future public offerings, to raise additional capital or to facilitate acquisitions.
 
One of the effects of the existence of unissued and unreserved common stock or preferred stock may be to enable Patriot’s board of directors to issue shares to persons friendly to current management, which issuance could render more difficult or discourage an attempt to obtain control of Patriot by means of a merger, tender offer, proxy contest or otherwise, and thereby protect the continuity of Patriot’s management and possibly deprive the stockholders of opportunities to sell their shares of common stock at prices higher than prevailing market prices.
 
Anti-Takeover Effects of Provisions of Delaware Law and Patriot’s Charter and By-Laws
 
Delaware Law
 
Patriot is subject to the provisions of Section 203 of the Delaware General Corporation Law, which applies to a broad range of business combinations between a Delaware corporation and an interested stockholder. The Delaware law definition of business combination includes mergers, sales of assets, issuances of voting stock and certain other transactions. An interested stockholder is defined as any person who owns, directly or indirectly, 15% or more of the outstanding voting stock of a corporation.
 
Section 203 prohibits a corporation from engaging in a business combination with an interested stockholder for a period of three years following the date on which the stockholder became an interested stockholder, unless:
 
 
·
the board of directors approved the business combination before the stockholder became an interested stockholder, or the board approved the transaction that resulted in the stockholder becoming an interested stockholder;
 
 
·
upon completion of the transaction which resulted in the stockholder becoming an interested stockholder, such stockholder owned at least 85% of the voting stock outstanding when the transaction  began other than shares held by directors who are also officers and other than shares held by certain employee stock plans;
 
 
·
or  the board approved the business combination after the stockholder became an interested stockholder and the business combination was approved at a meeting by at least two-thirds of the outstanding voting stock not owned by such stockholder.
 
 
 
These limitations on business combinations with interested stockholders do not apply to a corporation that does not have a class of stock listed on a national securities exchange, authorized for quotation on an interdealer quotation system of a registered national securities association or held of record by more than 2,000 stockholders.
 
The provisions of Section 203 may encourage companies interested in acquiring Patriot to negotiate in advance with Patriot’s board of directors because the stockholder approval requirement would be avoided if Patriot’s board of directors approves either the business combination or the transaction which results in the stockholder becoming an interested stockholder. These provisions also may have the effect of preventing changes in Patriot’s board of directors and may make it more difficult to accomplish transactions which stockholders may otherwise deem to be in their best interests.
 
Certificate of Incorporation; By-Laws
 
Patriot’s certificate of incorporation and by-laws contain provisions that could make more difficult the acquisition of Patriot by means of a tender offer, a proxy contest or otherwise. These provisions are summarized below.
 
Classes of Preferred Stock. Under Patriot’s certificate of incorporation, Patriot’s board of directors has the full authority permitted by Delaware law to determine the voting rights, if any, and designations, preferences, limitations and special rights of any class or any series of any class of the preferred stock, which may be greater than those of Patriot’s common stock. The effects of the issuance of a new series or class of preferred stock might include, among other things, restricting dividends on Patriot’s common stock, diluting the voting power of Patriot’s common stock, impairing the liquidation rights of Patriot’s common stock, or delaying or preventing a change in control of Patriot.
 
Removal of Directors; Filling Vacancies. Patriot’s certificate of incorporation and by-laws provide that directors may be removed only for cause and only upon the affirmative vote of holders of at least 75% of the voting power of all the outstanding shares of stock entitled to vote generally in the election of directors, voting together as a single class. Additionally, only Patriot’s board of directors will be authorized to fix the number of directors and to fill any vacancies on Patriot’s board. These provisions could make it more difficult for a potential acquirer to gain control of Patriot’s board.
 
Stockholder Action. Patriot’s certificate of incorporation and by-laws provide that stockholder action can be taken only at an annual or special meeting of stockholders and may not be taken by written consent in lieu of a meeting. Patriot’s certificate of incorporation and by-laws provide that special meetings of stockholders can be called only by Patriot’s Chief Executive Officer or pursuant to a resolution adopted by Patriot’s board. Stockholders are not permitted to call a special meeting or to require that the Board call a special meeting of stockholders.
 
Advance Notice Procedures. Patriot’s by-laws establish an advance notice procedure for stockholders to make nominations of candidates for election as directors, or bring other business before an annual or special meeting of stockholders. This notice procedure provides that only persons who are nominated by, or at the direction of Patriot’s board, the chairman of the board, or by a stockholder who has given timely written notice to the secretary of Patriot prior to the meeting at which directors are to be elected, will be eligible for election as directors. This procedure also requires that, in order to raise matters at an annual or special meeting, those matters be raised before the meeting pursuant to the notice of meeting Patriot delivers or by, or at the direction of, the chairman or by a stockholder who is entitled to vote at the meeting and who has given timely written notice to the secretary of Patriot of his intention to raise those matters at the annual meeting. If the chairman or other officer presiding at a meeting determines that a person was not nominated, or other business was not brought before the meeting, in accordance with the notice procedure, that person will not be eligible for election as a director, or that business will not be conducted at the meeting.
 
Classified board of directors. Patriot’s certificate of incorporation provides for Patriot’s board to be divided into three classes of directors, as nearly equal in number as possible, serving staggered terms. Approximately one-third of Patriot’s board will be elected each year. Under Section 141 of the Delaware General Corporation Law, directors serving on a classified Board can only be removed for cause. The initial term of Class I directors expired in 2008, the initial term of Class II directors expires in 2009 and the initial term of Class III directors expires in 2010.
 
 
 
After the initial term of each class, Patriot’s directors will serve three-year terms. At each annual meeting of stockholders, a class of directors will be elected for a three-year term to succeed the directors of the same class whose terms are then expiring. Patriot’s board currently consists of ten directors.
 
The provision for a classified board could prevent a party that acquires control of a majority of the outstanding voting stock from obtaining control of Patriot’s board until the second annual stockholders meeting following the date the acquiror obtains the controlling stock interest. The classified board provision could have the effect of discouraging a potential acquiror from making a tender offer for Patriot’s shares or otherwise attempting to obtain control of Patriot and could increase the likelihood that Patriot’s incumbent directors will retain their positions.
 
Amendments.  Patriot’s certificate of incorporation provides that the affirmative vote of the holders of at least 75% of the voting power of the outstanding shares entitled to vote, voting together as a single class, is required to amend the provisions of Patriot’s certificate of incorporation relating to the prohibition of stockholder action without a meeting, the number, election and term of Patriot’s directors, the classified board and the removal of directors. Patriot’s certificate of incorporation further provides that Patriot’s by-laws may be amended by Patriot’s board or by the affirmative vote of the holders of at least 75% of the outstanding shares entitled to vote, voting together as a single class.
 
Rights Agreement
 
Patriot’s board of directors adopted a Rights Agreement dated as of October 22, 2007, as amended. Under the rights agreement, one preferred share purchase right was issued for each outstanding share of common stock.
 
Purchase Price
 
Once the rights become exercisable, each right will entitle the registered holder to purchase from Patriot one-half of one one-hundredths of a share of Patriot’s Series A Junior Participating Preferred Stock, or preferred shares, par value $0.01 per share, at a price of $125 per one-half of one one-hundredths of a preferred share, subject to adjustment.
 
Flip-In
 
In the event that any person or group of affiliated or associated persons acquires beneficial ownership of 15% or more of Patriot’s outstanding common stock, each holder of a right, other than rights beneficially owned by the acquiring person (which will thereafter be void), will thereafter have the right to receive upon exercise at a price equal to one-half the exercise price that number of shares of Patriot’s common stock having a market value equal to the full exercise price of the right.
 
Flip-Over
 
If Patriot is acquired in a merger or other business combination transaction or 50% or more of Patriot’s combined assets or earning power are sold after a person or group acquires beneficial ownership of 15% or more of Patriot’s outstanding common stock, each holder of a right (other than rights beneficially owned by the acquiring person, which will be void) will thereafter have the right to receive upon exercise at a price equal to one-half the exercise price that number of shares of common stock of the acquiring company which at the time of such transaction will have a market value equal to the full exercise price of the right.
 
Distribution Date
 
The distribution date is the earlier of: (1) 10 days following a public announcement that a person or group of affiliated or associated persons have acquired beneficial ownership of 15% or more of Patriot’s outstanding common stock; or (2) 10 business days (or such later date as may be determined by action of Patriot’s board of directors prior to such time as any person or group of affiliated persons acquires beneficial ownership of 15% or more of Patriot’s outstanding common stock) following the commencement of, or announcement of an intention to make, a tender offer or exchange offer the consummation of which would result in the beneficial ownership by a person or group of 15% or more of Patriot’s outstanding common stock.
 
 
 
Transfer and Detachment
 
Until the distribution date, the rights will be evidenced by book entry in Patriot’s direct registration system. Until the distribution date (or earlier redemption or expiration of the rights), the rights will be transferred with and only with the common stock, and transfer of those shares will also constitute transfer of the rights.
 
Exercisability
 
The rights are not exercisable until the distribution date. The rights will expire at the earliest of (1) October 22, 2017, unless that date is extended, (2) the time at which Patriot redeems the rights, as described below, or (3) the time at which Patriot exchanges the rights, as described below.
 
Adjustments
 
The purchase price payable, and the number of preferred shares or other securities or property issuable, upon exercise of the rights are subject to adjustment from time to time to prevent dilution in the event of stock dividends, stock splits, reclassifications, or certain distributions with respect to preferred shares. The number of outstanding rights and the number of one one-hundredths of a preferred share issuable upon exercise of each right are also subject to adjustment if, prior to the distribution date, there is a stock split of Patriot’s common stock or a stock dividend on Patriot’s common stock payable in common stock or subdivisions, consolidations or combinations of Patriot’s common stock. With certain exceptions, no adjustment in the purchase price will be required until cumulative adjustments require an adjustment of at least 1% in the purchase price.
 
Preferred Shares
 
Preferred shares purchasable upon exercise of the rights will not be redeemable. Each preferred share will be entitled to the greater of (a) a minimum preferential quarterly dividend payment of $1.00 per share and (b) 200 times the aggregate dividend declared per share of common stock, subject to adjustment. In the event of liquidation, the holders of the preferred shares will be entitled to a preferential liquidation payment equal to the greater of (i) $100 per share plus accrued and unpaid dividends and (ii) 200 times the payment made per share of common stock. Each preferred share will have 200 votes, voting together with the common stock. Finally, in the event of any merger, consolidation or other transaction in which shares of Patriot’s common stock are exchanged, each preferred share will be entitled to receive 200 times the amount received per share of common stock. These rights are protected by customary anti-dilution provisions.
 
The value of the one-half of one one-hundredths interest in a preferred share purchasable upon exercise of each right should, because of the nature of the preferred shares’ dividend, liquidation and voting rights, approximate the value of one share of Patriot’s common stock.
 
Exchange
 
At any time after any person or group acquires beneficial ownership of 15% or more of Patriot’s outstanding common stock, and prior to the acquisition by such person or group of beneficial ownership of 50% or more of Patriot’s outstanding common stock, Patriot’s board of directors may exchange the rights (other than rights owned by the acquiring person, which will have become void), in whole or in part, at an exchange ratio of one share of Patriot’s common stock or, in certain circumstances, a fraction of a preferred share with a market value equal to the market value of a share of common stock.
 
Redemption
 
At any time prior to any person or group acquiring beneficial ownership of 15% or more of Patriot’s outstanding common stock, Patriot’s board of directors may redeem the rights in whole, but not in part, at a price of $0.0005 per right. The redemption of the rights may be made effective at such time on such basis with such conditions as Patriot’s board in its sole discretion may establish. Immediately upon any redemption of the rights, the right to exercise the rights will terminate and the only right of the holders of rights will be to receive the redemption price.
 
 
 
Amendments
 
The terms of the rights may be amended by Patriot’s board of directors without the consent of the holders of the rights, including an amendment to lower certain thresholds described above to not less than 10%, except that the board may not reduce or cancel the redemption price and from and after such time as any person or group of affiliated or associated persons acquires beneficial ownership of 15% or more of Patriot’s outstanding common stock, no such amendment may adversely affect the interests of the holders of the rights.
 
Rights of Holders
 
Until a right is exercised, the holder thereof, as such, will have no rights as a stockholder of Patriot’s company, including, without limitation, the right to vote or to receive dividends.
 
Anti-takeover Effects
 
The rights have certain anti-takeover effects. If the rights become exercisable, the rights will cause substantial dilution to a person or group that attempts to acquire Patriot on terms not approved by Patriot’s board of directors, except pursuant to any offer conditioned on a substantial number of rights being acquired. The rights should not interfere with any merger or other business combination approved by Patriot’s board since the rights may be redeemed by Patriot at a nominal price prior to the time that a person or group has acquired beneficial ownership of 15% or more of Patriot’s common stock. Thus, the rights are intended to encourage persons who may seek to acquire control of Patriot to initiate such an acquisition through negotiations with Patriot’s board. However, the effect of the rights may be to discourage a third party from making a partial tender offer or otherwise attempting to obtain a substantial equity position in Patriot’s equity securities or seeking to obtain control of Patriot. To the extent any potential acquirors are deterred by the rights, the rights may have the effect of preserving incumbent management in office.
 
Voting and Standstill Agreement
 
Patriot, ArcLight Energy Partners Fund I, L.P. and ArcLight Energy Partners Fund II, L.P. (together, “ArcLight Funds”), acting jointly, as stockholder representative (the “Stockholder Representative”), and certain stockholders of Magnum Coal Company (“Stockholders”) entered into a Voting and Standstill Agreement dated as of April 2, 2008 (the “Voting Agreement”).
 
Stockholder Nominees to the Patriot Board
 
Pursuant to the Voting Agreement, Patriot’s board of directors will appoint two nominees designated by certain former holders of Magnum Coal Company (“Magnum”) common stock, acting through the Stockholder Representative. If elected, one such nominee will serve as a Class I director and the other nominee will serve as a Class II director on Patriot’s board of directors. Any board nominee or replacement selected by the stockholder representative must be reasonably acceptable to the nominating and governance committee of Patriot’s board of directors and must, to the reasonable satisfaction of the nominating and governance committee, be an “independent director” under the New York Stock Exchange’s listing standards, disregarding certain disclosed relationships.
 
At such time as certain former holders of Magnum common stock own less than twenty percent (but at least ten percent) of the Patriot common stock outstanding or the ArcLight Funds own less than ten percent of the Patriot common stock outstanding, the Stockholder Representative will be entitled to one board nominee only. At such time as certain former holders of Magnum common stock own less than ten percent of the Patriot common stock outstanding, the Stockholder Representative will not be entitled to any board nominees. For purposes of the determinations under this paragraph, the number of shares of Patriot common stock “outstanding” will be deemed to be the sum of the number of shares outstanding as of April 2, 2008 plus the number of shares issued in the Magnum acquisition.
 
Voting Obligations of Stockholders
 
Pursuant to the Voting Agreement, so long as the Stockholder Representative is entitled to nominate any members to Patriot’s board of directors, Stockholders agree to vote all of their shares of Patriot common stock in favor of the entire slate of directors recommended for election by the Patriot board of directors to Patriot’s stockholders and certain Stockholders agree to vote all of their shares of Patriot common stock as recommended by Patriot’s board of directors in
 
 
 
the case of (1) any stockholder proposal submitted for a vote at any meeting of Patriot’s stockholders and (2) any proposal submitted by Patriot for a vote at any meeting of Patriot’s stockholders relating to the appointment of Patriot’s accountants or a Patriot equity compensation plan.
 
Private Convertible Notes Issuance
 
On May 28, 2008, Patriot completed a private offering of $200 million in aggregate principal amount of 3.25% Convertible Senior Notes due 2013 (the convertible notes). Interest on the convertible notes is payable semi-annually in arrears on May 31 and November 30 of each year, beginning November 30, 2008. The convertible notes mature on May 31, 2013, unless converted, repurchased or redeemed in accordance with their terms prior to such date. The convertible notes are senior unsecured obligations and rank equally with all of the Company’s existing and future senior debt and are senior to any subordinated debt. The convertible notes are convertible into cash and, if applicable, shares of Patriot’s common stock during the period from issuance to February 15, 2013, subject to certain conditions of conversion. For a further description of the Private Convertible Notes Issuance, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Liquidity and Capital Resources” in our annual report on Form 10-K for the year ended December 31, 2008.
 
 
Patriot’s certificate of incorporation authorizes Patriot’s board of directors, without the approval of stockholders, to fix the designation, powers, preferences and rights of one or more series of preferred stock, which may be greater than those of the common stock. The issuance of shares of preferred stock, or the issuance of rights to purchase shares of preferred stock, could be used to discourage an unsolicited acquisition proposal.
 
The transfer agent for each series of preferred stock will be described in the prospectus supplement.
 
 
We may issue warrants to purchase our equity or debt securities or securities of third parties or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing.  Warrants may be issued independently or together with any other securities and may be attached to, or separate from, such securities.  Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent.  The terms of any warrants to be issued and a description of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus supplement.
 
 
We may issue purchase contracts for the purchase or sale of:
 
 
·
debt or equity securities issued by us or securities of third parties, a basket of such securities, an index or indices or such securities or any combination of the above as specified in the applicable prospectus supplement;
 
 
·
currencies; or
 
 
·
commodities.
 
Each purchase contract will entitle the holder thereof to purchase or sell, and obligate us to sell or purchase, on specified dates, such securities, currencies or commodities at a specified purchase price, which may be based on a formula, all as set forth in the applicable prospectus supplement.  We may, however, satisfy our obligations, if any, with respect to any purchase contract by delivering the cash value of such purchase contract or the cash value of the property otherwise deliverable or, in the case of purchase contracts on underlying currencies, by delivering the underlying currencies, as set forth in the applicable prospectus supplement.  The applicable prospectus supplement will also specify the methods by which the holders may purchase or sell such securities, currencies or commodities and any acceleration, cancellation or termination provisions or other provisions relating to the settlement of a purchase contract.
 
The purchase contracts may require us to make periodic payments to the holders thereof or vice versa, which payments may be deferred to the extent set forth in the applicable prospectus supplement, and those payments may be unsecured or prefunded on some basis.  The purchase contracts may require the holders thereof to secure their obligations in a specified manner to be described in the applicable prospectus supplement.  Alternatively, purchase contracts may require holders to satisfy their obligations thereunder when the purchase contracts are issued.  Our
 
 
 
obligation to settle such pre-paid purchase contracts on the relevant settlement date may constitute indebtedness.  Accordingly, pre-paid purchase contracts will be issued under the senior indenture.
 
 
 
As specified in the applicable prospectus supplement, we may issue units consisting of one or more purchase contracts, warrants, debt securities, shares of preferred stock, shares of common stock or any combination of such securities.
 
 
 
This prospectus describes certain general terms and provisions of the debt securities. The debt securities will be issued under an indenture between us and Wilmington Trust Company, as trustee.  The debt securities will constitute senior debt of Patriot.  When we offer to sell a particular series of debt securities, we will describe the specific terms for the securities in a supplement to this prospectus.  The prospectus supplement will also indicate whether the general terms and provisions described in this prospectus apply to a particular series of debt securities.
 
We have summarized certain terms and provisions of the indenture.  The summary is not complete.  The indenture has been incorporated by reference as an exhibit to the registration statement for these securities that we have filed with the SEC.  You should read the indenture for the provisions which may be important to you.  The indenture is subject to and governed by the Trust Indenture Act of 1939, as amended.
 
The indenture will not limit the amount of debt securities which we may issue.  We may issue debt securities up to an aggregate principal amount as we may authorize from time to time.  The debt securities will be issued in the form of global securities unless the prospectus supplement indicates otherwise.  The prospectus supplement will describe the terms of any debt securities being offered, including:
 
 
·
the designation, aggregate principal amount and authorized denominations;
 
 
·
the maturity date;
 
 
·
the interest rate, if any, and the method for calculating the interest rate;
 
 
·
the interest payment dates and the record dates for the interest payments;
 
 
·
any mandatory or optional redemption terms or prepayment, conversion, sinking fund or exchangeability or convertability provisions;
 
 
·
the place where we will pay principal and interest;
 
 
·
if other than denominations of $1,000 or multiples of $1,000, the denominations the debt securities will be issued in;
 
 
·
additional provisions, if any, relating to the defeasance of the debt securities;
 
 
·
the currency or currencies, if other than the currency of the United States, in which principal and interest will be paid;
 
 
·
any United States federal income tax consequences;
 
 
·
the dates on which premium, if any, will be paid;
 
 
·
our right, if any, to defer payment interest and the maximum length of this deferral period;
 
 
·
any listing on a securities exchange;
 
 
·
the initial public offering price; and
 
 
·
other specific terms, including any additional events of default or covenants.
 
Senior Debt
 
Patriot will issue under the indenture debt securities that will constitute part of the senior debt of Patriot.  These senior debt securities will rank equally and pari passu with all other unsecured and unsubordinated debt of Patriot.
 
 
 
Events of Default
 
When we use the term “Event of Default” in the indenture with respect to the debt securities of any series, here are some examples of what we mean:
 
 
(1)
default in paying interest on the debt securities when it becomes due and the default continues for a period of 30 days or more;
 
 
(2)
default in paying principal, or premium, if any, on the debt securities when due;
 
 
(3)
default in the performance, or breach, of any covenant in the indenture (other than defaults specified in clause (1) or (2) above) and the default or breach continues for a period of 30 days or more after we receive written notice from the trustee or the trustee receives notice from the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the series;
 
 
(4)
certain events of bankruptcy, insolvency, reorganization, administration or similar proceedings with respect to Patriot or any material subsidiary has occurred; or
 
 
(5)
any other Events of Default set forth in the prospectus supplement.
 
If an Event of Default (other than an Event of Default specified in clause (4) with respect to Patriot under the indenture occurs with respect to the debt securities of any series and is continuing, then the trustee or the holders of at least 25% in principal amount of the outstanding debt securities of that series may by written notice, and the trustee at the request of the holders of not less than 25% in principal amount of the outstanding debt securities of such series will, require us to repay immediately the entire principal amount of the outstanding debt securities of that series (or such lesser amount as may be provided in the terms of the securities), together with all accrued and unpaid interest and premium, if any.
 
If an Event of Default under the indenture specified in clause (4) with respect to Patriot occurs and is continuing, then the entire principal amount of the outstanding debt securities (or such lesser amount as may be provided in the terms of the securities) will automatically become due immediately and payable without any declaration or other act on the part of the trustee or any holder.
 
After a declaration of acceleration or any automatic acceleration under clause (4) described above, the holders of a majority in principal amount of outstanding debt securities of any series may rescind this accelerated payment requirement if all existing Events of Default, except for nonpayment of the principal and interest on the debt securities of that series that has become due solely as a result of the accelerated payment requirement, have been cured or waived and if the rescission of acceleration would not conflict with any judgment or decree.  The holders of a majority in principal amount of the outstanding debt securities of any series also have the right to waive past defaults, except a default in paying principal or interest on any outstanding debt security, or in respect of a covenant or a provision that cannot be modified or amended without the consent of all holders of the debt securities of that series.
 
Holders of at least 25% in principal amount of the outstanding debt securities of a series may seek to institute a proceeding only after they have made written request, and offered reasonable indemnity, to the trustee to institute a proceeding and the trustee has failed to do so within 60 days after it received this notice.  In addition, within this 60-day period the trustee must not have received directions inconsistent with this written request by holders of a majority in principal amount of the outstanding debt securities of that series.  These limitations do not apply, however, to a suit instituted by a holder of a debt security for the enforcement of the payment of principal, interest or any premium on or after the due dates for such payment.
 
During the existence of an Event of Default, the trustee is required to exercise the rights and powers vested in it under the indenture and use the same degree of care and skill in its exercise as a prudent person would under the circumstances in the conduct of that person’s own affairs.  If an Event of Default has occurred and is continuing, the trustee is not under any obligation to exercise any of its rights or powers at the request or direction of any of the holders unless the holders have offered to the trustee reasonable security or indemnity.  Subject to certain provisions,
 
 
 
the holders of a majority in principal amount of the outstanding debt securities of any series have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust, or power conferred on the trustee.
 
The trustee will, within 45 days after any Default occurs, give notice of the Default to the holders of the debt securities of that series, unless the Default was already cured or waived.  Unless there is a default in paying principal, interest or any premium when due, the trustee can withhold giving notice to the holders if it determines in good faith that the withholding of notice is in the interest of the holders.
 
We are required to furnish to the trustee an annual statement as to compliance with all conditions and covenants under the indenture.
 
Modification and Waiver
 
The indenture may be amended or modified without the consent of any holder of debt securities in order to:
 
 
·
cure ambiguities, defects or inconsistencies;
 
 
·
provide for the assumption of our obligations in the case of a merger or consolidation;
 
 
·
make any change that would provide any additional rights or benefits to the holders of the debt securities of a series;
 
 
·
add guarantors with respect to the debt securities of any series;
 
 
·
secure the debt securities of a series;
 
 
·
establish the form or forms of debt securities of any series;
 
 
·
maintain the qualification of the indenture under the Trust Indenture Act; or
 
 
·
make any change that does not adversely affect the rights of any holder.
 
Other amendments and modifications of the indenture or the debt securities issued may be made with the consent of the holders of not less than a majority of the aggregate principal amount of the outstanding debt securities of each series affected by the amendment or modification.  However, no modification or amendment may, without the consent of the holder of each outstanding debt security affected:
 
 
·
reduce the principal amount, or extend the fixed maturity, of the debt securities, alter or waive the redemption provisions of the debt securities;
 
 
·
change the currency in which principal, any premium or interest is paid;
 
 
·
reduce the percentage in principal amount outstanding of debt securities of any series which must consent to an amendment, supplement or waiver or consent to take any action;
 
 
·
impair the right to institute suit for the enforcement of any payment on the debt securities;
 
 
·
waive a payment default with respect to the debt securities or any guarantee;
 
 
·
reduce the interest rate or extend the time for payment of interest on the debt securities;
 
 
·
adversely affect the ranking of the debt securities of any series;
 
 
·
release any guarantor from any of its obligations under its guarantee or the indenture, except in compliance with the terms of the indenture.
 
 
 
Covenants
 
Consolidation, Merger or Sale of Assets
 
We will not consolidate or combine with or merge with or into or, directly or indirectly, sell, assign, convey, lease, transfer or otherwise dispose of all or substantially all of our properties and assets to any person or persons in a single transaction or through a series of transactions, unless:
 
 
·
Patriot shall be the continuing person or, if Patriot is not the continuing person, the resulting, surviving or transferee person (the “surviving entity”) is a company organized and existing under the laws of the United States or any State or territory;
 
 
·
the surviving entity will expressly assume all of our obligations under the debt securities and the indenture, and will, if required by law to effectuate the assumption, execute a supplemental indenture which will be delivered to the trustee and will be in form and substance reasonably satisfactory to the trustee;
 
 
·
immediately after giving effect to such transaction or series of transactions on a pro forma basis, no default has occurred and is continuing; and
 
 
·
Patriot or the surviving entity will have delivered to the trustee an officers’ certificate and opinion of counsel stating that the transaction or series of transactions and a supplemental indenture, if any, complies with this covenant and that all conditions precedent in the indenture relating to the transaction or series of transactions have been satisfied.
 
If any consolidation, combination or merger or any sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of our assets occurs in accordance with the indenture, the successor corporation will succeed to, and be substituted for, and may exercise every right and power of Patriot under the indenture with the same effect as if such successor corporation had been named as Patriot.  Except for (1) any lease or (2) any sale, assignment, conveyance, lease, transfer or other disposition to subsidiaries of Patriot, we will be discharged from all obligations and covenants under the indenture and the debt securities upon any consolidation, combination or merger or any sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of our assets occurs in accordance with the indenture.
 
Satisfaction, Discharge and Covenant Defeasance
 
We may terminate our obligations under the indenture, when:
 
 
·
either:
 
 
–
all debt securities of any series issued that have been authenticated and delivered have been delivered to the trustee for cancellation; or
 
 
–
all the debt securities of any series issued that have not been delivered to the trustee for cancellation will become due and payable within one year (a “Discharge”) and we have made irrevocable arrangements satisfactory to the trustee for the giving of notice of redemption by such trustee in our name, and at our expense and we have irrevocably deposited or caused to be deposited with the trustee sufficient funds to pay and discharge the entire indebtedness on the series of debt securities to pay principal, interest and any premium;
 
 
·
we have paid or caused to be paid all other sums then due and payable under the indenture; and
 
 
·
we have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions precedent under the indenture relating to the satisfaction and discharge of the indenture have been complied with.
 
 
 
We may elect to have our obligations under the indenture discharged with respect to the outstanding debt securities of any series (“legal defeasance”).  Legal defeasance means that we will be deemed to have paid and discharged the entire indebtedness represented by the outstanding debt securities of such series under the indenture, except for:
 
 
·
the rights of holders of the debt securities to receive principal, interest and any premium when due;
 
 
·
our obligations with respect to the debt securities concerning issuing temporary debt securities, registration of transfer of debt securities, mutilated, destroyed, lost or stolen debt securities and the maintenance of an office or agency for payment for security payments held in trust;
 
 
·
the rights, powers, trusts, duties and immunities of the trustee; and
 
 
·
the defeasance provisions of the indenture.
 
In addition, we may elect to have our obligations released with respect to certain covenants in the indenture (“covenant defeasance”).  Any omission to comply with these obligations will not constitute a default or an event of default with respect to the debt securities of any series.  In the event covenant defeasance occurs, certain events, not including non-payment, bankruptcy and insolvency events, described under “Events of Default” will no longer constitute an event of default for that series.
 
In order to exercise either legal defeasance or covenant defeasance with respect to outstanding debt securities of any series:
 
 
·
we must irrevocably have deposited or caused to be deposited with the trustee as trust funds for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the holders of the debt securities of a series:
 
 
–
money in an amount;
 
 
–
U.S. Government Obligations; or
 
 
–
a combination of money and U.S. Government Obligations,
 
in each case sufficient without reinvestment, in the written opinion of an internationally recognized firm of independent public accountants to pay and discharge, and which shall be applied by the trustee to pay and discharge, all of the principal, interest and any premium at due date or maturity or if we have made irrevocable arrangements satisfactory to the trustee for the giving of notice of redemption by the trustee in our name and at our expense, the redemption date;
 
 
·
in the case of legal defeasance, we have delivered to the trustee an opinion of counsel stating that, under then applicable federal income tax law, the holders of the debt securities of that series will not recognize gain or loss for federal income tax purposes as a result of the deposit, defeasance and discharge to be effected and will be subject to the same federal income tax as would be the case if the deposit, defeasance and discharge did not occur;
 
 
·
in the case of covenant defeasance, we have delivered to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit and covenant defeasance to be effected and will be subject to the same federal income tax as would be the case if the deposit and covenant defeasance did not occur;
 
 
·
no default with respect to the outstanding debt securities of that series has occurred and is continuing at the time of such deposit after giving effect to the deposit or, in the case of legal defeasance, no default relating to bankruptcy or insolvency has occurred and is continuing at any time on or before the 91st
 
 
 
    day after the date of such deposit, it being understood that this condition is not deemed satisfied until after the 91st day;
 
 
·
the legal defeasance or covenant defeasance will not cause the trustee to have a conflicting interest within the meaning of the Trust Indenture Act, assuming all debt securities of a series were in default within the meaning of such Act;
 
 
·
the legal defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which we are a party;
 
 
·
the legal defeasance or covenant defeasance will not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless the trust is registered under such Act or exempt from registration; and
 
 
·
we have delivered to the trustee an officers’ certificate and an opinion of counsel stating that all conditions precedent with respect to the defeasance or covenant defeasance have been complied with.
 
Concerning our Relationship with the Trustee
 
Concerning the trustee and its agents, Citibank, N.A. will initially act as authenticating agent, paying agent, registrar and transfer agent for the debt securities on behalf of the trustee. We and our subsidiaries maintain ordinary banking relationships and credit facilities with Citibank, N.A. and its affiliates.  We do not currently have other significant financial relationships with Wilmington Trust Company or its affiliates.
 
 
 
Each debt security, warrant and unit will be represented either by a certificate issued in definitive form to a particular investor or by one or more global securities representing the entire issuance of securities.  Certificated securities will be issued in definitive form and global securities will be issued in registered form.  Definitive securities name you or your nominee as the owner of the security, and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable.  Global securities name a depositary or its nominee as the owner of the debt securities, warrants or units represented by these global securities.  The depositary maintains a computerized system that will reflect each investor’s beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
 
Global Securities
 
Registered Global Securities.  We may issue the registered debt securities, warrants and units in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee.  In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities.  Unless and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of the depositary or those nominees.
 
If not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered global security will be described in the prospectus supplement relating to those securities.  We anticipate that the following provisions will apply to all depositary arrangements.
 
Ownership of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the depositary or persons that may hold interests through participants.  Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face amounts of the securities beneficially owned by the participants.  Any dealers, underwriters or agents participating in the distribution of the securities will designate the accounts to be credited.  Ownership of beneficial interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons holding through participants.  The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form.  These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
 
So long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes under the applicable indenture, warrant agreement or unit agreement.  Except as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or holders of the securities under the applicable indenture, warrant agreement or unit agreement.  Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the applicable indenture, warrant agreement or unit agreement.  We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant
 
 
 
beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
 
Principal, premium, if any, and interest payments on debt securities, warrants or units represented by a registered global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security.  None of Patriot, the trustee, the warrant agents, the unit agents or any other agent of Patriot, the trustee, the warrant agents, the unit agents or any agent of an agent will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests.
 
We expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal, premium, interest or other distribution of underlying securities or other property to holders on that registered global security, will immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests in that registered global security as shown on the records of the depositary.  We also expect that payments by participants to owners of beneficial interests in a registered global security held through participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of those participants.
 
If the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Securities Exchange Act of 1934, and a successor depositary registered as a clearing agency under the Securities Exchange Act of 1934 is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the registered global security that had been held by the depositary.  Any securities issued in definitive form in exchange for a registered global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs.  It is expected that the depositary’s instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been held by the depositary.
 
 
 
We may sell the securities being offered hereby from time to time in the following manner or any manner specified in a prospectus supplement:
 
 
·
directly to purchasers;
 
·
through agents;
 
·
through underwriters; and
 
·
through dealers.

The prospectus supplement with respect to any offering of securities will set forth the terms of the offering, including:
 
 
·
the name or names of any underwriters, dealers or agents;
 
·
the purchase price of the securities and the proceeds to us from the sale;
 
·
any underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation; and
 
·
any delayed delivery arrangements.

We may directly solicit offers to purchase securities, or agents may be designated to solicit such offers. We will, in the prospectus supplement relating to such offering, name any agent that could be viewed as an underwriter under the Securities Act of 1933, as amended (the “Securities Act”) and describe any commissions that we must pay. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis. Agents, dealers and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
 
If any underwriters or agents are utilized in the sale of the securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectus supplement relating to such offering the names of the underwriters or agents and the terms of the related agreement with them.
 
If a dealer is utilized in the sale of the securities in respect of which the prospectus is delivered, we will sell such securities to the dealer, as principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale.
 
Remarketing firms, agents, underwriters and dealers may be entitled under agreements which they may enter into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
 
In order to facilitate the offering of the securities, any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities the prices of which may be used to determine payments on such securities. Specifically, any underwriters may overallot in connection with the offering, creating a short position for their own accounts. In addition, to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities in the open market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the securities above independent market levels. Any such underwriters are not required to engage in these activities and may end any of these activities at any time.
 
In compliance with the guidelines of the Financial Industry Regulatory Authority (the “FINRA”), the aggregate maximum discount, commission or agency fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer will not exceed 8% of any offering pursuant to this prospectus and any applicable prospectus supplement or pricing supplement, as the case may be.
 

 
 
The validity of the securities in respect of which this prospectus is being delivered will be passed on for us by Davis Polk & Wardwell.
 
 
 
The consolidated financial statements of Patriot Coal Corporation appearing in Patriot Coal Corporation’s Annual Report (Form 10-K) for the year ended December 31, 2008 (including the schedule appearing therein), and the effectiveness of Patriot Coal Corporation’s internal control over financial reporting as of December 31, 2008 (excluding the internal control over financial reporting of Magnum Coal Company), have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in its reports thereon, which as to the report on the effectiveness of Patriot Coal Corporation’s internal control over financial reporting contains an explanatory paragraph describing the above referenced exclusion of Magnum Coal Company from the scope of such firm's audit of internal control over financial reporting, included therein, and incorporated herein by reference which, as to the year 2006, are based in part on the report of PricewaterhouseCoopers LLP, independent registered public accounting firm. Such financial statements have been incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
 
The audited financial statements of KE Ventures, LLC for the year ended December 31, 2006, not separately presented in this registration statement, had been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, whose report thereon appears in the Annual Report on Form 10-K of Patriot Coal Corporation for the year ended December 31, 2008 which is incorporated into this registration statement.  Such financial statements, to the extent they have been included in the financial statements of Patriot Coal Corporation for the year ended December 31, 2006, have been included in reliance on the report of such independent registered public accounting firm given on the authority of said firm as experts in auditing and accounting.
 
The estimates of Magnum’s proven and probable coal reserves referred to in this prospectus to the extent described in this prospectus, have been prepared by Weir International, Inc.
 

 
PART II
 
 
INFORMATION NOT REQUIRED IN PROSPECTUS
 
Item 14.  Other Expenses of Issuance and Distribution
 
The following table sets forth the costs and expenses payable by the Registrant in connection with the sale of the securities being registered hereby.  All amounts shown are estimates except the registration fee.
 
   
Amount
to be Paid
  
Registration fee
  
$
 11,790  
Printing  
$
 100,000  
Legal fees and expenses (including Blue Sky fees)
  
$
 200,000  
Rating Agency fees  
$
 100,000  
Accounting fees and expenses
  
$
 100,000  
Miscellaneous
  
$
 100,000  
TOTAL
   $ 611,790  

Item 15.  Indemnification of Directors and Officers
 
Section 145 of the Delaware General Corporations Law (“Delaware Law”) permits a corporation, under specified circumstances, to indemnify its directors, officers, employees and agents against expenses (including attorneys’ fees) and other liabilities actually and reasonably incurred by them as a result of any suit (other than a suit brought by or in the right of the corporation) brought against them in their capacity as such, if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if they had no reasonable cause to believe their conduct was unlawful. Section 145 of the Delaware Law also provides that directors, officers, employees and agents may also be indemnified against expenses (including attorneys’ fees) incurred by them in connection with a suit brought by or in the right of the corporation if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made, unless otherwise determined by the court, if such person was adjudged liable to the corporation.
 
The Delaware Law also provides that the indemnification described above will not be deemed exclusive of other indemnification that may be granted by a corporation pursuant to its by-laws, disinterested directors’ vote, stockholders’ vote, agreement or otherwise.
 
The Delaware Law also provides corporations with the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation in a similar capacity for another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him or her in any such capacity, or arising out of his or her status, whether or not the corporation would have the power to indemnify him or her against such liability as described above.
 
As permitted by sections 102 and 145 of Delaware Law, the Registrant’s certificate of incorporation eliminates the liability of a director to Patriot and its stockholders for monetary damages for breach of a director’s fiduciary duty except for liability under section 174 of Delaware Law, for any breach of the director’s duty of loyalty to Patriot or its stockholders, for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law or for any transaction from which the director derived an improper personal benefit.
 
The Registrant’s certificate of incorporation and by-laws provide that to the fullest extent permitted by Delaware Law, the Registrant shall indemnify any person (and such person’s heirs, executors or administrators) who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (brought in the right of the Registrant or otherwise), whether civil, criminal, administrative or
 
 
 
investigative, and whether formal or informal, including appeals, by reason of the fact that such person is or was a director or officer of the Registrant or, while a director or officer of the Registrant, is or was serving at the request of the Registrant as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, limited liability company or other enterprise, for and against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person or such heirs, executors or administrators in connection with such action, suit or proceeding, including appeals. The Registrant is required to indemnify a person described in the preceding sentence in connection with any action, suit or proceeding (or part thereof) commenced by such person only if the commencement of such action, suit or proceeding (or part thereof) by such person was authorized by the Board of Directors of the Registrant. The Registrant may indemnify any person (and such person’s heirs, executors or administrators) who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (brought in the right of the Registrant or otherwise), whether civil, criminal, administrative or investigative, and whether formal or informal, including appeals, by reason of the fact that such person is or was an employee or agent of the Registrant or is or was serving at the request of the Registrant as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, limited liability company or other enterprise, for and against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person or such heirs, executors or administrators in connection with such action, suit or proceeding, including appeals. The right to indemnification includes the prompt payment of expenses incurred by any applicable person in defending any action, suit or proceeding in advance of the final disposition of such action, suit or proceeding, including appeals, upon presentation of appropriate documentation.
 
The above discussion of the Delaware Law and the Registrant’s certificate of incorporation and by-laws is not intended to be exhaustive and is qualified in its entirety by such statutes and the Registrant’s certificate of incorporation and by-laws.
 
The Registrant maintains liability insurance for the benefit of its directors and officers.
 
The Registrant has entered into indemnification agreements with each of its directors and certain of its officers pursuant to which the Registrant has agreed to indemnify those persons against any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that the indemnified person is or was or has agreed to serve at the request of the Registrant as a director, officer, employee or agent of the Registrant, or while serving as a director or officer of the Registrant, is or was serving or has agreed to serve at the request of the Registrant as a director, officer, employee or agent (which, for purposes of the indemnification agreements, includes a trustee, partner, manager or a position of similar capacity) of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity. The indemnification provided by these agreements is from and against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the indemnified person or on his or her behalf in connection with the action, suit or proceeding and any appeal therefrom, but shall only be provided if the indemnified person acted in good faith and in a manner the indemnified person reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal action, suit or proceeding, had no reasonable cause to believe the indemnified person’s conduct was unlawful. The Registrant’s certificate of incorporation and the indemnification agreements require the advancement of expenses incurred by officers and directors in relation to any action, suit or proceeding.
 
 
 
Item 16.  Exhibits and Financial Statement Schedules
 
 
(a)
The following exhibits are filed as part of this Registration Statement:
 
 
Exhibit No.
  
Document
   
1.1
  
Form of Equity Underwriting Agreement
         
   
1.2
  
Form of Debt Underwriting Agreement
         
   
4.1
  
Amended and Restated Certificate of Incorporation of Patriot Coal Corporation (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K, filed on October 25, 2007)
         
   
4.2
  
Form of Indenture between the Registrant and Wilmington Trust Company
         
    4.3   Form of Note (included in Exhibit 4.2)
         
   
4.4
  
Form of Warrant Agreement*
         
   
4.5
  
Form of Purchase Contract*
         
   
4.6
  
Form of Unit Agreement*
         
   
5.1
  
Opinion of Davis Polk & Wardwell
         
   
12.1
  
Statement regarding computation of Ratios of Earnings to Fixed Charges
         
   
23.1
  
Consent of Ernst & Young LLP
         
   
23.2
  
Consent of PricewaterhouseCoopers LLP
         
   
23.3
  
Consent of Weir International, Inc.
         
   
23.4
  
Consent of Davis Polk & Wardwell (included in Exhibit 5.1)
         
   
24.1
  
Power of Attorney†
         
   
25.1
  
Statement of Eligibility on Form T-1 of Wilmington Trust Company
____________________
* To be filed by amendment on Form 8-K.
†  Previously filed.
 
Item 17.  Undertakings
 
 
(a)
The undersigned Registrant hereby undertakes:
 
(1)       To file, during any period in which offers or sales are being made of securities registered hereby, a post-effective amendment to this registration statement:
 
(i)         To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
 
(ii)        To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement.  Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
 
 
 
represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
 
(iii)       To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
 
provided, however, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
 
(2)           That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(3)       To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
 
(4)       That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
 
(A)        Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
 
(B)        Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.  Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
 
(5)       That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
 
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
 
 
 
(i)        Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
 
(ii)        Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
 
(iii)        The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
 
(iv)        Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
 
 
(b)
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
 
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.  In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
 
SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of St. Louis, State of Missouri, on April 17, 2009.
 
 
Patriot Coal Corporation
  
       
 
By:
/s/ RICHARD M. WHITING  
    Richard M. Whiting  
    Chief Executive Officer and Director
       
 
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
 
Signature
  
Title
  
Date
         
/s/ RICHARD M. WHITING
  
Chief Executive Officer and
  
April 17, 2009
Richard M. Whiting
  
Director (principal executive officer)
    
         
*
    Senior Vice President and Chief Financial Officer    
Mark N. Schroeder
  
(principal financial and accounting officer)
  
April 17, 2009
         
*
  
Chairman of the Board and Director
  
April 17, 2009
 Irl F. Engelhardt        
         
*
  
Director
  
April 17, 2009
J. Joe Adorjan        
         
*
  
Director
  
April 17, 2009
B. R. Brown        
         
*
  
Director
  
April 17, 2009
John F. Erhard        
         
*
  
Director
  
April 17, 2009
Michael P. Johnson        
         
*
  
Director
  
April 17, 2009
John E. Lushefski        
 
 
         
*
  
Director
  
April 17, 2009
Michael M. Scharf        
         
*
  
Director
  
April 17, 2009
Robb E. Turner        
         
*
  
Director
  
April 17, 2009
Robert O. Viets        
 
 
*By:
/s/ RICHARD M. WHITING
  Richard M. Whiting,
  as Attorney-in-Fact
   
 

 

 
EXHIBIT INDEX
 
 
Exhibit No.
  
Document
   
1.1
  
Form of Equity Underwriting Agreement
         
   
1.2
  
Form of Debt Underwriting Agreement
         
   
4.1
  
Amended and Restated Certificate of Incorporation of Patriot Coal Corporation (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K, filed on October 25, 2007)
         
   
4.2
  
Form of Indenture between the Registrant and Wilmington Trust Company
         
    4.3   Form of Note (included in Exhibit 4.2)
         
   
4.4
  
Form of Warrant Agreement*
         
   
4.5
  
Form of Purchase Contract*
         
   
4.6
  
Form of Unit Agreement*
         
   
5.1
  
Opinion of Davis Polk & Wardwell
         
   
12.1
  
Statement regarding computation of Ratios of Earnings to Fixed Charges
         
   
23.1
  
Consent of Ernst & Young LLP
         
   
23.2
  
Consent of PricewaterhouseCoopers LLP
         
   
23.3
  
Consent of Weir International, Inc.
         
   
23.4
  
Consent of Davis Polk & Wardwell (included in Exhibit 5.1)
         
   
24.1
  
Power of Attorney†
         
   
25.1
  
Statement of Eligibility on Form T-1 of Wilmington Trust Company
____________________
* To be filed by amendment on Form 8-K.
†  Previously filed.
II-8 
 

 GRAPHIC 2 logo.jpg GRAPHIC begin 644 logo.jpg M_]C_X``02D9)1@`!``$`8`!@``#__@`?3$5!1"!496-H;F]L;V=I97,@26YC M+B!6,2XP,0#_VP"$``("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@(" M`@("`@,#`@(#`@("`P0#`P,#!`0$`@,$!`0$!`,$!`,!`@("`@("`@("`@," M`@(#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,# M`P,#`P,#`__$`:(```$%`0$!`0$!```````````!`@,$!08'"`D*"P$``P$! M`0$!`0$!`0````````$"`P0%!@<("0H+$``"`0,#`@0#!04$!````7T!`@,` M!!$%$B$Q008346$'(G$4,H&1H0@C0K'!%5+1\"0S8G*""0H6%Q@9&B4F)R@I M*C0U-CH.$A8:' MB(F*DI.4E9:7F)F:HJ.DI::GJ*FJLK.TM;:WN+FZPL/$Q<;'R,G*TM/4U=;7 MV-G:X>+CY.7FY^CIZO'R\_3U]O?X^?H1``(!`@0$`P0'!00$``$"=P`!`@,1 M!`4A,08205$'87$3(C*!"!1"D:&QP0DC,U+P%6)RT0H6)#3A)?$7&!D:)BH*#A(6& MAXB)BI*3E)66EYB9FJ*CI*6FIZBIJK*SM+6VM[BYNL+#Q,7&Q\C)RM+3U-76 MU]C9VN+CY.7FY^CIZO+S]/7V]_CY^O_``!$(`#X`J0,!$0`"$0$#$0'_V@`, M`P$``A$#$0`_`/W\H`*`"@`H`*`"@`H`*`"@`H`*`,^_U;2])C\W4]2T_38@ M-WFW]Y;V<84=3ON)$7'OFIE.%-7E*-->;4?SL=&'PF*Q`\.N.\R_W+A'-:BZ-X*M2CKVE5C336NZ9Y!K7[>'[ M,&B%U_X6&=59/X=$T'7;_>>>$9;!%/UW`>]<,N(LGC=1Q2G;^2,Y?E$^NP?@ M-XGXJU^'?J7EB,5A:37JO:R?X7\CR[5_^"F?[/M@#_9VF?$#62,X%OH-G9`X M'4'4-5AX/TS[5SOBC+UI"G7E_P!PG!?^3-'T.&^C=Q[-+ZSB,LP7^+$U*EO_ M``50E_5WL_P#!57X9PDBP^%_CJYZ[3=7_`(?L@>O)$5W<$?2LI<4X>/P8 M2J_65./YR/2A]&GB*+2K<19=3\J=/$SMOWA3.:F_X*Q>&HVQ#\&]<9.QD\5Z M;$W_`'R-,8=0>]9_ZU0Z8&5O^OM/J:2^C?CJ?Q<44+]HX2IYWWK+JG\K-VN$ M/_!6?P@I'VOX.^)8D&-QMO$^D2L,]<++9Q#N._>KCQ13ZX*:2[5(?\`X:_T> MLQI)^RXCP\K=)86I#M;:I+OTN=7I?_!5[X*W#JFJ>`OB1I*_Q2QP:!J44?/) MQ!K"2,,9/$?:MX<2X33FH5:?RB_RD>%BO`SB/#QO0S/`5[.UKUZ;\OBI-:OI M?SV/7_#G_!1_]E'7I$AG\;:IX9D*O"&LV.O^'-8A-QI>KZ=+YMG>0B1XFDA<@'`DC=2"`*]2G4A4A&I M2DI4Y:Q:V:\CX3&8/%9=B:N#QE&6&Q.'?+.G+24&TG9I=TT_1G159S!0`$@# M)X`Y)/``%`'YRZ]\7/V]?#/B+Q#<:/\`!;X:?$WP2VMZNWAM_#?B,0:K'H`O MICI,=X_]JKYFH"P\D2E;9@9-V!TKQJU7.L-4FOJ=.K!2?*E+DDHW]VZDT[VM M]G<_2,ORWPUS#"X95.(,9E.+]E35:52C*I2=;E7M7!PI3BH<_,XIU4TK:F8O M[:P>;XVDOWV3UX_X M=5_Z3^I[%'PXX9QTK9;XAY;;HJWLHRU\OK$6NWPD8_X*4>'[7C6?@'\8]'88 MRLVF6Y`!."<\15/X&3\D>[C-_GRH[J?A/ MX&96TLV\3(8B4=X0Q^`I-VW]VE"K-+[WYE&35O\`@IQXP`2#1[3P?%)D^9#; M^!M',:G.`1J-Y>7"X]E+=*GGXOK;0C0CT7+2IV^;E-_@=M/!_18R-\U3&U,Y MG'[+GFN(3?\`W!IT*;_\"2,^;]F3]O?QIN7Q;\:QI-O(!YD`\>:VBD-U4V7A MS38K?`';>!V%3_9'$M=-5LP]G?HZTFK/RI0A^9TP\4_H]Y$E_8W`CQ52'PR> M585M6V:JXRM.HK]^7S,T_P#!.?7[B07/Q!_:%TE>/](S!>7DJCJP^UZWK<0. M,G[T0%:TN" M%PL%YNG1H.WRF6E_8C_93\-$OXN_:,6?9P\46N>$-)&1PP54:ZDSD$<$_2O< MPGA?F-6WL\#F-9O^3"NG_P"DT_GN?"9K],W%4U+V6&X?R[EZU<9.M)?)5:2Z M?R]RZOP9_P""O_!/<87_`(4OIZ@=V^%&AL!@^HNR>]7_`,0?SF&V M!R__`,&+_P"5'*_I'8Z6_%F?_.O5_P#F@:?BQ_P3GU+Y+KX8^'K!6!!:?X5O M;A0>,%]-+,OU'2N>IX29U!/_`(2,'4_PU::_]*43HH_2%Q;E'_C,LXIM7MSR MK3MUV3G_`,.5)-$_X)E^+"R"P\"Z1+(,[G?QMX48%L'*O++%`C#\J\?$>&.: MT;N?#V3R(S1GPY\1-)UQ1\I(86.JQR2$+V7>">AZU\YB^"_JE_ MK&7XW`M=90FDO_`H6_$^QR[QQS^KR*&8Y7FL-+*RA.5K=:55:OK[E_R/T9_9 M[\#:?\./A'X/\':3+<3Z=HFG_8K*YN@BW-U;0R/'%>'+N>]^$/QT\?^"!YLLMKITNLW-[:P&0E@I9+F%G&6Y+[B:^\AQ[*M!4\ MVR++LS227,Z:I3MUUM-?X5/Z\CG MY_$S#W<<-EV*:V<733^2C4H_DOO*K?&_]M6T8K=?`#P3*X_C33[H9`Z$`>(< MD=>>*K^QO#.5K<1XFGY2BEOZX87]M^*5+1U^K36,M\A5_:"_; M/3`@^`/A2W/!#1Z;J/'7^YXB`S^/'XUI'(_#..KXGKM+HDD__45F%3/O%)^[ M_JS23_OQ,]/U(CXE_X*#ZNAC1?# MVCA^-T&F>&H74$]GFBN&7KVYXJU5\)L,T_9XW$N/3_:;?.TX+].YE*AXP5ER MJ>#PB?6V%3\_^7=1K\R,_#S]O'7C_IOQ/ETM'!WK8ZE;6"QACG'_`!+M/CV# MWW`8X%6N(O#3"Z4.&*N(Y=G4A%KY^UK/\C.7#'BEB;.OQ32PB?2G4J1M?M[& MA&_R9"_[)?[1VO-N\2_&_5GW#$B_V_K$HPV=PV+J,2D<]U[U:\1.&\(K8'@Z MA"WP\_U>-O\`P&G-KY&;\,^)\4[X_C7$/NH0Q4E_Y/6@G\U\BS;_`/!/>YO6 M5O$'Q,O[Q\Y<8$K$D?,0UU+<')/UJ)>+6-IKEP61X+#=KSF[?*$:1I)?@>E0\(>%*5E4GCL2[_:KQC\DJ=.+U];G9 M6'[!7P/ML+-'JMZV#D2ZI='/'7:EP`.O8#K7FU/$?BZIMF4*2Z*GAZ,;?^2M M_B>I2\,.#L/K_9-2=NM3$8A_^WI+[M3IH?V)?V?[12TGA?S%0%F:XN[AE``Y M9B\V`,/^%4X?E!'H4^`^$8-1AD-%MZ)-U9/Y7F94G[-?[(U MI*;:XM?!$-PIVF&X\1:;'.K9P5,+[>V@OPLC MW*?A?@)4_:4N!YSI;\T<#B91[WYE%KSW-M/V-OV;]3@6>T\'Z;/;R8J?J#6\.-.*$DX9[B9+H^:,E_P"DNYYM;@;AJA.5*MP]0P]2.CA* M%2E*-^\7)-?<7:]_P`$V/A5>JW]B>+O$NC2 M8.S==6M[&"1QN2Z@)_$-%KVT,)BHK=2IRIOY.G-)7_P`+]#S* M_A?P_-6H/%X1K;EG&:^:G3;_`/)D_,\4NO\`@FEXGT?7M(U+P_X^TG5M/L=6 MT^[N[6[LGT_49;.WNHIKB*">UG9#*T:N!E4'/->L_%%5\)B:&(RGV=:K2J0A M.E6C*$9RC**E*$XQ=DVFTFSSH^&4L+BL/7H9HYT*-2$I0JTIPERJ2:_/K]Y^J/?31=% MY&A0(*`/BW]OKQE+X1_9R\26]I<-;7OBK5-$\,V[12O!-Y5S>"_O3$\9##%I MI\H.",AR#P37S_$U9TS6JT3V/W#Z/.20SCQ,RN=6 MFIT,HH8G&R3BI1YH4_94N9/3^)6BU?9JZU2/R/\`V=/@9XI^/MSX@AM?&>IZ M!!H:V2).UQ-<+<7-WYTC1N9M1@$*1P0[MV6W&0`=.?D\IRB>:RQ*CBY86.%Y M+R;E*[GTLY+IK==S^M?%KQ-RWPO61PAPQ3SS$YQ+$?NH55Z5!8UXES@YWC*<)4[2M:24VM=XM=#TO"S MC;"^)F39CF-?@_\`L&GA,2L,HUXTJU+%)TU.4J4G0I74+\E2+BUS6UULOT>_ M9B_:*U?P;^ROKGC[XJZO>ZW;>$KC4;3PW<:E@I=W#F2\FDU! M;F%)'9V2&!W8E("1]1E.8RPN02QF,J2J*A4J0IN3O.:3M3@GO)\WNIZNVKV/ MY>\4?#["9WXVT.$>#\'2P,LRPN$Q&-A1@H8?!SG[2>*Q+IP7+2BL.J=64(J, M95)144I5%?\`*/Q3XF^)?Q1U'Q[\5]4O]1E1-3L[SQ!=07MS;66GR:Y>&TTG M3+&!90%@B51%'"@^2*WW-URWQE26)Q,L3C*CFWSQ=5J4U&#J/EIP23222222 MMHN9[G]E93EW"?"%'AO@S"T:%&K5H5J>!HSIPE6KQP=)5<57J/ENY/F4ZLW\ M4ZB2\OTK_P"";7C;5=3\,?$CP.VIRR7UG=C5]):_EFNH[>75M.:V$Q5WW>4M MWI\)9%9<^8<'7C=D?'?$>`X4R_@6IEJG0K3> M(JUL+4IT*.&I5U(F1>%V!RG%XOA^.;5,VQ-2A3H4'AZ$XQI4G5G5;J4 MIIQC[L;)+6:U/IGXF?!_QG^R[\!?B#%KGBNYU/4OB;K?A/PU:7$,UU:21V%A M<7&LWD"1R7T\G/V,EG1D&)0ISFO5QF73R3*L;&6+]M5S"K1IQMSQY(*\I).4 MFTW:]TT?D?!_'.#\8?%#A:KA.''DN5\'8+-,=6IUI4:WML3B84L)0E^ZIPC: M"J.45)-J2YE:Q\]?`+X%^-_CS_;QTGQI/H,>A2V<'F7MQ=SI=374<\TB*QU. MW6$1111DDEMWGJ`.*\[*\HJYFL0X8KZO'#Z4FKLVD:G=)-I@:YE@C@OHH[^<6\S^29$_>[BO)5>-W/ MF6!EEF(CAY8OV]Z?M.:$ZD5#6W+*\W9]5KL>QX:\99=XCY+B\WAPG5R&EA\3 M+#*GC*=&:KI0C-U*4XTX*XK235WK;[*T+XH>/M$_8%\;?\)=JFK7-Y MJU];>&?"5[JEQ=-JJZ-K^IQ0^4MWFHXW%XJ"]/OIM/T]+)I&6* M^\0/;,O]H7AME-Q<2S^9'$%98D"I\W!BLPQV:X>AB,?EF%>*S+-*U*-6JIPBI3IX-33= M*GS_`+NC"GRSJMQ=23E+3WF#_@FWXIO?"LVK6_C'.NC3Y;NU@N=/2WT^[N$B M:9(%WW)N8H92-BS.-WSAS'C*UZTN#G&C*2QT772(_#1NYY=)U6QO+Z.QNXY+!G:(7<8D:2&X1 M%D22-2&VEE;PLJQE?`8O#2I2E"$ZL:=2ES/DDI2Y6N5Z)INZE%)G[MXH\%$^"Z'`E?'8R^&P;Q"Q&%C&KB,572J5^6=!R4>>JY6E)OE5KZ'YM?# M+PYXG^)GC;1/!6F^(=2L)]7DN!]MDN;^XCM(;>UFNGF>".Y1I,^4J!0Z_-*O M-?*X##3QV)P^%I594I5[VDYU&HQ4>9R:4KM)=NY_5G'&?9-P+POFO%&,RJGB MZ.5PIR6'IPHTZE:=6K"C"G"B^-=:\ M83ZS:Z?!=PQ6R+=VOD27T0MWNG:?4YU8):/<*$"9W2J&LKX3JY%5QE?#5*N(G6P] M1>QH5%5E2C&E1IR4JDXP7-S6Y5)-.Y^I5?3'\WA0`4`?CQ_P56\>)9?\*E\` M12@/(=>\87\._:5C00:-I3LF>0SMK&TXZQ-CO7R'%,N9X*A>RBYU6OER1_%R MMYH_JSZ,T89;5XGSRI:+E'#8&FW9:-RKUDGTVH/3>Y\W?L[_`+(OC3XU>`H/ M&NA>-KKPW#?W=[$+&VM9BK6]E.;2*YDGCU*W#O),EQA-AVB+.><#S,H[]+['W_'OT@L#POQ#6R)\,+.W@Z-&(9=5ANO$_CJ\U*T\Q'NTAM8+2XN(U M`&R34;F_NGB7:,%EAD8+PN#@CT:7"%.,OWV/E*GU4(6FUVYY.35]K[KH?#XS MZ568QPDZ&2<(4<#72M2E7Q2G1IM[OV%"E39VM;"24R M+*PN)I`PO"5\[,L30J8G#8+#X?VF68!JG"A&3C[6;?+*:E'7F3T@]4VY-[W/ MK>`,KS?*,@XAXPS7/5EO'_%T7C,1FE:C0KK`X:"]I0PTZ%:+IQHQC%3KTX\C MA'DIQ<725_TSF^`7P.\`_LY^/+S4_#FMS^!9-"?QAK6AZ?-=-X@6YT@0ZDZQ M7K7PDN;R&>SBA#"X$.R%MIV$Y^IJY=EN#RW$T7A91PLE[:K3C)NHY12E;FO> M\;65G;>VC/YYP?B'X@<1^(629U#B+#RXCH.65Y?C*F&I4\#2H8ASI3E]5]G[ M-0KJ-\,\#/.\Z6?9SDF84,34Q4<+0PD.7$1>'K0I4 M:"2A2CSQLY.5$H_ M5L)2P=-O2SQ%7VM2VG\N'@GKM+S*_P#P3"\,9\+^)O&,L2YU36+B&VE'>VTJ M".RC[#_E[NM0'?[GUK7A?#^RPF*K6LZ]5)=/=IQ2_-O8X_I*<2_VSQ3D>64Y MWHY-@)U)15K*MC*MWMU]E1I[ZV:[W.._X*J>/5@U7X4^`(I4_P!'LM;\6WL8 M<`JUS+#I-@9%[?+;WI7/]X^M[VZ?'93D>1;74MG!EZO\+?BAXF\'76JV^J:[X*\3OI5<( MK12[QE60[@.?(KX3ZE7KX=33GAYN/.DWS25K2M)MN]]GZ'ZMD7'&"XAX:P&8 M?5'@<+FV#526%E*,)4H5H/GI\U/E2=F[3ARW34E9M6_0_P#;Q\9C1O@O\!/! M12WM-4\1RWOC'7XK=$MUGGTC2K;28;AH4`6-)+W4M2VQJ`B?9PJ```#ZCB2< MOJV6X9Z-I5)I)))QII+16M[S=DD?S9]'J.%P7%/'.>TERX>G4JX+"RG.4Y^S MK8RI6=YSNYR5.C1YIRDY2YM7*[9B_LR>#-=U']D3]H3Q!X?L9[C6]?T'7XM. M2V1WN;NPT>.RANH;=$!,CO;KKB*B#+G*X)-999A)K(,UE2B_:8MSBDMW&FDM M+=U>UCT_$CC'!8CQM\.UC*L8Y=PU[.K4YK2\H+QK\ MVS?M!8`'QLIK4<#C\-BJB?LJ?,G97<>:/*IV[>A_*7!W@WQ%B,\P-7B'# M4\KRC!UZ=7$.=:C.I6A3ESNE1A2G._M>7DE*7*HQDWJ[)_F3^R'\,?$'Q3^* M>A:Q'93R>'O#6JP:G?:D\3BVO-6BD\ZPTZ"7:%FG^T[+B8*3Y<,+%\&1-WSF M19;+$XVA4Y6\/A)*I.;5E*2UC%=W*6KMLEKN?TAXS>*&$R+@W,LFPM:+SC/L M/4P.&HPDN>E1K1]G7Q$DM80IT7*,&[WNX:@XQ\I5&E_Z2C^A M_I)<6^VX/RS(Z51)YIF-. M?B[^S!\(?C9KVG^)?'WA:QUC6M,TB+0K>^N?MAD72X+R^OX+0+#>PHJ)=ZE> MR9V;B9SEB`H7DKX#!XF:GB,/&I.*Y4VVK*[=M&NK?WGT&4\5<19%AYX3)\UJ MX##5*CK2A3C3:=2480WN[7N>A_#/X9>&/A/X<@\*^$K1+#1K0 MXL[*%#'#:Q%Y)?*B4N[;?-FE^N[/ M*QV.QF98NMC\?B)8G&8AIU*L[K:9::SI>HZ/?( MSV.J6-UI]Y&DLL#/:WD+V\Z+-;R))$6BD8;HW1AG((/-5**E%QDKQDFFMM'O MMM\C"C5J8>K2K49G^( M-`\'Z=IFK:5<"ZL+R".Z::UE`9=\)N;^51($=@)&1F4G<"&`(XJ669?AZD*M M'"0IU*;O&5Y73[I-V/IL;QOQ=F&%KX'&Y[7K83$Q<*M)QI04X/5Q;A3C))]4 MFKJZ=TVCZGU/PYHNL>';[PIJ5A#=:!J6E7&BWNG2@B"XTV[MVM9[9PA4['A= ME)4@\Y!!YKLG&,XRA-7C)--=&GNCYK#UZV#K4<1AJCH5\-.,ZAZ[HER;K2]1LQ>_:+.0QR0L8VFU" M13N@EEC.]6R'/&:XZ669?AZD:M'"1I5(.\9)RNGMU?F?28[C;BS,L)6R_'9W M6Q."Q$>2I1E"BHRC=2M[M-->\D]&M4=]\7OV:?A/\;M0T;5OB!X:M-:U+0K" M33+"ZNC>,T-E+,;EX%C@O88P#.S.6*%CG&<`"M,1@<)BI1EB*$:CBK)MM65[ M]&NIQY3Q/G^0TJM#)\SJ9?2K3YYQIQIOFG913;G"3V5K7MY'7?"OX1^$/@[H M1\-^"K&/3-&61Y(+&!&2"V\V62XF$8>21R9+B:21F9V)9SVK:C1I8:G&C0IJ MC2A=J*O9-N[W[LX,QS+,,WQE3'YGBIXS&58PC*K/E4G&G%1@K148I1BK*R." M^+'[*_P<^,WB.#Q7XY\*V6JZY!IL.DB^N#>M(;&VEFFMX`D5]%&B))<3'A,D MR')-<]?+\%B9^TKX:-6:22;&>#RG-ZN`PKG*HZ<(TF MG.?+S2]^$GKRQZ]$>G?#?X;^&_A9X;MO"GA2U6QT6R"QV5G&I2*T@7.R"(,[ MML!=VR[LQ+DDFNFG3IT*<*-*"ITZ:M&*V2W]>IX^-QN+S#%U\=CJ\L1B\3+G MJU)63G*R2=HI15DDDHI)+H?)7QN_9H_9*\*1^*?B]\3]!T;2(;W5)]7U74)Q MJ=S>:EKFIW#W+QV=M%J/F7VI7=VSLL$$?)+':J*Q5X'AFEF^-CAL)ET<1BJ[ M'\MCS\1UL%EV"IQI4X1A1:4(Q484X M1]DY2?*DDM797;TNOD;XE_'+]F7XHVVD:[XD_9]^)OC30_!VG'P]I_C.\M;> MRM(M*6[DG$+)#J)M[=!=3RMEI-^7`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`LW_"7X#V*ZUJD4GC?2M/NQ+X/32+Z74M1UIWN96D MB=;?[)*EY*\(-S+<+LC4`@!-I\WB'A/B'-N),365!2P=:<%2KNI!0I48QBK6 M;YU*+YGRJ+N];ZGH\/<4Y#D_#>&HJK*GBZ,*CJT(TIJ52M*4G?F4>1QDG%7E M)$G3Q&/J1=_94:4>6G3E0@KMK1 MSE&"UNCA4CO(?A7\1+KQ/\/OB'J7C7QKJ>F>(Y?B!?:._P#8-EIT.H1ZG+=3 MWUQ%YR_;FN[J269<(YE@!)1:]'FIO.LMA@\UP5+`8"G5H/`PJQ]M.JXZL\Q*:R7,I8K*<;4Q^.J4:RQDZ4O8PIJ?,WS.%[U7-N4[I2] MT^B;KXM#_AWQ%X7^U$:E>>.;+P#Y>\F0V%A>2Z_*K*,$(=,M;=<'(Q*/6OG: M.4(I?M5UJD%CX9U*\CBNKN]GGD0 M740*3'RC:IE0!^ZKS.*>$N(']>T[Q+HVFZ[I,DC MZ?JEG;7UL98F@F6*[@CN(TG@?YH9U250Z'E6R#R*_*ZM*6'JU:,[<]&DHM-?>14ITZD'2JTX5:BV5PK;EDM=,TRWD4YSE98K)70Y[JP/O7;4S;-*L/9U< MRQ52G_++$57&W:W-MY'%2RG*J$U4HY9A:-2.THX>DFO-/ET?FCU2/PUH4.DS M:$NF6G]E7$;QW%D\2R0W"N,/]H60'SBWXQLXRBG%Z.+2::?1IZ->31Y/\`\,V_!H7GVZ+P/H$%QYGFB2+2-)1@^<9MR>S>9XOV>W+]8JVMVMS=>O<\Y9-E$9^TCE>$C-.ZDL/2 M3OW^$[*[^%?@*]L;;3KOPYIUS;6CL\'VBV@N9(V=51]LEQ$[(I5$!5=H(4#& M`,<=/$8B@Y.C7JT7+67)4G#F?1RY9*[7F=E3#8>HHJKAZ514U:*G3A+E3Z14 MHM+;I8UHO`WA2'3'T?\`L.PDL)(7MY8;BWBG$L4@PR2>6R=M+VO;0 MJ_\`"D?ACT_X1/2?_`&R'_MM3^O8Y?\`,9B%;_I_5_\`DR?J.!_Z`L/_`."* M7_R!Z-I6E6.BV,&FZ="+>SME*Q1`D[0Q+')/).37,VVVV]7K\^K^?XG2DDDD - -K):)+2WHC1I#"@#_V3\_ ` end EX-1.1 3 dp13023_ex0101.htm EXHIBIT 1.1
Exhibit 1.1
 
Patriot Coal Corporation
 
Equity Underwriting Agreement Standard Provisions
 

From time to time, Patriot Coal Corporation, a Delaware corporation (the “Company”), may enter into one or more underwriting agreements in the Form of Annex A hereto that incorporate by reference these Standard Provisions (collectively with these Standard Provisions, an “Underwriting Agreement”) and that provide for the sale of its Common Stock, par value $0.01 per share, (the “Underwritten Securities”) to the several Underwriters (the “Underwriters”) named in the Underwriting Agreement, for whom the Underwriter(s) named therein shall act as representative (the “Representative”). The Company also proposes to grant to the Underwriters an option to purchase up to the number of additional shares of Common Stock set forth in Schedule I to the Underwriting Agreement to cover over-allotments, if any (the “Option Securities”; the Option Securities, together with the Underwritten Securities, being hereinafter called the “Securities”).  The Underwriting Agreement, including these Standard Provisions, is sometimes referred to herein as this “Agreement”.

1. Representations and Warranties.  The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.
 
(a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission a registration statement (the file number of which will be set forth in Schedule I to the Underwriting Agreement) on Form S-3, including a related Base Prospectus, for registration under the Act of the offering and sale of the Securities.  Such Registration Statement, including any amendments thereto filed prior to the Execution Time, have become effective. The Company may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to you.  The Company will file with the Commission a final prospectus supplement relating to the Securities in accordance with Rule 424(b).  As filed, such final prospectus supplement shall contain all information required by the Act and the rules thereunder, and, except to the extent the Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein.  The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).  The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time.
 
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case
 
 
 
may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference.  Certain terms used herein are defined in Section 20 hereof.
 
(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein) and on any date on which Option Securities are purchased, if such date is not the Closing Date (a “settlement date”), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the Exchange Act and the respective rules thereunder; on each Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date and any settlement date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representative specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
 
(c) The Disclosure Package and the price to the public, the number of Underwritten Securities and the number of Option Securities to be included on the cover page of the Final Prospectus, when taken together as a whole, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.  The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
 
(d) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities, the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
 
 
 
(e) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified.  The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
 
(f) The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus will not be, an “investment company” as defined in the Investment Company Act.
 
(g) The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
 
(h) The Company has not paid or agreed to pay to any person any compensation for soliciting another to purchase any securities of the Company (except as contemplated in this Agreement).
 
(i) The Company has not taken, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
 
(j) Each of the Company and its subsidiaries has been duly incorporated or organized and is validly existing as a corporation, limited liability company or other entity in good standing under the laws of the jurisdiction in which it is formed with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that requires such qualification, except for such jurisdictions where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect.
 
(k) All the outstanding shares of capital stock or other equity or ownership interests of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Final Prospectus, all outstanding shares of capital stock or other equity or ownership interests of the Significant Subsidiaries are owned by the Company either directly or through a subsidiary that is, except as otherwise set forth in the Disclosure Package and the Final Prospectus, wholly-owned by the Company, free and clear of any security interest, claim, lien or encumbrance, except in each case as set forth in the Disclosure Package and the Final Prospectus.
 
 
(l) The Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Final Prospectus; the capital stock of the Company conforms to the description thereof contained in the Disclosure Package and the Final Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued  and are fully paid and nonassessable; the Securities have been duly authorized and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities or the shares of Common Stock issuable upon conversion thereof; and, except as set forth in the Disclosure Package and the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding, other than issuances pursuant to employee benefit plans or upon exercise of outstanding options as described in the Disclosure Package and the Final Prospectus.
 
(m) The statements in the Preliminary Prospectus and the Final Prospectus listed in the Underwriting Agreement fairly summarize the matters therein described in all material respects.
 
(n) This Agreement has been duly authorized, executed and delivered by the Company.
 
(o) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as may be required under the blue sky laws of any jurisdiction in which the Securities are offered and sold.
 
(p) None of the execution and delivery of this Agreement, the issuance and sale of the Securities, or the consummation of any other of the transactions herein, or the fulfillment of the terms hereof will conflict with, result in a breach or violation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to (i) the charter or by-laws or comparable constituting documents of the Company or its subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its subsidiaries is a party or bound or to which its or their property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries, or any of its or their properties, except in the case of clause (ii) and (iii) for any such conflict, breach, violation or imposition as would not result in a Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
 
 
 
(q) The consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included or incorporated by reference in the Disclosure Package and the Final Prospectus present fairly in all material respects the financial condition, results of operations and cash flows of the Company, as the case may be, as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of Regulation S-X and have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods involved (except as otherwise noted therein); and the selected financial data set forth in the captions listed in the Underwriting Agreement in the Preliminary Prospectus and the Final Prospectus fairly present, on the basis stated in the Preliminary Prospectus and the Final Prospectus, the information included or incorporated by reference therein.
 
(r) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its subsidiaries or its property is pending or, to the knowledge of the Company, threatened that (i) could reasonably be expected to have a Material Adverse Effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
 
(s) Each of the Company and its subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently conducted except where the failure to so own or lease properties would not have a Material Adverse Effect and except as set forth or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
 
(t) None of the Company or its subsidiaries is in violation or default of (i) any provision of its charter or bylaws or comparable constituting documents; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject; or (iii) any statute, law, rule, regulation, judgment, order, decree or requirement applicable to the Company or its subsidiaries, of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, except, with respect to clauses (ii) and (iii), as would not result in a Material Adverse Effect.
 
(u) Ernst & Young LLP and PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and/or its consolidated subsidiaries and delivered its reports with respect to the audited consolidated financial statements and schedules included, incorporated by reference and/or reflected in the Disclosure Package and the Final Prospectus, are independent public accountants with respect to the Company within the meaning of the Act.
 
 
 
(v) There are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale of the Securities.
 
(w) The Company (i) has timely filed all applicable tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect and except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)) and all such tax returns are correct and complete in all material respects, and (ii) has timely paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such tax or assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect and except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
 
(x) No labor problem or dispute with the employees of the Company or its subsidiaries exists or to the Company’s knowledge is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except as would not have a Material Adverse Effect, and except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
 
(y) Each of the Company and its subsidiaries is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company and its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect in all material respects; the Company and its subsidiaries are in compliance in all material respects with the terms of such policies and instruments; there are no material claims by the Company or its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; none of the Company or its subsidiaries has been refused any insurance coverage sought or applied for; and none of the Company or its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
 
(z) No subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company,
 
 
except as described in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
 
(aa) Except as set forth in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the Company and its subsidiaries have such permits, licenses, franchises, certificates, consents, orders and other approvals or authorizations of any governmental or regulatory authority (“Permits”), including, without limitation, any permits or approvals required by the United States Environmental Protection Agency, the United States Office of Surface Mining Reclamation and Enforcement and corresponding state agencies, as are necessary under applicable law to own their properties and to conduct their respective businesses in the manner described in the Disclosure Package and the Final Prospectus, except to the extent that the failure to have such Permits would not reasonably be expected to have a Material Adverse Effect. Except as described in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), (i) the Company and their respective subsidiaries have performed all their material obligations with respect to the Permits, (ii) to the best knowledge of the Company, no event has occurred that allows, or after notice or lapse of time would reasonably be expected to result in, the revocation or termination thereof or in any other material impairment of the rights of the holder of any such Permit, and (iii) none of the Company or any of its subsidiaries has received any written notice of proceedings or potential proceedings relating to the revocation or termination of the Permits, except to the extent that any such failure to perform, revocation, termination, impairment or proceedings would not have a Material Adverse Effect.
 
(bb) The Company and its consolidated subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.  The Company and its consolidated subsidiaries’ internal controls over financial reporting were effective as of the December 31st prior to the date of the Underwriting Agreement and are effective as of the date hereof.  The Company is not aware of any material weakness in its or its consolidated subsidiaries’ internal control over financial reporting.
 
(cc) The Company and its subsidiaries maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures are effective.
 
(dd) The Company and its subsidiaries (i) are in compliance with any and all applicable statutes, laws, rules, regulations, judgments, orders, decrees or requirements relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”); (ii) have
 
 
received and are in compliance with all Permits required of them under applicable Environmental Laws to conduct their respective businesses; (iii) have not received notice of any actual or potential liability under any Environmental Law and have not been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended; and (iv) are not aware of the presence, spill, discharge, disposal or release of or exposure to hazardous or toxic substances, materials or wastes relating to their properties or operations that would require investigation or remediation pursuant to Environmental Laws, except, for each of clause (i), (ii), (iii) and (iv) above, as would not, individually or in the aggregate, have a Material Adverse Effect, or as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
 
(ee) The subsidiaries listed on Schedule 5 to the Underwriting Agreement attached hereto are the only “significant subsidiaries” of the Company as defined in Rule 1-02 of Regulation S-X (the “Significant Subsidiaries”).
 
(ff) None of the following events has occurred or exists:  (i) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the regulations and published interpretations thereunder with respect to a Plan, determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other U.S. federal or state governmental agency or any foreign regulatory agency with respect to the employment or compensation of employees by any of the Company or its subsidiaries that could have a Material Adverse Effect; (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Company or its subsidiaries that could have a Material Adverse Effect.  None of the following events has occurred or is reasonably likely to occur:  (i) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company and its subsidiaries compared to the amount of such contributions made in the most recently completed fiscal year of the Company and its subsidiaries; (ii) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) for the current fiscal year of the Company and its subsidiaries compared to the amount of such obligations in the most recently completed fiscal year of the Company and its subsidiaries; (iii) any event or condition giving rise to a liability under Title IV of ERISA that could have a Material Adverse Effect; or (iv) the filing of a claim by one or more employees or former employees of the Company or its subsidiaries, related to their employment that could have a Material Adverse Effect.  For purposes of this paragraph, the term “Plan” means a plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the Company or its subsidiaries may have any liability.
 
(gg) None of the Company or its subsidiaries, or to the knowledge of the Company, any director, officer, agent, employee or Affiliate of the Company or its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a
 
 
violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company and its subsidiaries and, to the knowledge of the Company, its Affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
 
(hh) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company and its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
 
(ii) None of the Company or its subsidiaries, or, to the knowledge of the Company, any director, officer, agent, employee or Affiliate of the Company or any of its subsidiaries is currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
 
(jj) There is and has been no failure on the part of the Company and any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
 
(kk) The qualitative and quantitative data regarding proven and probable coal reserves of the Company included or incorporated by reference in the Disclosure Package and the Final Prospectus (x) were derived in accordance with the procedures described in the Disclosure Package and the Final Prospectus and all applicable industry standards, including Industry Guide 7 under the Exchange Act, and (y) have been reviewed by the professionals set forth in the Underwriting Agreement.
 
(ll) Prior to the date hereof, the Company has furnished to the Representatives letters, each substantially in the form of Exhibit A to the Underwriting Agreement, duly
 
 
executed by each officer and director of the Company listed on Exhibit B to the Underwriting Agreement and addressed to the Representatives.
 
Any certificate signed by any officer of the Company and delivered to the Representative or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
 
2. Purchase and Sale.  (a)  Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I to the Underwriting Agreement the number of Underwritten Securities set forth opposite such Underwriter’s name in Schedule II to the Underwriting Agreement.
 
(b)  Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to the number of Option Securities set forth in Schedule I to the Underwriting Agreement at the same purchase price per share as the Underwriters shall pay for the Underwritten Securities.  Said option may be exercised only to cover over-allotments in the sale of the Underwritten Securities by the Underwriters.  Said option may be exercised in whole or in part at any time on or before the 30th day after the date of the Final Prospectus upon written or telegraphic notice by the Representatives to the Company setting forth the number of Option Securities as to which the several Underwriters are exercising the option and the settlement date.  The number of Option Securities to be purchased by each Underwriter shall be the same percentage of the total number of Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional shares.
 
3. Delivery and Payment.  Delivery of and payment for the Underwritten Securities and the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised on or before the third Business Day immediately preceding the Closing Date) shall be made on the date and at the time specified in Schedule I to the Underwriting Agreement or at such time on such later date not more than three Business Days after the foregoing date as the Representative shall designate, which date and time may be postponed by agreement between the Representative and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”).  Delivery of the Securities shall be made to the Representative for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representative of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company.  Delivery of the Underwritten Securities and the Option shall be made through the facilities of The Depository Trust Company unless the Representative shall otherwise instruct.
 
If the option provided for in Section 2(b) hereof is exercised after the third Business Day immediately preceding the Closing Date, the Company will deliver the Option Securities (at the expense of the Company) to the Representatives on the date specified by the Representatives
 
 
 
(which shall be within three Business Days after exercise of said option) for the respective accounts of the several Underwriters, against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company.  If settlement for the Option Securities occurs after the Closing Date, the Company will deliver to the Representatives on the settlement date for the Option Securities, and the obligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered on the Closing Date pursuant to Section 6 hereof.
 
4. Offering by Underwriters.  It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus.
 
5. Agreements.  The Company agrees with the several Underwriters that:
 
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object.  The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representative with the Commission pursuant to Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.  The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose.  The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
 
(b) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any
 
 
untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
 
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representative of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
 
(d) As soon as practicable, the Company will make generally available to its security holders and to the Representative an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
 
(e) The Company will furnish to the Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request.  The Company will pay the expenses of printing or other production of all documents relating to the offering.
 
(f) The Company will arrange, if necessary, for the qualification of the Securities for sale by the Representative under the laws of such jurisdictions as the Representative may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other
 
 
 
than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
 
(g) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representative, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III to the Underwriting Agreement and any electronic road show.  Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.”  The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
 
(h) The Company will not for a period of 90 days following the Execution Time, without the prior written consent of the Representatives, directly or indirectly, (i) offer, sell, contract to sell, pledge or otherwise dispose of, (ii) enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any Affiliate of the Company or any person in privity with the Company or any Affiliate of the Company of, (iii) file (or participate in the filing of) a registration statement with the Commission in respect of, or (iv) establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect of, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for, shares of capital stock of the Company, or publicly announce an intention to effect any such transaction; provided, however, that the Company may issue and sell Common Stock or securities convertible into or exchangeable for Common Stock pursuant to any employee stock option or benefit plan, stock ownership plan or dividend reinvestment plan of the Company described in the Disclosure Package and the Final Prospectus and in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time as described in the Disclosure Package and the Final Prospectus.
 
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
 
(j) The Company agrees to pay the costs and expenses relating to the following matters:  (i) the preparation, printing or reproduction and filing with the
 
 
 
Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange, if any; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the NASD, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
 
6. Conditions to the Obligations of the Underwriters.  The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
 
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
 
(b) The Company shall have requested and caused Davis Polk & Wardwell, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
 
 
 
(c) The Company shall have requested and caused Joseph W. Bean, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
 
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
 
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that to the best of their knowledge:
 
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
 
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
 
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
 
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
 
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and
 
 
 
the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
 
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
 
(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
 
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative.  Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
 
The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.
 
7. Reimbursement of Underwriters’ Expenses.  If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through the Representative on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
 
8. Indemnification and Contribution.  (a)  The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each
 
 
 
Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other U.S. federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus, any Issuer Free Writing Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representative specifically for inclusion therein.  This indemnity agreement will be in addition to any liability which the Company may otherwise have.
 
(b)           Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, each of its directors, each of its officers, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representative specifically for inclusion in the documents referred to in the foregoing indemnity.  This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have.  The Company acknowledges that the statements set forth in the Underwriting Agreement constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
 
(c)           Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above.  The indemnifying party shall be entitled to appoint counsel
 
 
 
of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party.  Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party.  An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
 
(d)           In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively “Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder.  If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations.  Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of
 
 
 
the Final Prospectus.  Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission.  The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above.  Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).
 
9. Default by an Underwriter.  If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Securities set forth opposite their names in Schedule II to the Underwriting Agreement bears to the aggregate amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule II to the Underwriting Agreement, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company.  In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representative shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected.  Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.
 
10. Termination.  This Agreement shall be subject to termination in the absolute discretion of the Representative, by notice given to the Company prior to delivery of, and payment for, the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange  shall have been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by U.S. federal or New York State
 
 
authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representative, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement thereto).
 
11. Representations and Indemnities to Survive.  The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities.  The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
 
12. Notices.  All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representative, will be mailed, delivered or telefaxed to (a) the Representative at the address and fax details set forth in the Underwriting Agreement and (b) Underwriter’s counsel at the address and fax details set forth in the Underwriting Agreement; or, if sent to the Company, will be mailed, delivered or telefaxed to Patriot Coal Corporation (fax no.: (314) 275-3656) and confirmed to it at Patriot Coal Corporation, 12312 Olive Boulevard, Suite 400, St. Louis, Missouri 63141, Attention: Joseph W. Bean, with a copy to Davis Polk & Wardwell, Attention: Sarah E. Beshar, Esq. (fax no.: (212) 450-3800) and confirmed to Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017.
 
13. Successors.  This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
 
14. No fiduciary duty. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and any Affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principals and not as agents or fiduciaries of the Company and (c) the Company’s engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other matters).  The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
 
15. Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
 
 
 
16. Applicable Law.  This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
 
17. Waiver of Jury Trial.  The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
 
18. Counterparts.  This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
 
19. Headings.  The section headings used herein are for convenience only and shall not affect the construction hereof.
 
20. Definitions.  The terms that follow, when used in this Agreement, shall have the meanings indicated.
 
“Act” shall mean the U.S. Securities Act of 1933, as amended and the rules and regulations of the Commission promulgated thereunder.
 
“Affiliate” shall have the meaning specified in Rule 501(b) of Regulation D.
 
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Execution Time.
 
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
 
“Commission” shall mean the Securities and Exchange Commission.
 
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule III to the Underwriting Agreement and (iv) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
 
“Effective Date” shall mean each date and time that the Registration Statement, and any post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or becomes effective.
 
“Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
 
“Execution Time” shall mean the date and time that the Underwriting Agreement is executed and delivered by the parties hereto.
 
 
 
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
 
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
 
“Investment Company Act” shall mean the U.S. Investment Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated thereunder.
 
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
 
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
 
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective prior to the Closing Date, shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be.
 
“Regulation D” shall mean Regulation D under the Act.
 
“Regulation S-X” shall mean Regulation S-X under the Act.
 
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B” , “Rule 433” and “Rule 462” refer to such rules under the Act.
 
“Rule 462(b) Registration Statement” shall mean a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the registration statement referred to in Section 1(a) hereof.
 

 
ANNEX A
 
[FORM OF UNDERWRITING AGREEMENT]
 

 
Underwriting Agreement
 
[__________], 20[__]
 
To the Representative named in
Schedule I hereto of the several
Underwriters named in
Schedule II hereto
 
Ladies and Gentlemen:
 
Patriot Coal Corporation, a corporation organized under the laws of Delaware (the “Company”), proposes to sell (such sale, the “Offering”) to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you (the “Representative”) are acting as representative, the number of shares of common stock, $0.01 par value (“Common Stock”), of the Company set forth in Schedule I hereto (the “Underwritten Securities”).  The Company also proposes to grant to the Underwriters an option to purchase up to the number of additional shares of Common Stock set forth in Schedule I hereto to cover over allotments, if any (the “Option Securities”; the Option Securities, together with the Underwritten Securities, being hereinafter called the “Securities”).
 
To the extent there are no additional Underwriters listed on Schedule I other than you, the term Representative as used herein shall mean you, as Underwriter, and the terms Representative and Underwriter shall mean either the singular or plural as the context requires.
 
Subject to the terms and conditions and in reliance upon the representations and warranties set forth herein and in the Company’s Equity Underwriting Agreement Standard Provisions filed as Exhibit 1.1 to the Company’s Form S-3 dated April 17, 2009 (the “Standard Provisions”), the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I to the Underwriting Agreement the number of Underwritten Securities set forth opposite such Underwriter’s name in Schedule II hereto.
 
Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth and in the Standard Provisions, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to the number of Option Securities set forth in Schedule I to the Underwriting Agreement at the same purchase price per share as the Underwriters shall pay for the Underwritten Securities.  Said option may be exercised only to cover over-allotments in the sale of the Underwritten Securities by the Underwriters.  Said option may be exercised in whole or in part at any time on or before the 30th
 
 
 
day after the date of the Final Prospectus upon written or telegraphic notice by the Representatives to the Company setting forth the number of Option Securities as to which the several Underwriters are exercising the option and the settlement date.  The number of Option Securities to be purchased by each Underwriter shall be the same percentage of the total number of Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional shares.
 
Schedule III hereto contains the Free Writing Prospectuses, if any, that shall be included in the Disclosure Package and to which the parties hereto have provided their consent for use pursuant to Section 5(g) of the Standard Provisions.
 
Schedule IV hereto contains a list of the Company’s Significant Subsidiaries.
 
[LIST OF PROVISIONS AND DETAILS SPECIFIC TO THE OFFERING INCLUDING DETAILS WITH RESPECT TO LANGUAGE REQUIRED BY THE STANDARD PROVISIONS]
 
All provisions contained in the Standard Provisions are incorporated by reference herein in their entirety, except as explicitly amended by this Underwriting Agreement (including if any term defined in such Standard Provisions is otherwise defined herein), and shall be deemed to be a part of this Underwriting Agreement to the same extent as if such provisions had been set forth in full herein.
 
This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
 
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the  enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
 

 
   
Very truly yours,
     
   
Patriot Coal Corporation
     
 
By:
  
   
Name:
   
Title:
 
 
 
The foregoing Underwriting Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
 
[Representative]
 
By:[Representative]
 
By:
 
Name:
 
Title:
 
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Underwriting Agreement.
 

 
SCHEDULE I
 
Underwriting Agreement dated
 
Registration Statement No.
 
Representative(s):
 
Title, Purchase Price and Description of Securities:
 
Title:
 
Number of Underwritten Securities to be sold by the Company:
 
Number of Option Securities to be sold by the Company:
 
Price per Share to Public (include accrued dividends, if any):
 
Price per Share to the Underwriters – total:
 
Other provisions:
 
Closing Date, Time and Location:                                     , 20   at 10:00 a.m. at [name and address of Underwriters’ counsel]
 
Type of Offering:
 
Modification of items to be covered by the letter from
Ernst & Young LLP delivered pursuant to
Section 6(f) at the Execution Time:
 
 
SCHEDULE II
 
Underwriters
Number of Underwritten Securities to
be Purchased
 
$
   
   
   
   
   
   
   
   
   
   
   
   
Total                                                                                              
$
 
 

 
SCHEDULE III
 
Schedule of Free Writing Prospectuses included in the Disclosure Package

[list all FWPs included in the Disclosure Package]
 
 

 
SCHEDULE IV

List of Significant Subsidiaries

[list all Significant Subsidiaries]
 
 
 
Exhibit A

[Insert Lock-up Agreement]
 
 

 
Exhibit B

[Insert each officer and director of the Company subject to the lock-up agreement in Exhibit A]
 
 
 
ANNEX B
 
[FORM OF OPINION FOR OUTSIDE COUNSEL OF THE COMPANY]
 
[date]
[Name[s] of managing underwriter[s]]
as Representative of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
[c/o][[name of lead manager]]
[address of lead manager]
 
Ladies and Gentlemen:
 
We have acted as special counsel for Patriot Coal Corporation, a Delaware corporation (the “Company”), in connection with the Underwriting Agreement dated _______, 20__ (the “Underwriting Agreement”) with you and the other several Underwriters named in Schedule II thereto under which you and such other Underwriters have severally agreed to purchase from the Company an aggregate of [number of shares] shares (the “Shares”) of its Common Stock, par value $0.01 per share.  [The Shares include [number of shares to be purchased under the over-allotment option] shares of Common Stock, par value $0.01 per share of the Company to be purchased pursuant to the over-allotment option provided for by the Underwriting Agreement].
 
We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
 
We have also reviewed the Company’s registration statement on Form S-3 (File No. 333-157645) [and Amendments Nos. _____ thereto] (including the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company and have participated in the preparation of the preliminary prospectus supplement dated _______, 20__ (the “Preliminary Prospectus Supplement”) relating to the Shares, [list free writing prospectuses, if any, that form part of the Disclosure Package to be covered by the Opinion] and the prospectus supplement dated _________, 20__ relating to the Shares (the “Prospectus Supplement”).  In addition, we have [examined evidence] [been advised by the staff of the Commission] that the registration statement as so amended was declared effective under the Act on [insert date of effectiveness].  The registration statement as amended at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement”, and the related prospectus (including the Incorporated Documents) dated ____________, 20__ relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.”  The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Shares (or in the form first made available by the Company to the Underwriters to meet requests
 
 
 
of purchasers of the Shares under Rule 173 under the Act), is hereinafter referred to as the “Prospectus”.
 
We have assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”), except for required EDGAR formatting changes, to physical copies of the documents submitted for our examination.
 
Capitalized terms used but not otherwise defined herein are used as defined in the Underwriting Agreement.
 
Based upon the foregoing, we are of the opinion that:
 
1.           The Shares to be sold by the Company have been duly authorized and, when issued and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares is not subject to any statutory preemptive rights.
 
2.           The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
 
3.           The Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
 
4.           [Except as disclosed in the Prospectus, t][T]he execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene (i) any provision of the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Underwriting Agreement, or the General Corporation Law of the State of Delaware provided that we express no opinion as to federal or state securities laws, (ii) the certificate of incorporation or by-laws of the Company, or (iii) any agreement that is an exhibit to the Registration Statement.
 
5.           No consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Underwriting Agreement, or the General Corporation Law of the State of Delaware is required for the execution, delivery and performance by the Company of its obligations under the Underwriting Agreement, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion.
 
We have considered the statements included in the Prospectus under the caption “Description of Capital Stock” insofar as they summarize provisions of the certificate of incorporation and by-laws of the Company.  In our opinion, such statements fairly summarize these provisions in all material respects.
 
 
 
We are members of the Bar of the State of New York, and the foregoing opinion is limited to the laws of the State of New York, the federal laws of the United States of America and the General Corporation Law of the State of Delaware, except that we express no opinion as to any law, rule or regulation that is applicable to the Company, the Underwriting Agreement, the Shares or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Underwriting Agreement or any of its affiliates due to the specific assets or business of such party or such affiliate.
 
This opinion is rendered solely to you and the other several Underwriters in connection with the Underwriting Agreement.  This opinion may not be relied upon by you for any other purpose or relied upon by any other person (including any person acquiring Shares from the several Underwriters) or furnished to any other person without our prior written consent.
 
 
Very truly yours,
   



 
[FORM OF 10B-5 STATEMENT OF OUTSIDE COUNSEL FOR THE COMPANY]
 
Form of 10b-5 Statement of Outside Counsel for the Company

[date]
 
[Name[s] of managing underwriter[s]]
as Representative of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
[c/o][[name of lead manager]]
[address of lead manager]
 
Ladies and Gentlemen:
 
We have acted as special counsel for Patriot Coal Corporation, a Delaware corporation (the “Company”), in connection with the Underwriting Agreement dated _______, 20__ (the “Underwriting Agreement”) with you and the other several Underwriters named in Schedule II thereto under which you and such other Underwriters have severally agreed to purchase from the Company an aggregate of [number of shares] shares (the “Shares”) of its Common Stock, par value $0.01 per share.  [The Shares include [number of shares to be purchased under the over-allotment option] shares of Common Stock, par value $0.01 per share of the Company to be purchased pursuant to the over-allotment option provided for by the Underwriting Agreement].
 
We also have reviewed the Company’s registration statement on Form S-3 (File No. 333-157645) [and Amendments Nos. _____ thereto] (including the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company and have participated in the preparation of the preliminary prospectus supplement dated _______, 20__ (the “Preliminary Prospectus Supplement”) relating to the Shares, [list free writing prospectuses, if any, that form part of the Disclosure Package to be covered by the opinion] and the prospectus supplement dated _________, 20__ relating to the Shares (the “Prospectus Supplement”).  The registration statement as amended at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement”, and the related prospectus (including the Incorporated Documents) dated ____________, 20__ relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.”  The Basic Prospectus, as supplemented by the Preliminary Prospectus Supplement, together with the [free writing prospectus[es] set forth in Schedule III to the Underwriting Agreement for the Shares] [information] are hereinafter called the “Disclosure Package”.  The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Shares (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Shares under Rule 173 under the Act), is hereinafter referred to as the “Prospectus”.
 
 
 
We have assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”), except for required EDGAR formatting changes, to physical copies of the documents submitted for our examination.
 
The primary purpose of our professional engagement was not to establish or confirm factual matters or financial, accounting or quantitative information (including information with respect to proven and probable coal reserves).  Furthermore, many determinations involved in the preparation of the Registration Statement, the Disclosure Package and the Prospectus are of a wholly or partially non-legal character or relate to legal matters outside the scope of our opinion separately delivered to you today in respect of certain matters under the laws of the State of New York, the federal laws of the United States of America and the General Corporation Law of the State of Delaware.  As a result, we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus, and we have not ourselves checked the accuracy, completeness or fairness of, or otherwise verified, the information furnished in such documents (except to the extent expressly set forth in our opinion letter separately delivered to you today as to statements included in the Prospectus under the caption “Description of Capital Stock”).  However, in the course of our acting as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus, we have generally reviewed and discussed with your representatives and your counsel and with certain officers and employees of, and independent public accountants for, the Company the information furnished, whether or not subject to our check and verification.  We have also reviewed and relied upon certain corporate records and documents, letters from counsel and accountants and oral and written statements of officers and other representatives of the Company and others as to the existence and consequence of certain factual and other matters.
 
Capitalized terms used but not otherwise defined herein are used as defined in the Underwriting Agreement.
 
On the basis of the information gained in the course of the performance of the services rendered above, but without independent check or verification except as stated above:
 
(i) the Registration Statement and the Prospectus appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations of the Commission thereunder; and
 
(ii) nothing has come to our attention that causes us to believe that, insofar as relevant to the offering of the Shares:
 
(a) the Registration Statement or the prospectus included therein at the time the Registration Statement became effective and on the date of the Underwriting Agreement, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading,
 
(b) at the Execution Time, the Disclosure Package contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or
 
 
 
(c) the Prospectus as of the date of the Underwriting Agreement or as of the date hereof contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
 
In providing this letter to you and the other several Underwriters, we have not been called to pass upon, and we express no view regarding, the financial statements or financial schedules or other financial or accounting data or statements regarding proven and probable coal reserves included in the Registration Statement, the Disclosure Package or the Prospectus.  In addition, we express no view as to the conveyance of the Disclosure Package or the information contained therein to investors.
 
This letter is delivered solely to you and the other several Underwriters in connection with the Underwriting Agreement.  This letter may not be relied upon by you for any other purpose or relied upon by any other person (including any person acquiring Shares from the several Underwriters) or furnished to any other person without our prior written consent.
 
 
Very truly yours,
   


 
ANNEX C
 
[FORM OF OPINION OF COMPANY COUNSEL]
 
[date]
 
[Name[s] of managing underwriter[s]]
as Representative of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
[c/o][[name of lead manager]]
[address of lead manager]
 
Ladies and Gentlemen:
 
I, Joseph W. Bean, am Senior Vice President and General Counsel of Patriot Coal Corporation, a Delaware corporation (the “Company”). This opinion is delivered in connection with the Underwriting Agreement dated _______, 20__ (the “Underwriting Agreement”) with you and the other several Underwriters named in Schedule II thereto under which you and such other Underwriters have severally agreed to purchase from the Company an aggregate of [number of shares] shares (the “Shares”) of its Common Stock, par value $0.01 per share.  [The Shares include [number of shares to be purchased under the over-allotment option] shares of Common Stock, par value $0.01 per share of the Company to be purchased pursuant to the over-allotment option provided for by the Underwriting Agreement].
 
I have examined originals or copies, certified or otherwise identified to my satisfaction, of such documents, corporate records, certificates of public officials and other instruments as I have deemed necessary or advisable for the purpose of rendering this opinion.
 
Capitalized terms used but not otherwise defined herein are used as defined in the Underwriting Agreement.
 
Based upon the foregoing, I am of the opinion that:
 
1. Each of the Company and the Significant Subsidiaries listed on Schedule IV to the Underwriting Agreement (individually, a “Significant Subsidiary” and collectively, the “Significant Subsidiaries”) has been duly incorporated or organized and is validly existing as a corporation, limited liability company or other entity in good standing under the laws of the jurisdiction in which it is formed, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except for such jurisdictions where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect.
 
2. All the outstanding shares of capital stock or other equity or ownership interests of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Final
 
 
 
Prospectus, all outstanding shares of capital stock or other equity or ownership interests of the Significant Subsidiaries are owned by the Company either directly or through a subsidiary controlled by the Company, free and clear of any perfected security interest and, to my knowledge, any other security interest, claim, lien or encumbrance that is material to the Company and its subsidiaries taken as a whole.
 
3. The Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Final Prospectus and the capital stock of the Company conforms to the description thereof contained in the Disclosure Package and the Final Prospectus in all material respects; the Shares conform to the description thereof contained in the Disclosure Package and the Final Prospectus in all material respects; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable; the holders of outstanding shares of capital stock of the Company are not entitled to any preemptive or other rights to subscribe for the Shares; and, except as set forth in the Disclosure Package and the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding, other than issuances pursuant to employee benefit plans or upon the exercise of outstanding options.
 
4. There is no pending or, to my knowledge, threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Significant Subsidiaries or its or their property that (a) is within the scope of Item l03 of Regulation S-K under the Securities Act and (b) is not described in the Disclosure Package and the Final Prospectus; and the statements in the Preliminary Prospectus and the Final Prospectus under the headings listed in the Underwriting Agreement fairly summarize the matters therein described in all material respects.
 
5. Neither the execution and delivery of the Underwriting Agreement, the issuance and sale of the Shares, nor the consummation of any other of the transactions therein contemplated, nor the fulfillment of the terms thereof, will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or asset of the Company or of any of its Significant Subsidiaries pursuant to any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of the Significant Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company, any of the Significant Subsidiaries or any of their respective properties (including any mining or environmental law, rule or regulation) or the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its Significant Subsidiaries is a party or bound or to which its or their property is subject.
 
The foregoing opinion is limited to the federal laws of the United States of America and the General Corporation Law of the State of Delaware.
 
This opinion is rendered solely to you in connection with the Underwriting Agreement. This opinion may not be relied upon by you for any other purpose or relied upon by any other person (including any person acquiring Shares from the several Underwriters) or furnished to any other person without my prior written consent.
 
 
 


 

 

 EX-1.2 4 dp13023_ex0102.htm EXHIBIT 1.2
 
Exhibit 1.2
 

Debt Underwriting Agreement Standard Provisions


From time to time, Patriot Coal Corporation, a Delaware corporation (the “Company”), may enter into one or more underwriting agreements in the Form of Annex A hereto that incorporate by reference these Standard Provisions (collectively with these Standard Provisions, an “Underwriting Agreement”) and that provide for the sale of the securities designated in such Underwriting Agreement (the “Securities”) to the several Underwriters named therein (the “Underwriters”), for whom the Underwriter(s) named therein shall act as representative (the “Representative”). The Underwriting Agreement, including these Standard Provisions, is sometimes referred to herein as this “Agreement”. The Securities will be issued pursuant to an Indenture dated as of _______, 20__ (the “Indenture”) between the Company and Wilmington Trust Company, as trustee (the “Trustee”).

1. Representations and Warranties. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.

(a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission a registration statement (the file number of which will be set forth in Schedule I to the Underwriting Agreement) on Form S-3, including a related Base Prospectus, for registration under the Act of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, have become effective. The Company may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to you. The Company will file with the Commission a final prospectus supplement relating to the Securities in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all information required by the Act and the rules thereunder, and, except to the extent the Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time.

Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the

 

(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; on each Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on the Closing Date the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representative specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.

(c) The Disclosure Package, as of the Execution Time, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.

(d) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities, the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.

 
(e) Each Issuer Free Writing Prospectus and any final term sheet prepared and filed pursuant to Section 5(b) hereto does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.

(f) The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus will not be, an “investment company” as defined in the Investment Company Act.

(g) The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act.

(h) The Company has not paid or agreed to pay to any person any compensation for soliciting another to purchase any securities of the Company (except as contemplated in this Agreement).

(i) The Company has not taken, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

(j) Each of the Company and its subsidiaries has been duly incorporated or organized and is validly existing as a corporation, limited liability company or other entity in good standing under the laws of the jurisdiction in which it is formed with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that requires such qualification, except for such jurisdictions where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect.

(k) The statements in the Preliminary Prospectus and the Final Prospectus listed in the Underwriting Agreement fairly summarize the matters therein described in all material respects.

(l) This Agreement has been duly authorized, executed and delivered by the Company; the Indenture has been duly authorized and, assuming due authorization, execution and delivery thereof by the Trustee, when executed and delivered by the Company, will constitute a legal, valid, binding instrument enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to



(m) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture, except such as may be required under the blue sky laws of any jurisdiction in which the Securities are offered and sold.

(n) None of the execution and delivery of the Indenture or this Agreement, the issuance and sale of the Securities, or the consummation of any other of the transactions herein, or the fulfillment of the terms hereof will conflict with, result in a breach or violation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to (i) the charter or by-laws or comparable constituting documents of the Company or its subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its subsidiaries is a party or bound or to which its or their property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries, or any of its or their properties, except in the case of clause (ii) and (iii) for any such conflict, breach, violation or imposition as would not result in a Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).

(o) The consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included or incorporated by reference in the Disclosure Package and the Final Prospectus present fairly in all material respects the financial condition, results of operations and cash flows of the Company, as the case may be, as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of Regulation S-X and have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods involved (except as otherwise noted therein); and the selected financial data set forth in the captions listed in the Underwriting Agreement in the Preliminary Prospectus and the Final Prospectus fairly present, on the basis stated in the Preliminary Prospectus and the Final Prospectus, the information included or incorporated by reference therein.


(p) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its subsidiaries or its property is pending or, to the knowledge of the Company, threatened that (i) could reasonably be expected to have a Material Adverse Effect on the performance of this Agreement or the Indenture or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).

(q) Each of the Company and its subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently conducted except where the failure to so own or lease properties would not have a Material Adverse Effect and except as set forth or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).

(r) None of the Company or its subsidiaries is in violation or default of (i) any provision of its charter or bylaws or comparable constituting documents; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject; or (iii) any statute, law, rule, regulation, judgment, order, decree or requirement applicable to the Company or its subsidiaries, of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, except, with respect to clauses (ii) and (iii), as would not result in a Material Adverse Effect.

(s) Ernst & Young LLP and PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and/or its consolidated subsidiaries and delivered its reports with respect to the audited consolidated financial statements and schedules included, incorporated by reference and/or reflected in the Disclosure Package and the Final Prospectus, are independent public accountants with respect to the Company within the meaning of the Act.

(t) There are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale of the Securities.

(u) The Company (i) has timely filed all applicable tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect and except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)) and all such tax returns are correct and complete in all material respects, and (ii) has timely paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such tax or assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect and except


as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).

(v) No labor problem or dispute with the employees of the Company or its subsidiaries exists or to the Company’s knowledge is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except as would not have a Material Adverse Effect, and except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).

(w) Each of the Company and its subsidiaries is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company and its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect in all material respects; the Company and its subsidiaries are in compliance in all material respects with the terms of such policies and instruments; there are no material claims by the Company or its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; none of the Company or its subsidiaries has been refused any insurance coverage sought or applied for; and none of the Company or its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).

(x) No subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company, except as described in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).

(y) Except as set forth in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the Company and its subsidiaries have such permits, licenses, franchises, certificates, consents, orders and other approvals or authorizations of any governmental or regulatory authority (“Permits”), including, without limitation, any permits or approvals required by the United States Environmental Protection Agency, the United States Office of Surface Mining Reclamation and Enforcement and corresponding state agencies, as are necessary under applicable law to own their properties and to conduct their respective businesses in the manner described in the Disclosure Package and the Final Prospectus, except to the extent that the failure to have such Permits would not reasonably be expected to have a Material Adverse Effect. Except as described in or contemplated in the Disclosure Package and the Final



(z) The Company and its consolidated subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and its consolidated subsidiaries’ internal controls over financial reporting were effective as of the December 31st prior to the date of the Underwriting Agreement and are effective as of the date hereof. The Company is not aware of any material weakness in its or its consolidated subsidiaries’ internal control over financial reporting.

(aa) The Company and its subsidiaries maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures are effective.

(bb) The Company and its subsidiaries (i) are in compliance with any and all applicable statutes, laws, rules, regulations, judgments, orders, decrees or requirements relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”); (ii) have received and are in compliance with all Permits required of them under applicable Environmental Laws to conduct their respective businesses; (iii) have not received notice of any actual or potential liability under any Environmental Law and have not been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended; and (iv) are not aware of the presence, spill, discharge, disposal or release of or exposure to hazardous or toxic substances, materials or wastes relating to their properties or operations that would require investigation or remediation pursuant to Environmental Laws, except, for each of clause (i), (ii), (iii) and (iv) above, as would not, individually or in the aggregate, have a Material Adverse Effect, or as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).



(dd) None of the following events has occurred or exists: (i) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the regulations and published interpretations thereunder with respect to a Plan, determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other U.S. federal or state governmental agency or any foreign regulatory agency with respect to the employment or compensation of employees by any of the Company or its subsidiaries that could have a Material Adverse Effect; (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Company or its subsidiaries that could have a Material Adverse Effect. None of the following events has occurred or is reasonably likely to occur: (i) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company and its subsidiaries compared to the amount of such contributions made in the most recently completed fiscal year of the Company and its subsidiaries; (ii) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) for the current fiscal year of the Company and its subsidiaries compared to the amount of such obligations in the most recently completed fiscal year of the Company and its subsidiaries; (iii) any event or condition giving rise to a liability under Title IV of ERISA that could have a Material Adverse Effect; or (iv) the filing of a claim by one or more employees or former employees of the Company or its subsidiaries, related to their employment that could have a Material Adverse Effect. For purposes of this paragraph, the term “Plan” means a plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the Company or its subsidiaries may have any liability.

(ee) None of the Company or its subsidiaries, or to the knowledge of the Company, any director, officer, agent, employee or Affiliate of the Company or its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company and its subsidiaries and, to the knowledge of the Company, its Affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.


(ff) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company and its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

(gg) None of the Company or its subsidiaries, or, to the knowledge of the Company, any director, officer, agent, employee or Affiliate of the Company or any of its subsidiaries is currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

(hh) There is and has been no failure on the part of the Company and any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.

(ii) The qualitative and quantitative data regarding proven and probable coal reserves of the Company included or incorporated by reference in the Disclosure Package and the Final Prospectus (x) were derived in accordance with the procedures described in the Disclosure Package and the Final Prospectus and all applicable industry standards, including Industry Guide 7 under the Exchange Act, and (y) have been reviewed by the professionals set forth in the Underwriting Agreement.

Any certificate signed by any officer of the Company and delivered to the Representative or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.

2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I to the Underwriting Agreement the principal amount of the Securities set forth opposite such Underwriter’s name in Schedule II to the Underwriting Agreement.

3. Delivery and Payment. Delivery of and payment for the Securities shall be made on the date and at the time specified in Schedule I to the Underwriting Agreement or at such time on such later date not more than three Business Days after the foregoing date as the



4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus.

5. Agreements.  The Company agrees with the several Underwriters that:

(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representative with the Commission pursuant to Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.

(b) To prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in the form approved by you and attached as



(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.

(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representative of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.

(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.

(f) The Company will furnish to the Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.



(h) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representative, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III to the Underwriting Agreement and any electronic road show. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.

(i) The Company will not, without the prior written consent of the Representative, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any Affiliate of the Company or any person in privity with the Company or any Affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date.

(j) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the


Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange, if any; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the NASD, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.

6. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:

(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.

(b) The Company shall have requested and caused Davis Polk & Wardwell, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.


(c) The Company shall have requested and caused Joseph W. Bean, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.

(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.

(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that to the best of their knowledge:

(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;

(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and

(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).

(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.

(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and


the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).

(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.

(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.

If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.

The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.

7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through the Representative on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.

8. Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each


Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other U.S. federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representative specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.

(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, each of its directors, each of its officers, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representative specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the Underwriting Agreement constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.

(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided


in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.

(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively “Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total


underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).

9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule II to the Underwriting Agreement bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule II to the Underwriting Agreement, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representative shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.

10. Termination. This Agreement shall be subject to termination in the absolute discretion of the Representative, by notice given to the Company prior to delivery of, and payment for, the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have



11. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.

12. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representative, will be mailed, delivered or telefaxed to (a) the Representative at the address and fax details set forth in the Underwriting Agreement and (b) Underwriter’s counsel at the address and fax details set forth in the Underwriting Agreement; or, if sent to the Company, will be mailed, delivered or telefaxed to Patriot Coal Corporation (fax no.: (314) 275-3656) and confirmed to it at Patriot Coal Corporation, 12312 Olive Boulevard, Suite 400, St. Louis, Missouri 63141, Attention: Joseph W. Bean, with a copy to Davis Polk & Wardwell, Attention: Sarah E. Beshar, Esq. (fax no.: (212) 450-3800) and confirmed to Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017.

13. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.

14. No fiduciary duty. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and any Affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principals and not as agents or fiduciaries of the Company and (c) the Company’s engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.



16. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.

17. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

18. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.

19. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.

20. Definitions. The terms that follow, when used in this Agreement, shall have the meanings indicated.

“Act” shall mean the U.S. Securities Act of 1933, as amended and the rules and regulations of the Commission promulgated thereunder.

“Affiliate” shall have the meaning specified in Rule 501(b) of Regulation D.

“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Execution Time.

“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.

“Commission” shall mean the Securities and Exchange Commission.

“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule III to the Underwriting Agreement, (iv) the final term sheet prepared and filed pursuant to Section 5(b) hereto, if any, and (v) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.

“Effective Date” shall mean each date and time that the Registration Statement, and any post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or becomes effective.

 

“Execution Time” shall mean the date and time that the Underwriting Agreement is executed and delivered by the parties hereto.

“Final Prospectus” shall mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.

“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.

“Investment Company Act” shall mean the U.S. Investment Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated thereunder.

“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.

“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final Prospectus, together with the Base Prospectus.

“Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective prior to the Closing Date, shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be.

“Regulation D” shall mean Regulation D under the Act.

“Regulation S-X” shall mean Regulation S-X under the Act.

“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B” , “Rule 433” and “Rule 462” refer to such rules under the Act.

“Rule 462(b) Registration Statement” shall mean a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the registration statement referred to in Section 1(a) hereof.

“Trust Indenture Act” shall mean the U.S. Trust Indenture Act of 1939, as amended and the rules and regulations of the Commission promulgated thereunder.

 

[FORM OF UNDERWRITING AGREEMENT]



Underwriting Agreement

[__________], 20[__]

To the Representative named in
Schedule I hereto of the several
Underwriters named in
Schedule II hereto

Ladies and Gentlemen:

Patriot Coal Corporation, a corporation organized under the laws of Delaware (the “Company”), proposes to sell (such sale, the “Offering”) to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you (the “Representative”) are acting as representative, the principal amount of its securities identified in Schedule I hereto (the “Securities”), to be issued under an indenture (the “Base Indenture”) dated as of ______, 20__, as amended by a [insert supplemental indenture number] supplemental indenture dated

_______, 20__ (the “[insert supplemental indenture number] Supplemental Indenture”) between the Company and Wilmington Trust Company, as trustee (the “Trustee”, and the Base Indenture as amended by the [insert supplemental indenture number] Supplemental Indenture the “Indenture”).

To the extent there are no additional Underwriters listed on Schedule I other than you, the term Representative as used herein shall mean you, as Underwriter, and the terms Representative and Underwriter shall mean either the singular or plural as the context requires.

Subject to the terms and conditions and in reliance upon the representations and warranties set forth herein and in the Company’s Debt Underwriting Agreement Standard Provisions filed as Exhibit 1.2 to the Company’s Form S-3 dated April 17, 2009 (the “Standard Provisions”), the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I to the Underwriting Agreement the principal amount of the Securities set forth opposite such Underwriter’s name in Schedule II to the Underwriting Agreement.

Schedule III hereto contains the Free Writing Prospectuses, if any, that shall be included in the Disclosure Package and to which the parties hereto have provided their consent for use pursuant to Section 5(h) of the Standard Provisions.

Schedule IV hereto contains the final term sheet prepared for the Offering.
 

Schedule V hereto contains a list of the Company’s Significant Subsidiaries.

[LIST OF PROVISIONS AND DETAILS SPECIFIC TO THE OFFERING INCLUDING DETAILS WITH RESPECT TO LANGUAGE REQUIRED BY THE STANDARD PROVISIONS]

All provisions contained in the Standard Provisions are incorporated by reference herein in their entirety, except as explicitly amended by this Underwriting Agreement (including if any term defined in such Standard Provisions is otherwise defined herein), and shall be deemed to be a part of this Underwriting Agreement to the same extent as if such provisions had been set forth in full herein.

This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.

If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.

 
 
 
   
Patriot Coal Corporation
  
   
       
By:    
  Name:    
  Title:    
The foregoing Underwriting Agreement is
hereby confirmed and accepted
as of the date specified in Schedule I hereto.

[Representative]

 
By:
[Representative]
  
       
By:    
  Name:    
  Title:    


For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Underwriting Agreement.

 

SCHEDULE I

Underwriting Agreement dated
 
Registration Statement No.
 
Representative(s):
 
Title, Purchase Price and Description of Securities:
 
Title:
 
Principal amount:
 
Purchase price (include accrued
interest or amortization, if
any):
 
Sinking fund provisions:
 
Redemption provisions:
 
Other provisions:
 
Closing Date, Time and Location:                          , 20 at 10:00 a.m. at [name and
address of Underwriters’ counsel]
 
Type of Offering:

Modification of items to be covered by the letter from
Ernst & Young LLP delivered pursuant to
Section 6(f) at the Execution Time:


 
SCHEDULE II
 
 
Underwriters  
Principal Amount
of Securities to
be Purchased
     
     $
     
     
     
     
     
     
     
Total
    $
 
 

Schedule of Free Writing Prospectuses included in the Disclosure Package

[list all FWPs included in the Disclosure Package]


 
SCHEDULE IV
 
Issuer:
Patriot Coal Corporation
   
Security Type:
[                    ]
   
Size:
US$[                    ]
   
Maturity:
[                    ]
   
Coupon:
[       ]% per annum, accruing from [                                        ]
   
Price to Public:
[       ]% of face amount
   
Yield to maturity:
[       ]%
   
Spread to Benchmark Treasury:
[                    ]
   
Benchmark Treasury:
[                    ]
   
Benchmark Treasury Price and Yield:
[                    ]
   
Interest Payment Dates:
[                    ] and [                    ], commencing [                    ]
   
Redemption:
[                    ]
   
Trade Date:
[                    ]
   
Settlement Date:
[                    ]
   
Ratings:
[                    ]
   
Underwriters:
[                    ]
 

List of Significant Subsidiaries

[list all Significant Subsidiaries]




[FORM OF OPINION FOR OUTSIDE COUNSEL OF THE COMPANY]

[date]


[Name[s] of managing underwriter[s]]
as Representative of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
[c/o][[name of lead manager]]
[address of lead manager]

Ladies and Gentlemen:

We have acted as special counsel for Patriot Coal Corporation, a Delaware corporation (the “Company”), in connection with the Underwriting Agreement dated _______, 20__ (the “Underwriting Agreement”) with you and the other several Underwriters named in Schedule II thereto under which you and such other Underwriters have severally agreed to purchase from the Company $[insert principal amount] aggregate principal amount of its [designation of security] (the “Securities”). The Securities are to be issued pursuant to the provisions of the Indenture dated as of _______, 20__ (the “Base Indenture”), as amended by a [insert supplemental indenture number] supplemental indenture dated _______, 20__ (the “[insert supplemental indenture number] Supplemental Indenture”) between the Company and Wilmington Trust Company, as trustee (the “Trustee”). The Base Indenture as amended by the [insert supplemental indenture number] Supplemental Indenture is hereinafter referred to as the “Indenture”.

We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.

We have also reviewed the Company’s registration statement on Form S-3 (File No. 333-157645) [and Amendments Nos. _____ thereto] (including the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company and have participated in the preparation of the preliminary prospectus supplement dated _______, 20__ (the “Preliminary Prospectus Supplement”) relating to the Securities, [list free writing prospectuses, if any, that form part of the Disclosure Package as defined in the Underwriting Agreement] and the prospectus supplement dated _________, 20__ relating to the Securities (the “Prospectus Supplement”). In addition, we have [examined evidence] [been advised by the staff of the Commission] that the registration statement as so amended was declared effective under the Act and the Indenture qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), on [insert date of effectiveness]. The registration statement as amended at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement
 


We have assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”), except for required EDGAR formatting changes, to physical copies of the documents submitted for our examination.

Capitalized terms used but not otherwise defined herein are used as defined in the Underwriting Agreement.

Based upon the foregoing, we are of the opinion that:

1. The Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability. [APPLICABLE CARVE-OUTS TO BE ADDED IF REQUIRED BASED UPON SUPPLEMENTAL INDENTURES.]

2. The Securities, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Securities are to be issued. [APPLICABLE CARVE OUTS TO BE ADDED IF REQUIRED BASED UPON SPECIFIC TERMS OF THE SECURITIES.]

3. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.

4. The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

5. [Except as disclosed in the Prospectus, t][T]he execution and delivery by the Company of, and the performance by the Company of its obligations under, the Indenture, the Securities and the Underwriting Agreement (collectively, the “Documents”) will not contravene (i) any provision of the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Documents, or the General Corporation Law of the State of Delaware provided that we express no opinion as to federal or state securities laws,



6. No consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Documents, or the General Corporation Law of the State of Delaware is required for the execution, delivery and performance by the Company of its obligations under the Documents, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion.

We have considered the statements included in the Prospectus under the captions “Description of Debt Securities” and “[Description of the Securities]” insofar as they summarize provisions of the Indenture and the Securities. In our opinion, such statements fairly summarize these provisions in all material respects.

In rendering the opinions in paragraphs (1) thru (3) above, we have assumed that each party to the Documents has been duly incorporated and is validly existing and in good standing under the laws of the jurisdiction of its organization. In addition, we have assumed that (i) the execution, delivery and performance by each party thereto of each Document to which it is a party, (a) are within its corporate powers, (b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other constitutive documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party, provided that we make no such assumption to the extent that we have specifically opined as to such matters with respect to the Company, and (ii) each Document (other than the Underwriting Agreement) is a valid, binding and enforceable agreement of each party thereto, (other than as expressly covered above in respect of the Company).

We are members of the Bar of the State of New York, and the foregoing opinion is limited to the laws of the State of New York, the federal laws of the United States of America and the General Corporation Law of the State of Delaware, except that we express no opinion as to any law, rule or regulation that is applicable to the Company, the Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.

This opinion is rendered solely to you and the other several Underwriters in connection with the Underwriting Agreement. This opinion may not be relied upon by you for any other purpose or relied upon by any other person (including any person acquiring Securities from the several Underwriters) or furnished to any other person without our prior written consent.
 
Very truly yours,
 

Form of 10b-5 Statement of Outside Counsel for the Company

[date]


[Name[s] of managing underwriter[s]]
as Representative of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
[c/o][[name of lead manager]]
[address of lead manager]

Ladies and Gentlemen:

We have acted as special counsel for Patriot Coal Corporation, a Delaware corporation (the “Company”), in connection with the Underwriting Agreement dated _______, 20__ (the “Underwriting Agreement”) with you and the other several Underwriters named in Schedule II thereto under which you and such other Underwriters have severally agreed to purchase from the Company $[insert principal amount] aggregate principal amount of its [designation of security] (the “Securities”). The Securities are to be issued pursuant to the provisions of the Indenture dated as of _______, 20__ (the “Base Indenture”), as amended by a [insert supplemental indenture number] supplemental indenture dated _______, 20__ (the “[insert supplemental indenture number] Supplemental Indenture”) between the Company and Wilmington Trust Company, as trustee (the “Trustee”). The Base Indenture as amended by the [insert supplemental indenture number] Supplemental Indenture is hereinafter referred to as the “Indenture”.

We also have reviewed the Company’s registration statement on Form S-3 (File No. 333-157645) [and Amendments Nos. _____ thereto] (including the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company and have participated in the preparation of the preliminary prospectus supplement dated _______, 20__ (the “Preliminary Prospectus Supplement”) relating to the Securities, [list free writing prospectuses, if any, that form part of the Disclosure Package as defined in the Underwriting Agreement] and the prospectus supplement dated _________, 20__ relating to the Securities (the “Prospectus Supplement”). The registration statement as amended at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement”, and the related prospectus (including the Incorporated Documents) dated ____________, 20__ relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the Preliminary Prospectus Supplement, together with the [free writing prospectus[es] set forth in Schedule III to the Underwriting Agreement for the Securities] [information] are hereinafter called the “Disclosure Package”. The Basic Prospectus, as


supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Securities (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Securities under Rule 173 under the Act), is hereinafter referred to as the “Prospectus”.

We have assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”), except for required EDGAR formatting changes, to physical copies of the documents submitted for our examination.

The primary purpose of our professional engagement was not to establish or confirm factual matters or financial, accounting or quantitative information (including information with respect to proven and probable coal reserves). Furthermore, many determinations involved in the preparation of the Registration Statement, the Disclosure Package and the Prospectus are of a wholly or partially non-legal character or relate to legal matters outside the scope of our opinion separately delivered to you today in respect of certain matters under the laws of the State of New York, the federal laws of the United States of America and the General Corporation Law of the State of Delaware. As a result, we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus, and we have not ourselves checked the accuracy, completeness or fairness of, or otherwise verified, the information furnished in such documents (except to the extent expressly set forth in our opinion letter separately delivered to you today as to statements included in the Prospectus under the captions “Description of Debt Securities” and “[Description of the Securities]”). However, in the course of our acting as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus, we have generally reviewed and discussed with your representatives and your counsel and with certain officers and employees of, and independent public accountants for, the Company the information furnished, whether or not subject to our check and verification. We have also reviewed and relied upon certain corporate records and documents, letters from counsel and accountants and oral and written statements of officers and other representatives of the Company and others as to the existence and consequence of certain factual and other matters.

Capitalized terms used but not otherwise defined herein are used as defined in the Underwriting Agreement.

On the basis of the information gained in the course of the performance of the services rendered above, but without independent check or verification except as stated above:

(i) the Registration Statement and the Prospectus appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations of the Commission thereunder; and

(ii) nothing has come to our attention that causes us to believe that, insofar as relevant to the offering of the Securities:

(a) the Registration Statement or the prospectus included therein at the time the Registration Statement became effective and on the date of the Underwriting Agreement,



(b) at the Execution Time, the Disclosure Package contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or

(c) the Prospectus as of the date of the Underwriting Agreement or as of the date hereof contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

In providing this letter to you and the other several Underwriters, we have not been called to pass upon, and we express no view regarding, the financial statements or financial schedules or other financial or accounting data or statements regarding proven and probable coal reserves included in the Registration Statement, the Disclosure Package, the Prospectus, or the Statement of Eligibility of the Trustee on Form T-1. In addition, we express no view as to the conveyance of the Disclosure Package or the information contained therein to investors.

This letter is delivered solely to you and the other several Underwriters in connection with the Underwriting Agreement. This letter may not be relied upon by you for any other purpose or relied upon by any other person (including any person acquiring Securities from the several Underwriters) or furnished to any other person without our prior written consent.

 
Very truly yours,
 


[FORM OF OPINION OF COMPANY COUNSEL]

[date]


[Name[s] of managing underwriter[s]]
as Representative of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
[c/o][[name of lead manager]]
[address of lead manager]

Ladies and Gentlemen:

I, Joseph W. Bean, am Senior Vice President and General Counsel of Patriot Coal Corporation, a Delaware corporation (the “Company”). This opinion is delivered in connection with the Underwriting Agreement dated _______, 20__ (the “Underwriting Agreement”) with you and the other several Underwriters named in Schedule II thereto under which you and such other Underwriters have severally agreed to purchase from the Company $[insert principal amount] aggregate principal amount of its [designation of security] (the “Securities”). The Securities are to be issued pursuant to the provisions of the Indenture dated as of _______, 20__ (the “Base Indenture”), as amended by a [insert supplemental indenture number] supplemental indenture dated _______, 20__ (the “[insert supplemental indenture number] Supplemental Indenture”) between the Company and Wilmington Trust Company, as trustee (the “Trustee”). The Base Indenture as amended by the [insert supplemental indenture number] Supplemental Indenture is hereinafter referred to as the “Indenture”.

I have examined originals or copies, certified or otherwise identified to my satisfaction, of such documents, corporate records, certificates of public officials and other instruments as I have deemed necessary or advisable for the purpose of rendering this opinion.

Capitalized terms used but not otherwise defined herein are used as defined in the Underwriting Agreement.

Based upon the foregoing, I am of the opinion that:

1. Each of the Company and the Significant Subsidiaries listed on Schedule V to the Underwriting Agreement (individually, a “Significant Subsidiary” and collectively, the “Significant Subsidiaries”) has been duly incorporated or organized and is validly existing as a corporation, limited liability company or other entity in good standing under the laws of the jurisdiction in which it is formed, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification,
 


2. There is no pending or, to my knowledge, threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Significant Subsidiaries or its or their property that (a) is within the scope of Item l03 of Regulation S-K under the Securities Act and (b) is not described in the Disclosure Package and the Final Prospectus; and the statements in the Preliminary Prospectus and the Final Prospectus under the headings listed in the Underwriting Agreement fairly summarize the matters therein described in all material respects.

3. Neither the execution and delivery of the Indenture or the Underwriting Agreement, the issuance and sale of the Securities, nor the consummation of any other of the transactions therein contemplated, nor the fulfillment of the terms thereof, will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or asset of the Company or of any of its Significant Subsidiaries pursuant to any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of the Significant Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company, any of the Significant Subsidiaries or any of their respective properties (including any mining or environmental law, rule or regulation) or the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its Significant Subsidiaries is a party or bound or to which its or their property is subject.

The foregoing opinion is limited to the federal laws of the United States of America and the General Corporation Law of the State of Delaware.

This opinion is rendered solely to you in connection with the Underwriting Agreement. This opinion may not be relied upon by you for any other purpose or relied upon by any other person (including any person acquiring Securities from the several Underwriters) or furnished to any other person without my prior written consent.

 
Very truly yours,
 
 
 EX-4.2 5 dp13023_ex0402.htm EXHIBIT 4.2
 
Exhibit 4.2
 

 
 
 
PATRIOT COAL CORPORATION
 

 
and
 

 
Wilmington Trust Company, Trustee
 

 

 
FORM OF INDENTURE
 

 
Dated as of __________, ____
 

 
___________
 
 
 
 

 
 
 
TABLE OF CONTENTS

 
Page
   
ARTICLE 1
DEFINITIONS
   
Section 1.01. Certain Terms Defined
1
   
ARTICLE 2
SECURITIES
   
Section 2.01. Forms Generally
5
Section 2.02. Form of Certification of Authentication
5
Section 2.03. Amount Unlimited; Issuable in Series
5
Section 2.04. Authentication and Delivery of Securities
7
Section 2.05. Execution of Securities
8
Section 2.06. Certificate of Authentication
9
Section 2.07. Denomination and Date of Securities; Payments of Interest
9
Section 2.08. Registration, Transfer and Exchange
10
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities
11
Section 2.10. Cancellation of Securities; Destruction Thereof
12
Section 2.11. Temporary Securities
12
Section 2.12. Global Securities
 13
   
ARTICLE 3
COVENANTS OF THE ISSUER AND THE TRUSTEE
   
Section 3.01. Payment of Principal and Interest
13
Section 3.02. Offices for Payments, etc
13
Section 3.03. Appointment to Fill a Vacancy in Office of Trustee
13
Section 3.04. Paying Agents
14
Section 3.05. Certificate of the Issuer
15
Section 3.06. Securityholders Lists
15
Section 3.07. Reports by the Issuer
15
Section 3.08. Reports by the Trustee
15
   
ARTICLE 4
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
   
Section 4.01. Event of Default; Acceleration of Maturity; Waiver of Default
16
Section 4.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt
18
Section 4.03. Application of Proceeds
21
Section 4.04. Suits for Enforcement
22
Section 4.05. Restoration of Rights on Abandonment of Proceedings
22

 
 
 
Page
   
Section 4.06. Limitations on Suits by Securityholder
22
Section 4.07. Unconditional Right of Securityholders to Institute Certain Suits
23
Section 4.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
23
Section 4.09. Control by Securityholders
23
Section 4.10. Waiver of Past Defaults
24
Section 4.11. Trustee to Give Notice of Default, But May Withhold in Certain Circumstances
24
Section 4.12. Right of Court to Require Filing of Undertaking to Pay Costs
25
   
ARTICLE 5
CONCERNING THE TRUSTEE
   
Section 5.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default
25
Section 5.02. Certain Rights of the Trustee
27
Section 5.03. Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof
29
Section 5.04. Trustee and Agents May Hold Securities; Collections, etc
29
Section 5.05. Moneys Held by Trustee
29
Section 5.06. Compensation and Indemnification of Trustee and Its Prior Claim
29
Section 5.07. Right of Trustee to Rely on Officers  Certificate, etc
30
Section 5.08. Persons Eligible for Appointment as Trustee
30
Section 5.09. Resignation and Removal; Appointment of Successor Trustee
30
Section 5.10. Acceptance of Appointment by Successor
32
Section 5.11. Merger, Conversion, Consolidation or Succession to Business of Trustee
33
Section 5.12. Indenture Not Creating Potential Conflicting Interests For The Trustee
33
   
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
   
Section 6.01. Evidence of Action Taken by Securityholders
34
Section 6.02. Proof of Execution of Instruments and of Holding of Securities; Record Date
34
Section 6.03. Holders to Be Treated as Owners
34
Section 6.04. Securities Owned by Issuer Deemed Not Outstanding
35
Section 6.05. Right of Revocation of Action Taken
35

ii
 
 
 
Page
   
ARTICLE 7
SUPPLEMENTAL INDENTURES
   
Section 7.01. Supplemental Indentures Without Consent of Securityholders
36
Section 7.02. Supplemental Indentures With Consent of Securityholders
37
Section 7.03. Effect of Supplemental Indenture
38
Section 7.04. Documents to Be Given to Trustee
39
Section 7.05. Notation on Securities in Respect of Supplemental Indentures
39
   
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
   
Section 8.01. Issuer May Consolidate, etc, on Certain Terms
39
Section 8.02. Successor Corporation Substituted
40
Section 8.03. Opinion of Counsel to Trustee
40
   
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
   
Section 9.01. Satisfaction and Discharge of Indenture
41
Section 9.02. Application by Trustee of Funds Deposited for Payment of Securities
41
Section 9.03. Repayment of Moneys Held by Paying Agent
42
Section 9.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Three Years
42
   
ARTICLE 10
MISCELLANEOUS PROVISIONS
   
Section 10.01. Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual Liability
42
Section 10.02. Provisions of Indenture for the Sole Benefit of Parties and Securityholders
43
Section 10.03. Successors and Assigns of Issuer Bound by Indenture
43
Section 10.04. Notices and Demands on Issuer, Trustee and Securityholders
43
Section 10.05. Officers  Certificates and Opinions of Counsel; Statements to Be Contained Therein
44
Section 10.06. Payments Due on Saturdays, Sundays and Holidays
45
Section 10.07. Conflict of any Provision of Indenture with Trust Indenture Act of 1939
45
Section 10.08. New York Law to Govern
45
Section 10.09. Counterparts
45
Section 10.10. Effect of Headings
45

iii
 

 
Page
   
ARTICLE 11
REDEMPTION OF SECURITIES AND SINKING FUNDS
   
Section 11.01. Applicability of Article
45
Section 11.02. Notice of Redemption; Partial Redemptions
46
Section 11.03. Payment of Securities Called for Redemption
47
Section 11.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption
48
Section 11.05. Mandatory and Optional Sinking Funds
48
   
ARTICLE 12
DEFEASANCE
   
Section 12.01. Issuer s Option to Effect Defeasance
50
Section 12.02. Defeasances and Discharge
51
Section 12.03. Covenant Defeasance
51
Section 12.04. Conditions to Defeasance
52
Section 12.05. Deposited Money and U.S. Government Obligations to Be Held in Trust; Reinstatement; Miscellaneous
53
   
Exhibit A – Form of Note  
 
iv
 
THIS INDENTURE, dated as of [__________], 20[__] between PATRIOT COAL CORPORATION, a corporation organized under the laws of the State of Delaware (the “Issuer”), and Wilmington Trust Company (the “Trustee”),
 
W I T N E S S E T H:
 
WHEREAS, the Issuer has duly authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture and to provide, among other things, for the authentication, delivery and administration thereof, the Issuer has duly authorized the execution and delivery of this Indenture; and
 
WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;
 
NOW, THEREFORE:
 
In consideration of the premises and the purchases of the Securities by the Holders thereof, the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Securities as follows:
 
 
ARTICLE 1
Definitions
 
Section 1.01 .  Certain Terms Defined.  The following terms (except as otherwise expressly provided or unless the context otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section.  All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939 or the definitions of which in the Securities Act of 1933 are referred to in the Trust Indenture Act of 1939, including terms defined therein by reference to the Securities Act of 1933 (except as herein otherwise expressly provided or unless the context otherwise clearly requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture.  All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles” means such accounting principles as are generally accepted at the time of any computation.  The words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.  The terms defined in this Article have the
 
 
meanings assigned to them in this Article and include the plural as well as the singular.
 
“Board of Directors” means either the Board of Directors of the Issuer or any committee of such Board duly authorized to act hereunder.
 
“Business Day” means, with respect to any Security, a day other than a Saturday or Sunday that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified in the form of such Security, is not a day on which banking institutions are authorized by law or regulation to close.
 
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act of 1939, then the body performing such duties on such date.
 
“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally administered, which office is, at the date as of which this Indenture is dated, located at 1100 North Market Street, Rodney Square North, Wilmington, Delaware 19890, Attn: Corporate Trust Administration – Patriot Coal Corporation, or any other address that the Trustee may designate from time to time by notice to the Issuer and the Holders.
 
“Depository” means, with respect to the Securities of any series issuable upon original issuance in whole or in part in the form of one or more Global Securities, The Depository Trust Company (or any nominee, successor to or assignee thereof) or any other clearing agency registered under the Securities Exchange Act of 1934 specified for that purpose as contemplated by Section 2.03.
 
“Event of Default” means any event or condition specified as such in Section 4.01.
 
“Global Security” means a Security bearing the legend specified in Section 2.12 evidencing all or part of a series of Securities, issued to the Depository with respect to such series or its nominee and registered in the name of such Depository or nominee.
 
“Holder”, “Holder of Securities”, “Securityholder” or other similar terms mean the registered holder of any Security.
 
“Indenture” means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.
 
“Interest” means, when used with respect to non-interest bearing Securities, interest payable after maturity.
 
“Issuer” means (except as otherwise provided in Article 5) Patriot Coal Corporation, a corporation organized under the laws of the State of Delaware, and, subject to Article 8, its successors and assigns.
 
“Officers’ Certificate” means a certificate signed by the chairman of the Board of Directors or the president or any vice president and by the treasurer or
 
2
 
the secretary or any assistant secretary of the Issuer and delivered to the Trustee.  Each such certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and include the statements provided for in Section 10.05.
 
“Opinion of Counsel” means an opinion in writing signed by legal counsel who may be an employee of or counsel to the Issuer and who shall be satisfactory to the Trustee.  Each such opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and include the statements provided for in Section 10.05, if and to the extent required hereby.
 
“Original issue date” of any Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
 
“Original Issue Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.
 
“Outstanding”, when used with reference to Securities, shall, subject to the provisions of Section 6.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
 
(a)        Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
 
(b)        Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the Holders of such Securities (if the Issuer shall act as its own paying agent), provided that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
 
(c)        Securities in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.09 (except with respect to any such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the Issuer).
 
3
 
In determining whether the Holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.
 
“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
 
“Principal” whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include “and premium, if any”.
 
“Responsible Officer” when used with respect to the Trustee means the chairman of the board of directors, any vice chairman of the board of directors, the chairman of the trust committee, the chairman of the executive committee, any vice chairman of the executive committee, the president, any vice president, the cashier, the secretary, the treasurer, any trust officer, any assistant trust officer, any assistant vice president, any assistant cashier, any assistant secretary, any assistant treasurer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject, in each case having direct responsibility for administration of this Indenture.
 
“Security” or “Securities” has the meaning stated in the first recital of this Indenture, or, as the case may be, Securities that have been authenticated and delivered under this Indenture.
 
“Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject to the provisions of Article 5, shall also include any successor trustee.
 
“Trust Indenture Act of 1939” (except as otherwise provided in Sections 7.01 and 7.02) means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was originally executed.
 
“vice president” when used with respect to the Issuer or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title of “vice president”.
 
4
 
“Yield to Maturity” means the yield to maturity on a series of securities, calculated at the time of issuance of such series, or, if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
 
ARTICLE 2
Securities
 
Section 2.01 .  Forms Generally.  The Securities of each series shall be substantially in such form attached hereto as Exhibit A (unless the Securities of such series are not issued in global form) as shall be established by or pursuant to a resolution of the Board of Directors or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing such Securities, as evidenced by their execution of the Securities.
 
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
 
Section 2.02 .  Form of Certification of Authentication.  The certificate of authentication on all Securities shall be in substantially the following form:
 
This is one of the Securities of the series referred to in the within-mentioned Indenture.
 
 
[_____________],
as [Trustee/Authenticating Agent]
  
     
     
 
By:
    
   
Authorized Officer
  

Section 2.03 .  Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
 
5
 
The Securities may be issued in one or more series.  There shall be established in or pursuant to a resolution of the Board of Directors and set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
 
(a) the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
 
(b) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.11 or 11.03);
 
(c) the date or dates on which the principal of the Securities of the series is payable;
 
(d) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate shall be determined, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and the record dates for the determination of Holders to whom interest is payable;
 
(e) the place or places where the principal of and any interest on Securities of the series shall be payable (if other than as provided in Section 3.02);
 
(f) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer, pursuant to any sinking fund or otherwise;
 
(g) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and the terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
 
(h) if other than denominations of $1,000 and any multiple thereof, the denominations in which Securities of the series shall be issuable;
 
(i) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon
 
6
 
 
declaration of acceleration of the maturity thereof pursuant to Section 4.01 or provable in bankruptcy pursuant to Section 4.02;
 
(j) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture);
 
(k) if and the terms and conditions upon which the Securities of the series may or must be converted into securities of the Company or exchanged for securities of the Company or another enterprise;
 
(l) any trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the Securities of such series;
 
(m) if the Securities are not to be issued in global form, the form of such Securities;
 
(n) the Depository with respect to such Global Security (if not The Depository Trust Company); and
 
(o) the circumstances under which any Global Security may be exchanged for Securities registered in the name of, and any transfer of such Global Security may be registered to, a Person other than such Depository or its nominee, if other than as set forth in Section 2.08.
 
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such resolution of the Board of Directors or in any such indenture supplemental hereto.
 
Section 2.04 .  Authentication and Delivery of Securities.  At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Issuer, signed by both (a) the Chairman of its Board of Directors, or any vice chairman of its Board of Directors, or its president or any vice president and (b) by its treasurer or any assistant treasurer, without any further action by the Issuer.  In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities the Trustee shall be entitled to receive, and (subject to Section 5.01) shall be fully protected in relying upon:
 
(a) a certified copy of any resolution or resolutions of the Board of Directors authorizing the action taken pursuant to the resolution or resolutions delivered under clause 2.04(b) below;
 
(b) a copy of any resolution or resolutions of the Board of Directors relating to such series, in each case certified by the Secretary or an Assistant Secretary of the Issuer;
 
(c) an executed supplemental indenture, if any;
 
(d) an Officers’ Certificate setting forth the form and terms of the Securities as required pursuant to Section 2.01 and 2.03, respectively and prepared in accordance with Section 10.05;
 
7
 
(e) an Opinion of Counsel, prepared in accordance with Section 10.05, to the effect
 
(i) that the form or forms and terms of such Securities have been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.01 and 2.03 in conformity with the provisions of this Indenture;
 
(ii) that such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer;
 
(iii) that all laws and requirements in respect of the execution and delivery by the Issuer of the Securities have been complied with; and
 
(iv) covering such other matters as the Trustee may reasonably request; and
 
(f) if the Securities being issued are Original Issue Discount Securities, an Officers’ Certificate of the Issuer setting forth the Yield to Maturity for such Securities and any other facts required to compute amounts due on acceleration, unless such Yield to Maturity and other facts are specified in the form of Security.
 
The Trustee shall have the right to decline to authenticate and deliver any Securities under this section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders.
 
Section 2.05 .  Execution of Securities.  The Securities shall be signed on behalf of the Issuer by both (a) the chairman of its Board of Directors or any vice chairman of its Board of Directors or its president or any vice president and (b) by its treasurer or any assistant treasurer or its secretary or any assistant secretary, under its corporate seal which may, but need not, be attested.  Such signatures may be the manual or facsimile signatures of the present or any future such officers.  The seal of the Issuer may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Securities.  Typographical and other minor errors or defects in any such reproduction of the
 
8
 
seal or any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.
 
In case any officer of the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed such Security had not ceased to be such officer of the Issuer; and any Security may be signed on behalf of the Issuer by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Issuer, although at the date of the execution and delivery of this Indenture any such person was not such an officer.
 
Section 2.06 .  Certificate of Authentication.  Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose.  Such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
 
Section 2.07 .  Denomination and Date of Securities; Payments of Interest.  The Securities shall be issuable as registered securities without coupons and in denominations as shall be specified as contemplated by Section 2.03.  In the absence of any such specification with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any multiple thereof.  The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plan as the officers of the Issuer executing the same may determine with the approval of the Trustee as evidenced by the execution and authentication thereof.
 
Each Security shall be dated the date of its authentication, shall bear interest, if any, from the date and shall be payable on the dates, in each case, which shall be specified as contemplated by Section 2.03.
 
The person in whose name any Security of any series is registered at the close of business on any record date applicable to a particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer or exchange of such Security subsequent to the record date and prior to such interest payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment date for such series, in which case such defaulted interest shall be paid to the persons in whose names Outstanding
 
9
 
Securities for such series are registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the Holders of Securities not less than 15 days preceding such subsequent record date.  The term “record date” as used with respect to any interest payment date (except a date for payment of defaulted interest) shall mean the date specified as such in the terms of the Securities of any particular series, or, if no such date is so specified, if such interest payment date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if such interest payment date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such record date is a Business Day.
 
Section 2.08 .  Registration, Transfer and Exchange.  The Issuer will keep or cause to be kept at each office or agency to be maintained for the purpose as provided in Section 3.02 a register or registers in which, subject to such reasonable regulations as it may prescribe, it will register, and will register the transfer of, Securities as in this Article provided.  Such register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time.  At all reasonable times such register or registers shall be open for inspection by the Trustee.
 
Upon due presentation for registration of transfer of any Security of any series at any such office or agency to be maintained for the purpose as provided in Section 3.02, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of the same series in authorized denominations for a like aggregate principal amount.
 
Any Security or Securities of any series may be exchanged for a Security or Securities of the same series in other authorized denominations, in an equal aggregate principal amount.  Securities of any series to be exchanged shall be surrendered at any office or agency to be maintained by the Issuer for the purpose as provided in Section 3.02, and the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities of the same series which the Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously Outstanding.
 
All Securities presented for registration of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder or his attorney duly authorized in writing.
 
The Issuer and the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection
 
10
 
with any exchange or registration of transfer of Securities and any other expenses (including the fees and expenses of the Trustee).  No service charge shall be made for any such transaction.
 
The Issuer shall not be required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days next preceding the first mailing of notice of redemption of Securities of such series to be redeemed, or (b) any Securities selected, called or being called for redemption except, in the case of any Security where public notice has been given that such Security is to be redeemed in part, the portion thereof not so to be redeemed.
 
All Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
 
Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 2.03, any Global Security of any series shall be exchangeable for definitive Securities only if:  (i) such Depository is at any time unwilling or unable to continue as Depository or ceases to be a clearing agency registered under the Securities Exchange Act of 1934, and a successor Depository registered as a clearing agency under the Securities Act of 1934 is not appointed by the Issuer within 90 days, or (ii) the Issuer executes and delivers to the Trustee an Officers’ Certificate providing that such Global Security shall be so exchangeable and the transfer thereof so registrable.
 
If the beneficial owners of interests in a Global Security are entitled to exchange such interests for definitive Securities as the result of an event described in the preceding sentence, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged, the Issuer shall deliver to the Trustee definitive Securities in such form and denominations as are required by or pursuant to this Indenture, and of the same series, containing identical terms and in aggregate principal amount equal to the principal amount of such Global Security, executed by the Issuer.  On or after the earliest date on which such interests may be so exchanged, such Global Security shall be surrendered from time to time by the Depository and in accordance with instructions given to the Trustee and the Depository (which instructions shall be in writing but need not be accompanied by an Opinion of Counsel), as shall be specified in an Officers’ Certificate with respect thereto to the Trustee, as the Issuer’s agent for such purpose, to be exchanged, in whole or in part, for definitive Securities as described above without charge.
 
The Trustee shall authenticate and make available for delivery, in exchange for each portion of such surrendered Global Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such Global Security to be exchanged, provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities of the same series to be redeemed and ending at the close of business on the day of the mailing of a notice of redemption of Securities.
 
Promptly following any such exchange in part, such Global Security shall be returned by the Trustee to such Depository in accordance with the instructions of the Issuer referred to above.  If a Security is issued in exchange for any portion of a Global Security after the close of business at the office or agency for such Security where such exchange occurs on or after (i) any regular record date for such Security and before the opening of business at such office or agency on the next interest payment date, or (ii) any subsequent record date, established pursuant to Section 2.07, for such Security and before the opening of business at such office or agency on the related proposed date for payment of interest or defaulted interest, as the case may be, interest shall not be payable on such interest payment date or proposed date for payment, as the case may be, to such beneficial holder, but shall be payable on such interest payment date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such Global Security shall be payable in accordance with the provisions of this Indenture.
 
Section 2.09 .  Mutilated, Defaced, Destroyed, Lost and Stolen Securities.  In case any temporary or definitive Security shall become mutilated, defaced or be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the written request of any officer of the Issuer, the Trustee shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously Outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen.  In every case the applicant for a substitute Security shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
 
Upon the issuance of any substitute Security, the Issuer and the Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.  In case any Security which has matured or is about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their
 
11
 
satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
 
Every substitute Security of any series issued pursuant to the provisions of this section by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated and delivered hereunder.  All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
 
Section 2.10 .  Cancellation of Securities; Destruction Thereof.  All Securities surrendered for payment, redemption, registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be delivered to the Trustee for cancellation or, if surrendered to the Trustee, shall be canceled by it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture.  The Trustee shall destroy canceled Securities held by it and upon the written request of the Issuer deliver a certificate of destruction to the Issuer.  If the Issuer shall acquire any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
 
Section 2.11 .  Temporary Securities.  Pending the preparation of definitive Securities for any series, the Issuer may execute and the Trustee shall authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee, which may be in the form of a global Security).  Temporary Securities of any series shall be issuable without coupons, of any authorized denomination, and, subject to the preceding sentence, substantially in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Issuer with the concurrence of the Trustee.  Temporary Securities may contain such reference to any provisions of this Indenture as may be appropriate.  Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities.  Without
 
12
 
unreasonable delay the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary Securities of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series a like aggregate principal amount of definitive Securities of the same series of authorized denominations.  Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series.
 
Section 2.12. Global Securities. Unless otherwise provided pursuant to a resolution of the Board of Directors or in an indenture supplemental hereto, the Securities shall be issued in global form.  Any Security in global form shall provide that it or any number of such Securities shall represent the aggregate amount of all Outstanding Securities of such series (or such lesser amount as is permitted by the terms thereof) from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect any purchase, redemption, exchange or cancellation.  Any endorsement of any Security in global form to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of Outstanding Securities represented thereby shall be made in such manner and by such Person as shall be specified therein.
 
The Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person specified therein.  The Issuer, the Trustee and any agent of the Issuer and the Trustee shall treat as the Holder, the Holder of such Global Security in registered form.
 
Any Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
 
“This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depository or a nominee of a Depository.  This Security is exchangeable for Securities registered in the name of a Person other than the Depository or its nominee only in the limited circumstances described in the Indenture, and no transfer of this Security (other than a transfer of this Security as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository) may be registered except in such limited circumstances.”
 
ARTICLE 3
Covenants of the Issuer and the Trustee
 
Section 3.01 .  Payment of Principal and Interest.  The Issuer covenants and agrees for the benefit of the Holders each series of Securities that it will duly and punctually pay or cause to be paid the principal of, and interest on, each of the Securities of such series at the place or places, at the respective times and in the manner provided in such Securities.  Each installment of interest on the Securities of any series may be paid by wire transfer in immediately available funds to a U.S. dollar account maintained by a Holder of Securities or its nominee, or upon the written order of the Holders of Securities entitled thereto as they shall appear on the registry books of the Issuer.
 
Section 3.02 .  Offices for Payments, etc.  So long as any of the Securities remain Outstanding, the Issuer will maintain the following for each series: an office or agency (a) where the Securities may be presented for payment, (b) where the Securities may be presented for registration of transfer and for exchange as in this Indenture provided and (c) where notices and demands to or upon the Issuer in respect of the Securities or of this Indenture may be served.  The Issuer will give to the Trustee written notice of the location of any such office or agency and of any change of location thereof.  Unless otherwise specified in accordance with Section 2.03, the Issuer shall designate the office to be maintained by it for each such purpose.  In case the Issuer shall fail to so designate or maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the Corporate Trust Office.
 
Section 3.03 .  Appointment to Fill a Vacancy in Office of Trustee.  The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 5.09, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder.
 
13
 
Section 3.04 .  Paying Agents.  Whenever the Issuer shall appoint a paying agent other than the Trustee with respect to the Securities of any series other than the initial paying agent appointed under an indenture supplemental hereto, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,
 
(a) that it will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities of such series or of the Trustee,
 
(b) that it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make any payment of the principal of or interest on the Securities of such series when the same shall be due and payable, and
 
(c) pay any such sums so held in trust by it to the Trustee upon the Trustee’s written request at any time during the continuance of the failure referred to in clause 3.04(b) above.
 
The Issuer will, on or prior to 10:00 AM New York time, or at any such other time and date as may be agreed by the Issuer and paying agent, on each due date of the principal of or interest on the Securities of such series, deposit with the paying agent a sum sufficient to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly notify the Trustee of any failure to take such action.
 
If the Issuer shall act as its own paying agent with respect to the Securities of any Series, it will, on or before each due date of the principal of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series a sum sufficient to pay such principal or interest so becoming due.  The Issuer will promptly notify the Trustee of any failure to take such action.
 
Anything in this section to the contrary notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
 
14
 
Anything in this section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this section is subject to the provisions of Section 9.03 and 9.04.
 
Section 3.05 .  Certificate of the Issuer.  The Issuer will furnish to the Trustee, within 120 days after the end of each fiscal year of the Issuer, a brief certificate (which need not comply with Section 10.05) from the principal executive, financial or accounting officer of the Issuer as to his or her knowledge of the Issuer’s compliance with all conditions and covenants under the Indenture (such compliance to be determined without regard to any period of grace or requirement of notice provided under the Indenture).
 
Section 3.06 .  Securityholders Lists.  If and so long as the Trustee shall not be the Security registrar for the Securities of any series, the Issuer will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of the Securities of such series pursuant to Section 312 of the Trust Indenture Act of 1939 (a) semi-annually not more than 15 days after each record date for the payment of interest on such Securities, as hereinabove specified, as of such record date and on dates to be determined pursuant to Section 2.03 for non-interest bearing securities in each year, and (b) at such other times as the Trustee may request in writing, within thirty days after receipt by the Issuer of any such request as of a date not more than 15 days prior to the time such information is furnished.
 
Section 3.07 .  Reports by the Issuer.  The Issuer covenants to file with the Trustee, within 15 days after the Issuer is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports which the Issuer may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934.
 
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate).
 
Section 3.08 .  Reports by the Trustee.  Any Trustee’s report required under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on or before July 15 in each year following the date hereof, so long as any Securities are Outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 nor less than 45 days prior thereto.
 
15
 
ARTICLE 4
Remedies of the Trustee and Securityholders on Event of Default
 
Section 4.01 .  Event of Default; Acceleration of Maturity; Waiver of Default. “Event of Default” with respect to Securities of any series wherever used herein, means each one of the following events which shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
 
(a) default in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or
 
(b) default in the payment of all or any part of the principal on any of the Securities of such series as and when the same shall become due and payable either at maturity, upon redemption, by declaration or otherwise; or
 
(c) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series; or
 
(d) default in the performance, or breach, of any covenant or warranty of the Issuer in respect of the Securities of such series (other than a covenant or warranty in respect of the Securities of such series a default in whose performance or whose breach is elsewhere in this section specifically dealt with), and continuance of such default or breach for a period of 30 days after there has been given, by registered or certified mail, to the Issuer by the Trustee or to the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
 
(e) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Issuer in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
 
(f) the Issuer shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or
 
16
 
consent to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or for any substantial part of its property, or make any general assignment for the benefit of creditors; or
 
(g) any other Event of Default provided in the supplemental indenture or resolution of the Board of Directors under which such series of Securities is issued or in the form of Security for such series.
 
If an Event of Default described in clauses 4.01(a), 4.01(b), 4.01(c) or 4.01(d) above occurs and is continuing, then, and in each and every such case, unless the principal of all of the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable.  If an Event of Default described in clause 4.01(e) or 4.01(f) occurs and is continuing, then and in each and every such case, the entire principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities then Outstanding and interest accrued thereon, if any, shall be due and payable immediately.
 
The foregoing provisions, however, are subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of such series and the principal of any and all Securities of such series which shall have become due otherwise than by acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series to the date of such payment or deposit) and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of negligence or bad faith, and if any and all Events of Default under the Indenture,
 
17
 
other than the non-payment of the principal and interest of Securities which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein—then and in every such case the Holders of a majority in aggregate principal amount of all the Securities of such series, each series voting as a separate class, then Outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults with respect to such series and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
 
For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
 
Section 4.02 .  Collection of Indebtedness by Trustee; Trustee May Prove Debt.  The Issuer covenants that (a) in case default shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default shall have continued for a period of 30 days or (b) in case default shall be made in the payment of all or any part of the principal of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities of such series or upon any redemption or by declaration or otherwise—then upon demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due and payable on all Securities of such series for principal or interest, as the case may be (with interest to the date of such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of its negligence or bad faith.
 
18
 
Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on the Securities of any series to the Holders, whether or not the principal of and interest on the Securities of such series shall be overdue.
 
In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon such Securities and collect in the manner provided by law out of the property of the Issuer or other obligor upon such Securities, wherever situated, the moneys adjudged or decreed to be payable.
 
In case there shall be pending proceedings relative to the Issuer or any other obligor upon the Securities under Title 11 of the United States Code or any other applicable Federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor, or in case of any other comparable judicial proceedings relative to the Issuer or other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such other obligor, the Trustee, irrespective of whether the principal of any Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise:
 
(a) to file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Securities of any series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of the Securityholders allowed in any judicial proceedings relative to the Issuer or other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such other obligor,
 
19
 
(b) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of the Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing similar functions in comparable proceedings, and
 
(c) to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith and all other amounts due to the Trustee or any predecessor Trustee pursuant to Section 5.06.
 
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.
 
All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys, shall be for the ratable benefit of the Holders of the Securities in respect of which such action was taken.
 
In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Securities in respect to which such action was taken, and it shall not be necessary to make any Holders of such Securities parties to any such proceedings.
 
20
 
Section 4.03 .  Application of Proceeds.  Any moneys collected by the Trustee pursuant to this Article in respect of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal or interest, upon presentation of the several Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities of like series if only partially paid, or upon surrender thereof if fully paid:
 
FIRST:  To the payment of costs and expenses applicable to such series in respect of which monies have been collected, including reasonable compensation to the Trustee and each predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith, and all other amounts due to the Trustee or any predecessor Trustee pursuant to Section 5.06;
 
SECOND:  In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
 
THIRD: In case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest, with interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest or Yield to Maturity, without preference or priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity over principal, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and
 
21
 
FOURTH:  To the payment of the remainder, if any, to the Issuer or any other person lawfully entitled thereto.
 
Section 4.04 .  Suits for Enforcement.  In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
 
Section 4.05 .  Restoration of Rights on Abandonment of Proceedings.  In case the Trustee or any Holder shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee or such Holder, then and in every such case the Issuer, the Trustee and such Holder shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Securityholders shall continue as though no such proceedings had been taken.
 
Section 4.06 .  Limitations on Suits by Securityholder.  No Holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such indemnity satisfactory to it as it may require against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 4.09; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities of any series shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce
 
22
 
any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series.  For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
 
Section 4.07 .  Unconditional Right of Securityholders to Institute Certain Suits.  Notwithstanding any other provision in this Indenture and any provision of any Security, the right of any Holder of any Security to receive payment of the principal of and interest on such Security on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
 
Section 4.08 .  Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.  Except as provided in Section 4.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
 
No delay or omission of the Trustee or of any Securityholder to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and, subject to Section 4.06, every power and remedy given by this Indenture or by law to the Trustee or to the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
 
Section 4.09 .  Control by Securityholders.  The Holders of a majority in aggregate principal amount of the Securities of each series affected (with each series voting as a separate class) at the time Outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Securities of such series by this Indenture; provided that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture and provided further that (subject to the provisions of Section 5.01) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors, the executive committee, or a trust committee of directors or
 
23
 
responsible officers of the Trustee shall determine that the action or proceedings so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the Securities of all series so affected not joining in the giving of said direction, it being understood that (subject to Section 5.01) the Trustee shall have no duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders.
 
Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders.
 
Section 4.10 .  Waiver of Past Defaults.  Prior to a declaration of the acceleration of the maturity of the Securities of any series as provided in Section 4.01, the Holders of a majority in aggregate principal amount of the Securities of such series at the time Outstanding (each such series voting as a separate class) may on behalf of the Holders of all the Securities of such series waive any past default or Event of Default described in clause 4.01(d), 4.01(e), 4.01(f) or 4.01(g), except a default in respect of a covenant or provision hereof which cannot be modified or amended without the consent of each Holder affected as provided in Section 7.02.  In the case of any such waiver, the Issuer, the Trustee and the Holders of the Securities of each series affected shall be restored to their former positions and rights hereunder, respectively.
 
Upon any such waiver, such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
 
Section 4.11 .  Trustee to Give Notice of Default, But May Withhold in Certain Circumstances.  The Trustee shall give to the Securityholders of any series, as the names and addresses of such Holders appear on the registry books, notice by mail of all defaults known to the Trustee which have occurred with respect to such series, such notice to be transmitted within 45 days after the occurrence thereof, unless such defaults shall have been cured or waived before the giving of such notice (the term “default” or “defaults” for the purposes of this section being hereby defined to mean any event or condition which is, or with notice or lapse of time or both would become, an Event of Default); provided that, except in the case of default in the payment of the principal of or interest on any of the Securities of such series, or in the payment of any sinking or purchase fund installment with respect to the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the
 
24
 
executive committee, or a trust committee of directors or trustees and/or responsible officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Securityholders of such series.
 
Section 4.12 .  Right of Court to Require Filing of Undertaking to Pay Costs.  All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder or group of Securityholders of any series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in the case of any suit relating to or arising under clauses 4.01(d) if the suit relates to Securities of more than one but less than all series, 10% in aggregate principal amount of Securities Outstanding affected thereby, or in the case of any suit relating to or arising under clauses 4.01(d) (if the suit relates to all the Securities then Outstanding), 4.01(e) or 4.01(f), 10% in aggregate principal amount of all Securities Outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or interest on any Security on or after the due date expressed in such Security.
 
 
ARTICLE 5
Concerning the Trustee
 
Section 5.01 .  Duties and Responsibilities of the Trustee; During Default; Prior to Default.  With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a particular series and after the curing or waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture.  In case an Event of Default with respect to the Securities of a series has occurred (which has not been cured or waived) the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
 
25
 
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that
 
(a) prior to the occurrence of an Event of Default with respect to the Securities of any series and after the curing or waiving of all such Events of Default with respect to such series which may have occurred:
 
(i) the duties and obligations of the Trustee with respect to the Securities of any Series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
 
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such statements, certificates, opinions or other documents or instruments which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any statement, certificate, opinion or other document or instrument furnished by the Issuer hereunder.
 
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
 
(c) the Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with this Indenture or at the direction of the Holders pursuant to Section 4.09 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising or omitting to exercise any trust or power conferred upon the Trustee, under this Indenture.
 
26
 
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such liability is not reasonably assured to it.
 
The provisions of this Section 5.01 are in furtherance of and subject to Sections 315 and 316 of the Trust Indenture Act of 1939.
 
Section 5.02 .  Certain Rights of the Trustee.  In furtherance of and subject to the Trust Indenture Act of 1939, and subject to Section 5.01:
 
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officers’ Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
 
(b) any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Issuer;
 
(c) the Trustee may consult with counsel and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
 
(d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture or to institute, conduct or defend any litigation hereunder or in connection hereto at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred therein or thereby;
 
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;
 
27
 
(f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Securities of all series affected then Outstanding; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require indemnity satisfactory to it against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer upon demand;
 
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys not regularly in its employ including, but not limited to an authentication agent, paying agent, transfer agent or registrar, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder;
 
(h) the Trustee shall not be deemed to have notice or be charged with knowledge of any default or Event of Default with respect to the Securities, unless either (1) a Responsible Officer shall have actual knowledge of such default or Event of Default or (2) written notice of such default or Event of Default shall have been given to a Responsible Officer by the Issuer or by any Holder of the Securities;
 
(i) the permissive rights of the Trustee enumerated herein shall not be construed as duties;
 
(j) the Trustee shall not be required to give any bond or surety in respect of the execution of its obligations under this Indenture;
 
(k) the Trustee shall not be responsible for delays or failures in performance resulting from acts beyond its control, such acts including, but not limited to, acts of God, strikes, lockouts, riots and acts of war; and
 
(l) anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost
 
28
 
profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
 
Section 5.03 .  Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof.  The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same.  The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities.  The Trustee shall not be accountable for the use or application by the Issuer of any of the Securities or of the proceeds thereof.
 
Section 5.04 .  Trustee and Agents May Hold Securities; Collections, etc.  The Trustee or any agent of the Issuer or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee or such agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were not the Trustee or such agent.
 
Section 5.05 .  Moneys Held by Trustee.  Subject to the provisions of Section 9.04 hereof, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law.  Neither the Trustee nor any agent of the Issuer or the Trustee shall be under any liability for interest on any moneys received by it hereunder.
 
Section 5.06 .  Compensation and Indemnification of Trustee and Its Prior Claim.  The Issuer covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ) except to the extent any such expense, disbursement or advance may arise from its negligence or bad faith.  The Issuer also covenants to indemnify the Trustee and each predecessor Trustee for, and to hold it harmless against, any loss, liability or expense arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability in connection with the exercise or performance of any of its powers or duties
 
29
 
hereunder, except to the extent such loss liability or expense is due to the negligence or bad faith of the Trustee or such predecessor Trustee.  The obligations of the Issuer under this section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the resignation or removal of the Trustee and the satisfaction and discharge of this Indenture.  Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities, and the Securities are hereby subordinated to such senior claim.
 
Section 5.07 .  Right of Trustee to Rely on Officers’ Certificate, etc.  Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
 
Section 5.08 .  Persons Eligible for Appointment as Trustee.  The Trustee for each series of Securities hereunder shall at all times be a corporation or association having a combined capital and surplus of at least $50,000,000, and which is eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act of 1939.  If such corporation or association publishes reports of condition at least annually, pursuant to law or to the requirements of a Federal, State or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
 
Section 5.09 .  Resignation and Removal; Appointment of Successor Trustee.  (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of resignation to the Issuer and by mailing notice thereof by first class mail to Holders of the applicable series of Securities at their last addresses as they shall appear on the Security register.  Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be
 
30
 
delivered to the resigning Trustee and one copy to the successor trustee or trustees.  If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning trustee may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 4.12, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
 
(b) In case at any time any of the following shall occur:
 
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act of 1939 with respect to any series of Securities after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months; or
 
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act of 1939 and shall fail to resign after written request therefor by the Issuer or by any Securityholder; or
 
(iii) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
 
then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
 
31
 
(c) The Holders of a majority in aggregate principal amount of the Securities of each series at the time Outstanding may at any time remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence provided for in Section 6.01 of the action in that regard taken by the Securityholders.
 
(d) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 5.09 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 5.10.
 
Section 5.10 .  Acceptance of Appointment by Successor .  Any successor trustee appointed as provided in Section 5.09 shall execute and deliver to the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 9.04, pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations.  Upon request of any such successor trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers.  Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 5.06.
 
If a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor Trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
 
32
 
such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts under separate indentures.
 
Upon acceptance of appointment by any successor trustee as provided in this Section 5.10, the Issuer shall mail notice thereof by first-class mail to the Holders of Securities of any series for which such successor trustee is acting as trustee at their last addresses as they shall appear in the Security register.  If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding sentence may be combined with the notice called for by Section 5.09.  If the Issuer fails to mail such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Issuer.
 
Section 5.11 .  Merger, Conversion, Consolidation or Succession to Business of Trustee.  Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Person succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such Person shall be eligible under the provisions of Section 5.08, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
 
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificate shall have the full force which it is anywhere in the Securities of such series or in this Indenture provided that the certificate of the Trustee shall have such full force; provided, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities of any series in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
 
Section 5.12 .  Indenture Not Creating Potential Conflicting Interests For The Trustee.  The following indenture is hereby specifically described for the purposes of Section 310(b)(1) of the Trust Indenture Act of 1939:  Indenture dated as of May 28, 2008 between Patriot Coal Corporation, as Issuer, and U.S. Bank, National Association, as Trustee, for 3.25% Convertible Senior Notes due 2013.
 
33
 
 
ARTICLE 6
Concerning the Securityholders
 
Section 6.01 .  Evidence of Action Taken by Securityholders.  Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal amount of the Securityholders of any or all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Securityholders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee.  Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 5.01 and 5.02) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
 
Section 6.02 .  Proof of Execution of Instruments and of Holding of Securities; Record Date.  Subject to Sections 5.01 and 5.02, the execution of any instrument by a Securityholder or his agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.  The holding of Securities shall be proved by the Security register or by a certificate of the registrar thereof.  The Issuer may set a record date for purposes of determining the identity of Holders of Securities of any series entitled to vote or consent to any action referred to in Section 6.01, which record date may be set at any time or from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than 60 days nor less than five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other provisions hereof, only Holders of Securities of such series of record on such record date shall be entitled to so vote or give such consent or revoke such vote or consent.
 
Section 6.03 .  Holders to Be Treated as Owners.  The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem and treat the person in whose name any Security shall be registered upon the Security register for such series as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary.  All such payments so made to any such person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security.
 
No holder of any beneficial interest in any Global Security held on its behalf by a Depository shall have any rights under this Indenture with respect to such Global Security, and such Depository may be treated by the Issuer, the Trustee, and any agent of the Issuer or the Trustee as the owner of such Global Security for all purposes whatsoever.  None of the Issuer, the Trustee, any Paying Agent or the registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
 
34
 
Section 6.04 .  Securities Owned by Issuer Deemed Not Outstanding.  In determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series have concurred in any direction, consent, waiver or other instrument or action by Securityholders under this Indenture, Securities which are owned by the Issuer or any other obligor on the Securities with respect to which such determination is being made or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver or other instrument or action by Securityholders only Securities which a Responsible Officer of the Trustee knows are so owned shall be so disregarded.  Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Issuer or any other obligor upon the Securities or any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities.  In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice.  Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described persons; and, subject to Sections 5.01 and 5.02, the Trustee shall be entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination.
 
Section 6.05 .  Right of Revocation of Action Taken.  At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 6.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security.  Except as aforesaid any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto is made upon any such Security.  Any action taken by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may
 
35
 
be, specified in this Indenture in connection with such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.
 
 
ARTICLE 7
Supplemental Indentures
 
Section 7.01.  Supplemental Indentures Without Consent of Securityholders.  The Issuer, when authorized by a resolution of its Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:
 
(a) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture as the Board of Directors may deem necessary or desirable and which shall not adversely affect the interests of the Holders of the Securities in any material respect;
 
(b) to evidence the succession of another corporation to the Issuer, or successive successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Issuer pursuant to Article 8;
 
(c) to add to the covenants of the Issuer such further covenants, restrictions, conditions or provisions as its Board of Directors and the Trustee shall consider to be for the protection of the Holders of Securities, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, that in respect of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;
 
36
 
(d) to add guarantors with respect to the Securities of one or more series;
 
(e) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of one or more series any property or assets;
 
(f) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03;
 
(g) to maintain the qualification of the Indenture under the Trust Indenture Act of 1939;
 
(h) to make any change that does not adversely affect the rights of any Holder; and
 
(i) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 5.10.
 
The Trustee is hereby authorized to join with the Issuer in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
 
Any supplemental indenture authorized by the provisions of this section may be executed without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 7.02.
 
Section 7.02 .  Supplemental Indentures With Consent of Securityholders.  With the consent (evidenced as provided in Article 6) of the Holders of not less than a majority of the aggregate principal amount of the Securities at the time Outstanding of a series affected by such supplemental indenture, the Issuer, when authorized by a resolution of its Board of Directors, and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of such series; provided, that no such supplemental indenture shall (a) extend the
 
37
 
final maturity of any Security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or alter or waive any amount payable on redemption thereof or alter or waive the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 4.01 or the amount thereof provable in bankruptcy pursuant to Section 4.02, or change the currency in which principal or interest is paid, or impair or affect the right of any Securityholder to institute suit for the payment thereof or, if the Securities provide therefor, any right of repayment at the option of the Securityholder without the consent of the Holder of each Security of such series so affected, or waive a payment default with respect to the Securities or any guarantee, or adversely affect the ranking of the Securities of any series, or release any guarantor from any of its obligations under its guarantee or the Indenture, except in compliance with the terms of the Indenture, (b) reduce the aforesaid percentage of Securities of such series, the consent of the Holders of which is required for any amendment, supplemental indenture, or waiver or consent to take any action without the consent of the Holders of each Security of such series so affected.
 
Upon the request of the Issuer, accompanied by a copy of a resolution of the Board of Directors certified by the secretary or an assistant secretary of the Issuer authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid and other documents, if any, required by Section 6.01, the Trustee shall join with the Issuer in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
 
It shall not be necessary for the consent of the Securityholders under this section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
 
Promptly after the execution by the Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Issuer shall mail a notice thereof by first class mail to the Holders of Securities of each series affected thereby at their addresses as they shall appear on the registry books of the Issuer, setting forth in general terms the substance of such supplemental indenture.  Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
 
Section 7.03 .  Effect of Supplemental Indenture.  Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the
 
38
 
respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Issuer and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
 
Section 7.04 .  Documents to Be Given to Trustee.  The Trustee, subject to the provisions of Sections 5.01 and 5.02, may receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article 7 are authorized or permitted by this Indenture and complies with the applicable provisions of this Indenture.
 
Section 7.05 .  Notation on Securities in Respect of Supplemental Indentures.  Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for such series as to any matter provided for by such supplemental indenture or as to any action taken at any such meeting.  If the Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
 
 
ARTICLE 8
Consolidation, Merger, Sale or Conveyance
 
Section 8.01 .  Issuer May Consolidate, etc, on Certain Terms.  The Issuer covenants that it will not consolidate or combine with or merge with or into or, directly or indirectly, sell, assign, convey, lease, transfer or otherwise dispose of all or substantially all of its properties and assets to any Person or Persons in a single transaction through a series of transactions, unless (i) either the Issuer shall be the continuing Person, or the successor Person shall be a corporation organized and existing under the laws of the United States of America or any State or territory thereof and shall expressly assume all the Issuer’s obligations under the Indenture, including but not limited to, the due and punctual payment of the principal of and interest on all the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed or observed by the Issuer, by, if required by law to effectuate such assumption, a supplemental indenture, in form and substance satisfactory to the Trustee, executed and delivered to the Trustee by such
 
39
 
Successor Person, and (ii) immediately after giving effect to such transaction or series of transactions on a pro forma basis, no default has occurred and is continuing.
 
Section 8.02 .  Successor Corporation Substituted.  In case of any such consolidation, combination, merger, sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of the Issuer’s assets and following such an assumption by the successor Person, such successor Person shall succeed to and be substituted for the Issuer, with the same effect as if it had been named herein.  Such successor Person may cause to be signed, and may issue either in its own name or in the name of the Issuer prior to such succession any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Issuer and delivered to the Trustee; and, upon the order of such successor Person instead of the Issuer and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Issuer to the Trustee for authentication, and any Securities which such successor Person thereafter shall cause to be signed and delivered to the Trustee for that purpose.  All of the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof.
 
In case of any such consolidation, combination, merger, sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of the Issuer’s assets, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
 
Upon any such consolidation, combination, merger, sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of the Issuer’s assets other than a conveyance by way of lease or any sale, assignment, conveyance, lease, transfer or other disposition to subsidiaries of the Issuer, the Issuer or any successor Person which shall theretofore have become such in the manner described in this Article shall be discharged from all obligations and covenants under this Indenture and the Securities.
 
Section 8.03 .  Opinion of Counsel to Trustee.  The Trustee, subject to the provisions of Sections 5.01 and 5.02, shall have received an Officers’ Certificate and Opinion of Counsel, prepared in accordance with Section 10.05, as conclusive evidence that any such consolidation, combination, merger, assignment, conveyance, lease, transfer or other disposition of all or substantially all of the Issuer’s assets, and any such assumption, and any such supplemental indenture, if any, comply with the applicable provisions of this Indenture and that all
40
 
 
conditions precedent in the Indenture relating to the transaction or series of transactions have been satisfied.
 
 
ARTICLE 9
Satisfaction and Discharge of Indenture; Unclaimed Moneys
 
Section 9.01 .  Satisfaction and Discharge of Indenture.  If at any time (a) the Issuer shall have delivered to the Trustee for cancellation all securities of any series theretofore authenticated (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.09) or (b) (i) all the securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year and the Issuer has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the Issuer’s name, at the Issuer’s expense, and (ii) the Issuer shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds sufficient funds to pay and discharge the entire Indebtedness on such series of Securities to pay principal and interest (other than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with Section 9.04) at maturity or upon redemption all Securities of such series (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.09) not theretofore delivered to the Trustee for cancellation, including principal and interest due or to become due on or prior to such date of maturity as the case may be, and if, in any such case, the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer with respect to Securities of such series, then this Indenture shall cease to be of further effect with respect to Securities of such series, and the Trustee, on demand of the Issuer accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute proper instruments stating that all conditions precedent under the Indenture relating to the satisfaction and discharge of the Indenture have been complied with; provided, that the rights of Holders of the Securities to receive amounts in respect of principal of and interest on the Securities held by them shall not be delayed longer than required by then-applicable mandatory rules or policies of any securities exchange upon which the Securities are listed.  The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities of such series.
 
Section 9.02 .  Application by Trustee of Funds Deposited for Payment of Securities.  Subject to Section 9.04, all moneys deposited with the Trustee pursuant to Section 9.01 shall be held in trust and applied by it to the payment,
 
41
 
either directly or through any paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular Securities of such series for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required by law.
 
Section 9.03 .  Repayment of Moneys Held by Paying Agent.  In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.
 
Section 9.04 .  Return of Moneys Held by Trustee and Paying Agent Unclaimed for Three Years.  Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal of or interest on any Security of any series and not applied but remaining unclaimed for three years after the date upon which such principal or interest shall have become due and payable, shall, upon the written request of the Issuer and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of the Security of such series shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Issuer for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.
 
 
ARTICLE 10
Miscellaneous Provisions
 
Section 10.01 .  Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual Liability.  No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past, present or future stockholder, officer or director, as such, of the Issuer or of any successor, either directly or through the Issuer or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.
 
42
 
Section 10.02 .  Provisions of Indenture for the Sole Benefit of Parties and Securityholders.  Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities.
 
Section 10.03 .  Successors and Assigns of Issuer Bound by Indenture.  All the covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.
 
Section 10.04 .  Notices and Demands on Issuer, Trustee and Securityholders.  Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Issuer may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to Patriot Coal Corporation 12312 Olive Boulevard, St. Louis, Missouri 63141.  Any notice, direction, request or demand by the Issuer or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if in writing and given or made at the Corporate Trust Office.
 
Where this Indenture provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Security register.  In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.  Where this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
 
In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer and Securityholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
 
43
 
Section 10.05 .  Officers’ Certificates and Opinions of Counsel; Statements to Be Contained Therein.  Upon any application or demand by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel such action is authorized or permitted by the Indenture and all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
 
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
 
Any certificate, statement or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.  Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, information with respect to which is in the possession of the Issuer, upon the certificate, statement or opinion of or representations by an officer or officers of the Issuer, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
 
Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based
 
44
 
as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
 
Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent.
 
Section 10.06 .  Payments Due on Saturdays, Sundays and Holidays.  If the date of maturity of interest on or principal of the Securities of any series or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
 
Section 10.07 .  Conflict of any Provision of Indenture with Trust Indenture Act of 1939.  If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939 (an “incorporated provision”), such incorporated provision shall control.
 
Section 10.08 .  New York Law to Govern.  This Indenture and each Security shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such State, except as may otherwise be required by mandatory provisions of law.
 
Section 10.09 .  Counterparts.  This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
 
Section 10.10 .  Effect of Headings.  The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
 
 
ARTICLE 11
Redemption of Securities and Sinking Funds
 
Section 11.01 .  Applicability of Article.  The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.03 for Securities of such series.
 
45
 
Section 11.02 .  Notice of Redemption; Partial Redemptions.  Notice of redemption to the Holders of Securities of any series to be redeemed as a whole or in part at the option of the Issuer shall be given by mailing notice of such redemption by first class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities of such series at their last addresses as they shall appear upon the registry books.  Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice.  Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.
 
The notice of redemption to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue.  In case any Security of a series is to be redeemed in part only the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
 
The notice of redemption of Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name and at the expense of the Issuer.
 
At least one Business Day prior to the redemption date specified in the notice of redemption given as provided in this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption.  If less than all the Outstanding Securities of a series are to be redeemed, the Issuer will deliver to the Trustee at least 70 days prior to the date fixed for redemption an Officers’ Certificate stating the aggregate principal amount of Securities to be redeemed.
 
If less than all the Securities of a series are to be redeemed, the Trustee shall redeem such Securities pro rata, or shall select, in such manner as it shall
 
46
 
deem appropriate and fair, Securities of such Series to be redeemed in whole or in part.  Securities may be redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any multiple thereof.  The Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed.  For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
 
Section 11.03 .  Payment of Securities Called for Redemption.  If notice of redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest on the Securities or portions of Securities so called for redemption shall cease to accrue and, except as provided in Sections 5.05 and 9.04, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption.  On presentation and surrender of such Securities at a place of payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided that any semiannual payment of interest becoming due on the date fixed for redemption shall be payable to the Holders of such Securities registered as such on the relevant record date subject to the terms and provisions of Section 2.04 hereof.
 
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by the Security.
 
Upon presentation of any Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series , of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented.
 
47
 
Section 11.04 .  Exclusion of Certain Securities from Eligibility for Selection for Redemption.  Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized officer of the Issuer and delivered to the Trustee at least 40 days prior to the last date on which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically identified in such written statement directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer.
 
Section 11.05 .  Mandatory and Optional Sinking Funds.  The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”.  The date on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment date”.
 
In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section 2.07, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision contained in the terms of such series.  Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption price specified in such Securities.
 
On or before the sixtieth day next preceding each sinking fund payment date for any series, the Issuer will deliver to the Trustee a written statement (which need not contain the statements required by Section 10.05) signed by an authorized officer of the Issuer (a) specifying the portion of the mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series, (b) stating that none of the Securities of such series has theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of Default with respect to such series have occurred (which have not been waived or cured) and are continuing and (d) stating whether or not the Issuer intends to exercise its right to make an optional sinking fund payment with respect to such series and, if so, specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or before the next
 
48
 
succeeding sinking fund payment date.  Any Securities of such series to be credited and required to be delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with such written statement (or reasonably promptly thereafter if acceptable to the Trustee).  Such written statement shall be irrevocable and upon its receipt by the Trustee the Issuer shall become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date.  Failure of the Issuer, on or before any such sixtieth day, to deliver such written statement and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to such series as provided in this Section.
 
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Issuer shall so request) with respect to the Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for redemption.  If such amount shall be $50,000 or less and the Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 is available.  The Trustee shall select, in the manner provided in Section 11.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of the serial numbers of the Securities of such series (or portions thereof) so selected.  Securities of any series which are (a) owned by the Issuer or an entity known by the Trustee to be directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer, as shown by the Security register, and not known to the Trustee to have been pledged or hypothecated by the Issuer or any such entity or (b) identified in an Officers’ Certificate at least 60 days prior to the sinking fund payment date as being beneficially owned by, and not pledged or hypothecated by, the Issuer or an entity directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer shall be excluded from Securities of such series eligible for selection for redemption.  The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given in substantially the manner provided in Section 11.02 (and with the effect provided in Section 11.03) for the redemption of Securities of
 
49
 
such series in part at the option of the Issuer.  The amount of any sinking fund payments not so applied or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment for such series and, together with such payment, shall be applied in accordance with the provisions of this Section.  Any and all sinking fund moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity.
 
At least one Business Day before each sinking fund payment date, the Issuer shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.
 
The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities for such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of any Event of Default except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer a sum sufficient for such redemption.  Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article 4 and held for the payment of all such Securities.  In case such Event of Default shall have been waived as provided in Section 4.09 or the default cured on or before the sixtieth day preceding the sinking fund payment date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this section to the redemption of such Securities.
 
 
ARTICLE 12
Defeasance
 
Section 12.01 .  Issuer’s Option to Effect Defeasance.  The Issuer may at its option, by resolution of the Board of Directors, at any time, elect to defease the Issuer’s obligations under the Outstanding Securities of any series and this Indenture in accordance with either Section 12.02 or Section 12.03 upon compliance with the conditions set forth below in this Article Twelve.
 
50
 
Section 12.02 .  Defeasances and Discharge.  Upon the Issuer’s exercise of the option set forth in Section 12.01 applicable to this Section, and after the expiration of the 91-day (or other) period referred to in clause (4) of Section 12.04, the Issuer shall be deemed to have been discharged from its obligations with respect to the Outstanding Securities of such series on the date the conditions set forth below are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under the Securities of such series and this Indenture insofar as the Securities of such series are concerned (and the Trustee, upon an Issuer Order and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of Outstanding Securities of such series to receive, solely from the trust fund described in Section 12.04 and as more fully set forth in such Section, payments in respect of the principal of and interest on the Securities of such series when such payments are due, (B) the Issuer’s obligations with respect to such Securities of such series under Sections Section 2.08, Section 2.09 and Section 3.02, (C) the rights, powers, trusts, duties, and immunities of the Trustee hereunder, including but not limited to Article Five, (D) the Issuer’s right of optional redemption, if any, (E) the rights of Holders to receive mandatory sinking fund payments, if any, and (F) this Article Twelve. Subject to compliance with this Article Twelve, the Issuer may exercise its option under this Section 12.02 notwithstanding the prior exercise of its option under Section 12.03 with respect to the Securities of such series.
 
Section 12.03 .  Covenant Defeasance.  Upon the Issuer’s exercise of the option set forth in Section 12.01 applicable to this Section, and after the expiration of the 91-day (or other) period referred to in clause (4) of Section 12.04, the Issuer shall be released from its obligations under Sections 3.05, 4.01(e), 4.01(f), 4.01(g) (if Section 4.01(g) is specified as applicable to the Securities of such series) and 8.01, with respect to the Outstanding Securities of any series on and after the date the conditions set forth below are satisfied with respect to such series (hereinafter, “covenant defeasance”). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of such series, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, and such omission to comply shall not constitute a default or Event of Default under Section 4.01(d), but, except as specified above, the remainder of this Indenture and the Securities of such series shall be unaffected thereby.
 
51
 
Section 12.04 .  Conditions to Defeasance.  The following shall be the conditions to application of either Section 12.02 or Section 12.03 to the Outstanding Securities of any series.
 
(1) The Issuer shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of Securities of such series (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest, if any, in respect thereof in accordance with their terms will provide money in an amount, or (C) a combination, in each case sufficient without reinvestment, in the opinion of an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, all of the principal and interest at due date or maturity or if the Issuer has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the Issuer’s name and at the Issuer’s expense, the redemption date.
 
(2) In the case of an election under Section 12.02, the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that, under then applicable federal income tax law, the Holders of the Outstanding Securities of such series will not recognize gain or loss for federal income tax purposes as a result of the deposit, defeasance and discharge to be effected and will be subject to the same federal income tax as would be the case if the deposit, defeasance and discharge did not occur.
 
(3) In the case of an election under Section 12.03, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit and such covenant defeasance to be effected and will be subject to the same federal income tax as would be the case if the deposit and covenant defeasance did not occur.
 
(4) No Default with respect to the Outstanding Securities of such series has occurred and is continuing at the time of such deposit after giving effect to the deposit, or in the case of defeasance, no default relating to bankruptcy or insolvency has occurred and is continuing at any time on or before the 91st day after the date such deposit, it being understood that this condition is not deemed satisfied until after the 91st day.
 
52
 
(5) Such defeasance or covenant defeasance shall not cause the Trustee for the Securities of such series to have a conflicting interest as defined in Section 310(b)(1) of the Trust Indenture Act of 1939, assuming all Securities of a series were in default within the meaning of such Act.
 
(6) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Issuer is a party.
 
(7) The defeasance or covenant defeasance will not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless the trust is registered under such act or exempt from registration.
 
(8) The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 12.02 or the covenant defeasance under Section 12.03 (as the case may be) have been complied with.
 
Section 12.05 .  Deposited Money and U.S. Government Obligations to Be Held in Trust; Reinstatement; Miscellaneous.  Subject to the provisions of Section 9.04, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 12.04 in respect of the Outstanding Securities of any series shall be held in trust and applied by the Trustee, in accordance with the provisions of the Securities of such series and this Indenture, to the payment, either directly or through any paying agent (including the Issuer acting as its own paying agent), as the Trustee may determine, to the Holders of Securities of such series, of all sums due and to become due thereon in respect of principal and interest, if any, but such money need not be segregated from other funds except to the extent required by law.
 
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 9.01 or 12.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series.
 
If the Trustee is unable to apply any money or U.S. Government Obligations in accordance with Section 9.01 or 12.04 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 9.01
 
53
 
or 12.04; provided that if the Issuer has made any payment of principal of or interest on any Securities of such series because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Securities of such series to receive such payment from the money or U.S. Government Obligations held by the Trustee.
 
54
 
 
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of [__________], 20[__].
 
 
PATRIOT COAL CORPORATION
   
   
 
By:
    
 

[CORPORATE SEAL]
    
Attest:
    
     
     
By:
      

 
 
WILMINGTON TRUST COMPANY
  
     
     
 
By:
    
 

 
[CORPORATE SEAL]
Attest:
 
 
By:
      
 

 
55

STATE OF MISSOURI
)
    
 
)
ss.:
  
COUNTY OF [ACK-ISS-CNTY]
)
    

 
On this ___ day of _________ before me personally came _____________ to me personally known, who, being by me duly sworn, did depose and say that he resides at _____________ that he is a ___________ of PATRIOT COAL CORPORATION, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority.
 
[NOTARIAL SEAL]
 
 
 
     
 
Notary Public
  

56

STATE OF [ACK-TRS-STATE]
)
    
 
)
ss.:
  
COUNTY OF [ACK-TRS-CNTY]
)
    

 
On this ___ day of __________ before me personally came ____________ to me personally known, who, being by me duly sworn, did depose and say that he resides at __________________ that he is a _________________ of WILMINGTON TRUST COMPANY, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority.
 
[NOTARIAL SEAL]
 
 
 
     
 
Notary Public
  

 
 
57
 
 Exhibit A
 to Form of Indenture

REGISTERED

No.
PRINCIPAL AMOUNT:    $ __________________

[CUSIP NO.                ]


PATRIOT COAL CORPORATION
[INTEREST PROVISION] Note due ______________, ______

[LEGEND IN SUBSTANTIALLY THE FOLLOWING FORM:  THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
 
 
PATRIOT COAL CORPORATION, a Delaware corporation, (the “Company” which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay
 
[DEPOSITORY]
[DEPOSITORY PAYMENT INFORMATION]

[DESCRIPTION OF PRINCIPAL TERMS OF NOTE AS SET FORTH PURSUANT TO A RESOLUTION OF THE BOARD OF DIRECTORS OR IN ONE OR MORE INDENTURES SUPPLEMENTAL]

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
 
Unless the Certificate of Authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
 
2
 
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
 
 
 
PATRIOT COAL CORPORATION
  
       
By:    
  Name:    
  Title:    
 

 
Attest:  
       
   
 Name:    
 Title:    
 


 
3
 
 
CERTIFICATE OF AUTHENTICATION

This is one of the Notes of the series referred to in the within-mentioned Indenture.

WILMINGTON TRUST COMPANY
As Trustee
 
 
       
By:    
 
Authorized Signatory
  
       
Dated:
    
 
4

[FORM OF REVERSE OF NOTE]

PATRIOT COAL CORPORATION
____% Note due _____________, ______
 
[INTEREST PROVISION] Note due ______________, ______

This Note is one of a duly authorized issue of securities of the Company (herein called the “Notes”), issued and to be issued as one series of debt securities of the Company under an Indenture, dated as of ______, ______, as amended and supplemented from time to time (the “Indenture”), between Patriot Coal Corporation (the “Company”) and Wilmington Trust Company, as Trustee (the “Trustee,” which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. In addition to the Notes, the Company is authorized to issue an unlimited amount of debt securities in one or more series under the Indenture.
 
[DESCRIPTION OF PRINCIPAL TERMS OF NOTE, INCLUDING AND/OR IN ADDITION TO THOSE SET FORTH ABOVE OR ON FACE OF NOTE]
 
This Note shall be governed by and construed in accordance with the laws of the State of New York.
 
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
 
5
 
FORM OF SCHEDULE TO GLOBAL NOTE
 
Initial Principal Amount
 
$[Insert Initial principal amount]
 
Date
  
Amount of Principal Purchased, Redeemed, Exchanged or Cancelled
  
Registration Number of Certificated Note Transferred and Cancelled
  
Amount of Principal Increased Upon Transfer and Cancellation of Certificated Note
  
Amount of Principal Increased (Decreased) Upon Transfer Between Global Notes
  
Aggregate Principal Amount Remaining Following such Purchase, Redemption, Exchange or Cancellation
                     
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 


FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and transfer(s)
unto  ___________________________________________________________________________________________

PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE

(Please Print or Type Name and Address
Including Postal Zip Code of Assignee)

 
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints
 
 
to transfer said Note on the books of the Company, with full power of substitution in the premises.

Dated:_____________________________

Signature Guaranteed
 
Signature Guaranteed
    
     
     
NOTICE:  Signature must be guaranteed
  
NOTICE:  The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular, without alteration or enlargement or any change whatever.

 
 
 EX-5.1 6 dp13023_ex0501.htm EXHIBIT 5.1 AND EXHIBIT 23.4
 
Exhibits 5.1 and 23.4
 
OPINION OF DAVIS POLK & WARDWELL
 
April 17, 2009
 
Patriot Coal Corporation
12312 Olive Boulevard, Suite 400
St. Louis, Missouri 63141
 
Ladies and Gentlemen:
 
We have acted as counsel for Patriot Coal Corporation, a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-3 (File No. 333-157645) (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), for the registration of the sale from time to time of (a) shares of common stock, par value $0.01 per share (the “Common Stock”), of the Company; (b) shares of preferred stock, par value $0.01 per share (the “Preferred Stock”), of the Company; (c) the Company’s senior debt securities (the “Debt Securities”), which may be issued pursuant to a senior debt indenture, between the Company and Wilmington Trust Company, as trustee (the “Trustee”) (the “Indenture”); (d) warrants of the Company (the “Warrants”), which may be issued pursuant to a warrant agreement between the Company and a warrant agent to be named therein (the “Warrant Agreement”); (e) purchase contracts (the “Purchase Contracts”), which may be issued under one or more purchase contract agreements (each, a “Purchase Contract Agreement”) to be entered into between the Company and the purchase contract agent to be named therein (the “Purchase Contract Agent”); and (f) units (the “Units”) to be issued under one or more unit agreements to be entered into among the Company, a bank or trust company, as unit agent (the “Unit Agent”), and the holders from time to time of the Units (each such unit agreement, a “Unit Agreement”).
 
We, as your counsel, have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
 
Based upon the foregoing, we are of the opinion that:
 
1.           When the necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of such shares of Common Stock proposed to be sold by the Company, and when such shares of Common Stock are issued and delivered in accordance with the applicable underwriting
 
 
or other agreement against payment therefor (in excess of par value thereof) or upon conversion or exercise of any security offered under the Registration Statement (the “Offered Security”), in accordance with terms of such Offered Security or the instrument governing such Offered Security providing for such conversion or exercise as approved by the Board of Directors, for the consideration approved by the Board of Directors (which consideration is not less than the par value of the Common Stock), such shares of Common Stock (including any shares of Common Stock which may be purchased pursuant to any Warrant or Purchase Contract or which are included as a component of any Unit) will be validly issued, fully-paid and non-assessable.
 
2.           Upon designation of the relative rights, preferences and limitations of any series of Preferred Stock by the Board of Directors of the Company and the proper filing with the Secretary of State of the State of Delaware of a Certificate of Designation relating to such series of Preferred Stock, all necessary corporate action on the part of the Company will have been taken to authorize the issuance and sale of such series of Preferred Stock proposed to be sold by the Company, and when such shares of Preferred Stock are issued and delivered in accordance with the applicable underwriting or other agreement against payment therefor (in excess of par value thereof), such shares of Preferred Stock (including any shares of  Preferred Stock which may be purchased pursuant to any Purchase Contract or which are included as a component of any Unit) will be validly issued, fully paid and non-assessable.
 
3.           When the Indenture and any supplemental indenture to be entered into in connection with the issuance of any Debt Securities have been duly authorized, executed and delivered by the Trustee and the Company; the specific terms of a particular series of Debt Securities have been duly authorized and established in accordance with the Indenture and any such supplemental indenture; and such Debt Securities have been duly authorized, executed, authenticated, issued and delivered in accordance with the Indenture and any such supplemental indenture and the applicable underwriting or other agreement against payment therefor, such Debt Securities (including any Debt Securities which may be purchased pursuant to any Warrant or Purchase Contract or which are included as a component of any Unit) will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability.
 
4.           When the Warrant Agreement to be entered into in connection with the issuance of any Warrants has been duly authorized, executed and delivered by the Warrant Agent and the Company; the specific terms of the Warrants have been duly authorized and established in accordance with the Warrant Agreement; and such Warrants have been duly authorized, executed, issued and delivered in accordance with the Warrant Agreement and the applicable underwriting or other agreement against payment therefor, such Warrants (including any Warrants included as a component of any Unit) will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability.
 
2
 
5.           When Purchase Contract Agreements to be entered into in connection with the issuance of any Purchase Contracts have been duly authorized, executed and delivered by the Purchase Contract Agent and the Company; the specific terms of the Purchase Contracts have been duly authorized and established in accordance with the Purchase Contract Agreements; and such Purchase Contracts have been duly authorized, executed, issued and delivered in accordance with the Purchase Contract Agreements and the applicable underwriting or other agreement against payment therefor, such Purchase Contracts (including any Purchase Contracts included as a component of any Unit) will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability.
 
6.           When the Unit Agreement to be entered into in connection with the issuance of any Units has been duly authorized, executed and delivered by the Unit Agent and the Company; the specific terms of the Units have been duly authorized and established in accordance with the Unit Agreement; and such Units have been duly authorized, executed, issued and delivered in accordance with the Unit Agreement and the applicable underwriting or other agreement against payment therefor, such Units will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability.
 
In connection with the opinions expressed above, we have assumed that, at or prior to the time of the delivery of any such security, (i) the Board of Directors shall have duly established the terms of such security and duly authorized the issuance and sale of such security and such authorization shall not have been modified or rescinded; (ii) the Registration Statement shall have been declared effective and such effectiveness shall not have been terminated or rescinded; and (iii) there shall not have occurred any change in law affecting the valid issuance of such security or the validity or enforceability of such security.  We have also assumed that none of the terms of any security to be established subsequent to the date hereof, nor the issuance and delivery of such security, nor the compliance by the Company with the terms of such security will violate any applicable law or public policy or will result in a violation of any provision of any instrument or agreement then binding upon the Company, or any restriction imposed by any court or governmental body having jurisdiction over the Company.
 
We are members of the Bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware.
 
3
 
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and further consent to the reference to our name under the caption “Legal Matters” in the prospectus, which is a part of the Registration Statement.  In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
 
 
Very truly yours,
 
/s/ DAVIS POLK & WARDWELL
 
 
4
 

 EX-12.1 7 dp13023_ex1201.htm EXHIBIT 12.1
Exhibit 12.1

PATRIOT COAL CORPORATION
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(Dollars in thousands)
 
   
Year Ended December 31,
  
   
2008
    
2007
    
2006
    
2005
    
2004
  
Ratio of Earnings to Fixed Charges:
                              
Earnings:
                              
Pre-tax income from continuing operations before adjustment for minority interest in consolidated subsidiaries or income or loss from equity investees
     $147,765       $(102,209 )     $5,967       $19,209       $(78,744 )
Add:
                                        
Fixed Charges
     28,698       14,712       17,096       15,922       18,480  
Amortization of capitalized interest
     212       203       157       122       112  
Distributions from equity investees
     -       -       9,935       7,552       6,184  
Less:
                                        
Interest capitalized
     (89 )     (464 )     (348 )     (106 )     (153 )
Distributions on preferred securities of consolidated subsidiaries
     -       -       -       -       -  
Total earnings
     $176,586       $(87,758 )     $32,807       $42,699       $(54,121 )
Fixed charges:
                                        
Interest expense
     $16,744       $8,123       $11,419       $9,833       $12,701  
Interest capitalized
     89       464       348       106       153  
Amortization of capitalized expenses related to indebtedness
     2,782       214       -       -       -  
Rental Expense interest factor
     9,083       6,196       5,685       5,983       5,626  
Distributions on preferred securities of consolidated subsidiaries
     -       -       -       -       -  
Minority Interest share of fixed charges
     -       (285 )     (356 )     -       -  
Total fixed charges
     $28,698       $14,712       $17,096       $15,922       $18,480  
Ratio of earnings to fixed charges
     6.2x       N/A       1.9x       2.7x       N/A  
Coverage deficiency (1)
     N/A       $102,470       N/A       N/A       $72,601  
 
(1)   Represents the dollar amount of the coverage deficiency, as earnings are inadequate to cover fixed charges.
 
 
EX-23.1 8 dp13023_ex2301.htm EXHIBIT 23.1
Exhibit 23.1
 
Consent of Independent Registered Public Accounting Firm

We consent to the reference to our firm under the caption "Experts" in Amendment No. 1 to the Registration Statement (Form S-3) filed with the Securities and Exchange Commission on April 17, 2009, and related Prospectus of Patriot Coal Corporation for the registration of $300,000,000 of its common stock, preferred stock, debt securities, warrants to purchase its common stock or debt securities, and purchase contracts, or any combination thereof, and to the incorporation by reference therein of our reports dated February 25, 2009, with respect to the consolidated financial statements and schedule of Patriot Coal Corporation, and the effectiveness of internal control over financial reporting of Patriot Coal Corporation (excluding the internal control over financial reporting of Magnum Coal Company), included in its Annual Report (Form 10-K) for the year ended December 31, 2008, filed with the Securities and Exchange Commission.

 
/s/ ERNST & YOUNG LLP
 
St. Louis, Missouri
April 16, 2009
 
 
EX-23.2 9 dp13023_ex2302.htm EXHIBIT 23.2
 
Exhibit 23.2

 
 
     
   
PricewaterhouseCoopers LLP
214 North Tryon Street
Suite 3600
Charlotte, NC 8202
Telephone (704) 344 7500
Facsimile (704) 344 4100
www.pwc.com
 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM


We hereby consent to the incorporation by reference in Amendment No. 1 to this Registration Statement on Form S-3 of Patriot Coal Corporation of our report dated February 19, 2007 relating to the financial statements of KE Ventures, LLC, which appears in Patriot Coal Corporation’s Annual Report on Form 10-K for the year ended December 31, 2008. We also consent to the reference to us under the heading “Experts” in such Registration Statement.


 
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Charlotte, North Carolina
April 17, 2009

 GRAPHIC 10 pwc_logo.jpg GRAPHIC begin 644 pwc_logo.jpg M_]C_X``02D9)1@`!``$`8`!@``#__@`?3$5!1"!496-H;F]L;V=I97,@26YC M+B!6,2XP,0#_VP"$``("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@(" M`@("`@,#`@(#`@("`P0#`P,#!`0$`@,$!`0$!`,$!`,!`@("`@("`@("`@," M`@(#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,# M`P,#`P,#`__$`:(```$%`0$!`0$!```````````!`@,$!08'"`D*"P$``P$! M`0$!`0$!`0````````$"`P0%!@<("0H+$``"`0,#`@0#!04$!````7T!`@,` M!!$%$B$Q008346$'(G$4,H&1H0@C0K'!%5+1\"0S8G*""0H6%Q@9&B4F)R@I M*C0U-CH.$A8:' MB(F*DI.4E9:7F)F:HJ.DI::GJ*FJLK.TM;:WN+FZPL/$Q<;'R,G*TM/4U=;7 MV-G:X>+CY.7FY^CIZO'R\_3U]O?X^?H1``(!`@0$`P0'!00$``$"=P`!`@,1 M!`4A,08205$'87$3(C*!"!1"D:&QP0DC,U+P%6)RT0H6)#3A)?$7&!D:)BH*#A(6& MAXB)BI*3E)66EYB9FJ*CI*6FIZBIJK*SM+6VM[BYNL+#Q,7&Q\C)RM+3U-76 MU]C9VN+CY.7FY^CIZO+S]/7V]_CY^O_``!$(`"\`^P,!$0`"$0$#$0'_V@`, M`P$``A$#$0`_`/W\H`*`"@`H`*`"@`H`*`"@`H`*`"@`H`*`"@`H`*`"@`H` M*`"@`H`*`"@`H`*`"@`H`*`"@`H`*`*M]>0:=97FH73;+:QM;B\N'RHV06L3 MS2MEV51B-&/)`XY(%`'P1^S?X<^)WQF^%%M\0O%7QQ^+6@ZEKNL>($T:V\/Z MAX8BT:'2].OGTV!VM=2\+WEU<,NHVNHQL?MD6Y844!64NX!U7P2^.'B#1_'7 MQ6^#_P`;?&GARYO_`(<:E8)H7CO5)=&\*G7],U)));:UU"W\VVM?[36R^Q3@ M0*SGS;E96D,(EE`/K[3O$7A_5M/EU;2==T?4]*@61I]2T[4[*]T^%8HQ-*TM MY;3O#&J0D2,6<84ACP15&2P!`.'U?X\_"G2-7\):&GC#1=9U'QI MXAL_#&C0^'-3TS7/+U2_=8[0:B-/O7:QMI)'"+-(NTM\HRS*&`-OXC?%3P?\ M*;30+SQ=>7%LOB7Q%8^%]'@L[9KNYN=5U!97A'D(P*6RB+]Y,?E0R1AOOC(! MK>./'&A?#W1(]*=5TZWN(O!?A^V\>^(-.U'3[76?#=GXGT30[W1[/4+6 M:[CO[Z34I"L#-"D+16\BQO.MRKH1&K.`#RCX:_''Q9\3Y1IV6E6LEU)'+,EM'<7T\4;W#0P3N(PQ8K#(P& M$)``[1M?T+Q#:F^\/:UI.N62R-$;S1M1L]3M1*OWHS<6,TD8D'==V1Z4`:U` M&)K?B;PWX9BAG\1^(-$\/07+M';S:WJMAI,4\B!2Z0R7]Q$LKJ&4E5)(W#/6 M@"2]\0:#IFEIK>HZWI&GZ*XMV35KW4K*TTMUNV5+5DOYYE@83-(@C(D^/P;!=,AM="\/Z==K]DU'Q+<(P&;E9(H@\F$\ MRUG-L`8/Q"\!>+OASI^G:YX8_:A\2:/XI6[M<:?\8O$_A.\\*>)HGNX8[ZUB MTV^L=-CL9_*GD\H6C@$K%"#$[BXC`V^1]8W_`(D\.Z+I=OJ^L>(=$TS2KA;? MR-6U'5+#3]-N?M$8D@:&\N+A()!,AWIL<[@%]=O(HC M/)::+K^E:G+=`:X>X:01+;K`NH%VG,I"!`NXL<8S0!;D^('@.'4WT27QMX1BUF*Y: MSDTB3Q)HR:G'=H2KVKV#7HG2Y5@08C&&!!!%`%WQ%XN\)^#[>"Z\5^)_#WA> MUN9##;7/B+6M-T2WGE!C4Q03:E'OASH^HW,VF:3I^I7=A976K2Z#9373W-SY9>6 M:>4QM*Q2,+''&B`'+6OB7]NF&:1XY?V@$GM"0UO?:5XJ#LY@,YBCL-1L?],F M^SMYOE)%*P5E?;@J2`?J)^Q]\5/&/Q7^$]SJ/CU2?%/A7Q;JO@S4KN2T&GW= M^VFZ=HNI1W6H6*1QI;:@L>LK;2JD409K0N4#.U`'U30!X_\`M`^(3X5^"'Q5 MUM)?(GMO`WB&WLY?,\DQ:AJ>GS:7ITBN!_K%OKVW*J,%FPH(+9`!\Z?"+XW^ M&?`OP4^'/@OP5X0^(GQ!\;:=X/T>!_#6A>`O%FF6R^(+ZV2]U,7WB+6]%L], MM=*CU6\NO,U&.:XC\M#,HD##(!\S>*/`UY\+?B-\,_'WQGTY_$_C3QKXN\=? M Z)X8L8-:B\.^'/!&AK)<$RS&1@";X>>&3XU\?\`PK^"&NPI&[D++IGBKXB>(-.L9K,ZU9.IBU#3+/\`M&:\AMI/-B$T,HD\Q9R@ M`.T_:Y\&^#=`^':V/AWPE96.K_%[XE_"OP7J]OXK'#=Q1N0A=IHEDY?6?">@Z'KUUIUM^%]!G'F?98_'OBCQ7X9UCQAJDC;5@E73O#[>%]-"3>=& MDNIWH8"0+L`/:/BOXSTL_$2ZU_50UYX1_9STB'Q'+I4)0/XG^,GC:RGTWP3X M;M`SE)M2L=&NGEC0*'BN/%=D[C9@@`X7X,+J'PH^-'QNL?&&J+J7B+7OA/X2 M^+WC*9[L&W37-/FUYO$%M92'S!:Z18S:Q]CM@"H6UM[4[&&"`#B?@WK?Q"T_ MPY^R]\-O!WB,>%[KXGZ3\6?B-\0M=70=+UJ\-M+J,VLZ#=0Q:NDT<+R23BS= MBB!A)"VYF4@@'1_M*W5YX-UCX":;\1/$6M?$O3K7XBZW\2]0MK;PQH=I>)H7 MPU\-C4]01=(TJ.VMK^W@BO9[F9KDY\D3C(16!`V\CR?Q=IVMV?@3XI_&;0;: M;X3^'OV@?$OP>T#P'H7A;4(DU>'2(]6L[VY\6WD?A.YDM[/7-4MK6ZF^QV32 MS*M_?03!Y)G>8`^D_BA\2="\6?$']G3P1X+\5:I##-\09O%&NQV__"0Z.+KP M]X'\.7^LW%IJEQ>06YU"P=$_TBUG:4.`#.N""0"3]FK1=.^+NE^)?C[X\TJR M\0ZO\0O$.NV7A:#7+*WU"U\+>`-!U*?1=,T#2+.[66&Q#W=C>R7;P;)^W1<>&?#MJ\1;3]-\"^'IG\0:WHFER8>)K& MUN)(Y((@2"MRY)"2C:`?;/QVD^V^)_@;X?2U:]\CXA:C\1;FSB6.2XGLOACX M/U[6XHX$?YA*^OWGA^*-T'$T\`8A6.X`X/X(>)]8^*?A31?C')\;M4-_;7MW MJ?C;P'I]MX:'@_0M'@ENVN/"4FBOI!U2QG@L8XI(]8GOY+BX,;2JQBG41`', M?LU#QAX5^`Y^+5_XETZU\-WL'Q/^*.L>#6\-0I*/%?C+Q!J\K1&XN; M;1[Z^TUA(V5"(E_8ZY1M_LQ^&['XE^%M9^.GQ!TC3]?\ M4_%;5];ELX];LK;4XO#?@C2]3O-%T7PII,%[`T=EIH6QGGD\E5^U^?#)<&1U M#``XG]E+X9>']9U#XF>(]:A@\3^&_!/Q+\<_#OX0Z1K:PZKI?A'PK8Z[=:I> MW&BZ?=1R0V<]_+J]O"UP09Q%I_E(4@?$H!X+XYOW\/>"_P!M'X=>&8F@\)2? M%#X9Z#X,T>Q@W>F0BUFENKJ^MXD87=S'``7)N`"W^R-8:''\*OACH&L?"77[S4;^VU'Q) M+X]UGPQXXO=4U;Q)IVH_P!LSZG+?*=AL[>V86@E$OD-M4$S``^8_#VH M:?\`$KPEX_\`A=H/@!-9^)'[0GQ0^(WCCP]XR\16FB:?X9TSPW%XE@2_U?2M M=N)_M]_<:<-'U"1;'3[0RK++-)L*#;.`>Z>(=5L?@3\:KS4OC;X2O?%WPUUO MP/\`#GP+X,^)M[I$7B&P\)KX?TEZ#HF@:/I7A:TL;'PY8Z=:PZ):Z:%%A#IHB5K46A0D-"T3*P<$[M MVXDELD#;RL?D#\'/`^@>(M+^.T7BW6M&T#PMXQ^.WA7POKU]K.N6&@HWA_PC MK7B7X@:]IUE-J%[;?:KZ^6RTR".*T%U M%[K3]/UOP9K-I#::CH5I?66@MIGCOQ3H^C>$]!\):I,]H]OX0\`>'K7PZ)M3 MM;0632^(7N(7D-Q->W(&WE8^LOV`[A;KX9?$JZ76KKQ(MS\6TMQ.]M=7P;[3)$\\S(\[*9'(+$`^Z*`/C;]N749?^%*VO M@^SF\J^^(_CWP;X-M8U`>5S+J)UHE8]Z$QK+HT`8Y"DRHC$>:*`/L&TM8+&U MMK*U016UG;PVMO&.1'!;QK%$@)[+&BC\*`/$-3^%^N:S^T#IGQ+U.;0YO!&B M_"O5?!EGH[SWL^K7'B#6M;%SJ5S>:=+IPL/[&ET5FMR#=RR-)$NZ$H^8@#PG M4_V:OBE#\'_B1\"O#WB/PI_P@NM>,]/U/P!=:EJVO0:OH/@RXU^#Q#K?A;48 MX?#MS'&T%Y:H+66">X6Y^V79N!`L@C4`]0UGX>>._!?QKOOBQ\.=%T3Q3I/B MWP9IWA/Q5X4U#7%\,WEA>Z`Z'1-:TC47TN[AEM!8P1VUTM)DMX[7PGI]KK5EX0O M9-3NK>*6[FO;I["R3S<16\;Q.9``8_[0OA_XO>+_`(!>+[;4_"OAZY\::=XC M\&ZQX6T'X>:CKWBI[V'3O$V@R7#O-J?A[1[F&\CBDU&9A;6SA;>W)\S+-M`V M\C+^+?PI\6+^Q]XI\#Z=I=UXA^(>O)HGBCQ'::9'+>7FJ^,-7\?Z'XO\7O:J M&DDN4BN&U%(?F8_9[*%#<.[FQM$EM?+@5J`-"]_9JT.'X MLGQ)X8T+P;X4^'.O_"/Q-\,O''ASPS:/X5U+4_[>OS=?:[2VT#38;1V>`0P2 MW3W$%PBV\>S?Y<1B`V\K'A'B&/X%^'/VD8/!_P`0;GPMI7P]^$OP"T3PEX>T MCQ;>1RVYUG4-7CU".2$WDS37M\OAIQ&X*RN_G[R#$\'_\`"DO#OPQ\4:/H.BV+Z@)+R\\QGDC%L(UCDH#;RL>3:;\"?BKX3U+X0_#AX;#Q)\*O!?QXU'XC^']7L=3FE MU#PQX3T>WOK[PWHWB:#5+*`F[35=4N#";![\.TDNY[=8HF(![QXC\)^*=:_: M8^'WB-]&G?P+X,^&?BW;K;S69LE\4>*=0BTVXTM;4W2W!N#I%E;RL_V>2(I( MJYW`E`#E/!OPU^-OPF\*ZE\+?AU+\/[KPG_:FNW'@KQEX@U?78-:\%:3KNHW M.IRV5]X2M_#]S;>([^SNK^ZDM95U>RAF<`W,:*2C`;?(H:W^S1J'AGPW\'?^ M%5W^E7?B?X/^*-2\5N/&+?#6J7GQP^+^G6D]YX=T.W\+>'/!OPUMM;\7IX6T;Q%K MNE-XL\2W5Q/IMK=:MJ3K;Z=-=-:V$26FG:!,L7VF2=]P!X[IO@'P;X[_`&B+ M+Q5\)=%U/1O`USX*\;:7\9]=TW3=8\+^&O%UUXFTN33-'T33(;NULUN/$$-Q M>-JMW=V$3(K6\#3.MT29`#UC6OV6?!/_``@FK^#M`UOXEV6GOX>U/2M'T*3X MK>/V\,VSSV5Q%9VTN@R:^;!].%Q*I>V>`Q.I=64JQ!`.<_8HURRUGX!Z=X*O M8U@U[P!JGB;P9XMT64-!=6-R^MZI?11W,&0\0DL;]8S(#AIK:Y"L&C=4`(/" M/@CXT?"OPRGP)\&:U\.)-,/_``D5QX)\;ZWKFL+XPT#PK?:M/>7TUSX%MM#> M/6M3TRZUN..&\76+6RWRVB3!/,6&@/P+7P_^$'Q=^!&EZ_X)^%ESX(\4>%=< MU$:WI6N>/=9UW3==\+:W=Z1I]CK<^H:9I.@WL/B;3Y[O31=V\$5YILBR7;Q2 MR;,S4!M\BC-^R]JUAX?^%GA[2=?TS5&TGXV:;\9OB[X@UHW.FZIXVUBTGEN; MEK*TL-/NHF$DEP\:6D\UM$J0QOYOFDN`#Z'^+_A?7_&WPO\`'?@WPOF[FLK*[F2,V$]T!Y=O(2S*,`$LH!Y[X+T#X MYZ!X,T[P+C^,O&&I:@VKZ5X>BTCPY//#>^`K&*RL M#^TW3_$=YJMWJNJVS1W-I:37V@:DUUY5S%);QL_E12/'+Y1CF`-7QMX=^/'Q M<\"7?PO\4^$?`7@^W\0Q6MCXM\;V'BRZ\1VBZ?:7EOG6L5G; M*[*JAG$,*`D*H)S@#I0!^(-K\==`^%6J>%;"TL;S5;_PY\>?C%XO\?Z.THR"/P-`'Z!T M`>3?$GX.>&?BCK/P[UGQ%?Z];M\-?$\'BW1].TNXTV'3-3U2VN=/NH(]>@OM M*NY+NS4Z>(_+MYK1BEW<*7)=3&`>LT`%`!0`4`%`!0`4`%`!0`4`%`!0`4`% M`!0`4`%`!0!X3XE_9Z\#ZYXOO/'NDZEXR^'_`(NU2%;?7=:^'GB:Z\,2^((D M4+'_`&U:QQS6EY*O!\[R%E9@K2.Y12H!U?@;X3^$_`%YJ&L:<=;UKQ/JT"6F MJ^+O%VNZEXG\3WMG%()HK!M4U2>0V>G)*$<6=FEM;[D1C&64$`'I=`!0`4`% M`!0`4`%`'QW\2?V'/@G\2_%.I>+[QO%OAG5M8N9;[5U\)ZKIEG8ZCJ%PV^YU M"6SU?0]22"ZFD)DE-L8$DD9Y&0R2.S`?@<"O_!-[X&A@3XH^*K`$$JVN>$@K M`'E3M\#@X/3@@^A%`'V9\//AYX3^%OA73_!G@K3%TK0].,LB1&22>YN;JX?S M+J^OKJ4F2ZO)GP6D<\!41`L<:(@!VU`!0`4`%`!0`4`%`!0`4`%`!0`4`%`! E0`4`%`!0`4`%`!0`4`%`!0`4`%`!0`4`%`!0`4`%`!0`4`?_V3\_ ` end EX-23.3 11 dp13023_ex2303.htm EXHIBIT 23.3
Exhibit 23.3
 
 
Weir International, Inc.
Mining, Geology and Energy Consultants
 
 
 
 
February 26, 2009
Project No. 5397.3
 
 
 
The Board of Directors
Patriot Coal Company
12312 Olive Boulevard, Suite 400
St. Louis, Missouri 63141
Executive Towers West I
1431 Opus Place, Suite 210
Downers Grove, Illinois 60515
USA
 
Tel: 630-968-5400
Fax: 630-968-5401
weir@weirintl.com
 
Reference: Consent of Weir International, Inc.
 
Ladies and Gentlemen:
 
We hereby consent to the use of our firm’s name, Weir International, Inc. in the Registration Statement on Form S-3 to be filed with the US Securities and Exchange Commission by Patriot Coal Company (“Patriot”), and any amendments thereto, and including the related prospectus contained therein (the “Registration Statement”); the inclusion and summary of, and references to, our January 14, 2009 reserve audit, relating to certain coal reserve information of Magnum Coal Company and its subsidiaries in the Registration Statement, and being named as an expert in the Registration Statement (and being included in the caption “Experts” in the Registration Statement).
 
We further wish to advise that Weir International, Inc. was not employed on a contingent basis and that at the time of preparation of our report, as well as at present, neither Weir International, Inc. nor any of its employees had or now has a substantial interest in Magnum Coal Company, Patriot Coal Corporation or any of their respective subsidiaries.
 
Respectfully Submitted By:
 
Weir International, Inc.
 
 
 
By:   /s/ JOHN W. SABO  
  Name: John W. Sabo  
  Title: Executive Vice President  
cc: D.N. Kostic
 
 
 
 GRAPHIC 12 weir_logo.jpg GRAPHIC begin 644 weir_logo.jpg M_]C_X``02D9)1@`!``$`8`!@``#__@`?3$5!1"!496-H;F]L;V=I97,@26YC M+B!6,2XP,0#_VP"$``("`@("`@("`@("`@("`@("`@("`@("`@("`@("`@(" M`@("`@,#`@(#`@("`P0#`P,#!`0$`@,$!`0$!`,$!`,!`@("`@("`@("`@," M`@(#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,#`P,# M`P,#`P,#`__$`:(```$%`0$!`0$!```````````!`@,$!08'"`D*"P$``P$! M`0$!`0$!`0````````$"`P0%!@<("0H+$``"`0,#`@0#!04$!````7T!`@,` M!!$%$B$Q008346$'(G$4,H&1H0@C0K'!%5+1\"0S8G*""0H6%Q@9&B4F)R@I M*C0U-CH.$A8:' MB(F*DI.4E9:7F)F:HJ.DI::GJ*FJLK.TM;:WN+FZPL/$Q<;'R,G*TM/4U=;7 MV-G:X>+CY.7FY^CIZO'R\_3U]O?X^?H1``(!`@0$`P0'!00$``$"=P`!`@,1 M!`4A,08205$'87$3(C*!"!1"D:&QP0DC,U+P%6)RT0H6)#3A)?$7&!D:)BH*#A(6& MAXB)BI*3E)66EYB9FJ*CI*6FIZBIJK*SM+6VM[BYNL+#Q,7&Q\C)RM+3U-76 MU]C9VN+CY.7FY^CIZO+S]/7V]_CY^O_``!$(`#0!*P,!$0`"$0$#$0'_V@`, M`P$``A$#$0`_`/W\H`*`"@`H`*`"@`H`*`"@`H`*`"@`H`*`"@`H`*`"@`H` M*`"@`H`*`"@`H`*`"@`H`*`"@`H`*`"@`H`*`"@`H`*`"@`H`*`"@`H`*`"@ M`H`*`"@`H`*`"@`H`*`"@`H`*`/G[X^_M(_#K]GG0([[Q5=R:EXGU2.0>$_` M6C-%-XG\37*EE#06Y;;INC1.K&YU6[\NV@6-E4RW#0VT_;@,OQ68XJC@\'0G M7KUYQCR55/KE.GG4??CAU9T+-7 M]E.O92=;;WXI4(VY5!W=>7X[_P`1BR^.=>Q6"J2R3X'B=56YK_Q8T-E1W]QM MUY?$VK*BOUD^"W[5/PG^,_A/5?$5AK,'A/4_"FG3:CX[\*^*[NUTS5O!]M:P MF:\U*]DED6"]\.+&K21ZS;.]JR<2-#.LL$/XYCLOQN5XJI@<=AIX3$T7RRIS M7*T^C71Q>ZE%N,EK%M:G[%@`;:X=-2^)$*26'B;QE+;3(T,'A6WN( MEET'PP)HB\MW.HN[]6$'E6L`G6[_`$3@WPWQF?KZ]CJCP.5KF5.I&,93K35U M^Y4DZ<9^(^"X:,ZG*K0G[K^S7^WO9:Y-I?P^_:!FT[PSXKF\NRT7XDPI%IW@ MSQ=%Q7P7FO"]=NO2]K@9RM2Q M-)2=*5]HM-RE2G_T[J2;?V*E57:][A7C/*>)\.OJM7V&-I13JX6JTJT.\E9* M-6G_`-/*:2_GA3;43U']I[]M?PQ\$[BY\!^!;.T\>_%]K99'T5I9D\,^#(KF M)7M-2\;:C;.C9=)%FCTBRE%Y/&N9'LTGMY9_,X?XSJ5:EI*C37\SC*[1I57SK_$#5;[XO>$_$VJ-JWBC0WBL= M/UO0;J<1Q7%]\/"@AMK:TCMHH1_PC]PT=K*;;=!+:3W$\LWZ/Q!X28W!8"GB M\HQ'U_$T87Q&'4%3;>]\*KMRC%67)4E*K.SGSSF^0_-^'_%O+\;F%3!YKAO[ M,P]2=L-B'/GBD[)+%-)*$I.[YX15*-^1J,8\[_:?X9_%+P)\7_"MIXR^'GB& MS\0:'LZ=.J7.DZK")$\RUN8XY`'1P"DB,WXU.G.E. M5.I!TYP;4HR3BXM.S33LTTTTT]4TT]3]CA.$XQG3DI0DDXN+3335TTUHTUJF MMUJ>@5)1Y>_QN^"\3O%+\7OA?')&[1R1OX_\*(\;H2KHZ-JP*.K`@@@$$8-> M['A?B:45*/#N9RC))IK`8IIIZIIJE9IK9H\*7%'#-.4H3XBRR$X-QE&6/PJE M&2=FFG53335FGJGH:&L?%CX6>'=2NM&U_P")?P_T+5[%D2\TG6/&7AW3-2LW MEBCN(UNK&]U*.:W9X)8I%#HI*2*PX8$XX;A_/L90IXG!Y)C\5AJEW"K1P>(J M4Y)-Q?+.%.496DG%V;LTT]4S;$\09#@J]3"XS.\OPF)HVYZ-;&8>E5AS14ES M4YU(RCS1DI*Z5XM-:-&M%XZ\$S^')?&$'C'PK-X1@+B;Q3%XATB3PY"8[A;. M02ZVEV;*,K=LL!W3#$C!#\QQ7/+*LSAC8Y;++<5#,96Y<*\/56(=X\ZM05HZQ][;4Z89GEL\$\QIYAAI9=%2;Q4:])X9*,N63==3]DE&2<9/FTDK/ M4P9?C'\(K>TM+^;XJ?#B"POWN8["\E\<>&(K2\>S:-;Q+2X;5!'M/\`57B?_HG,T_\`#?B__E)E_K5PO_T4F5_^'#"? M_+CMM'\3>&_$.D_V]X?\0:'KFA?Z1_Q.='U:PU/2?]$++=_\3&RN)+?]RR.) M/WGR%3NQ@UY>)P.-P.(>$Q>#K8/%1Y?W-:E.E57.DX_NYQC-SN_LE_P"-O#-E<_9=1LX-1T^Y\BXU M-'^SW6GW5K=0R;=LL-S%*A9)%8Y4>'.(:]/VN'R',:U+FG%3IX+$SCS4YRIU M(\T:37-"I&4)J]XSC*,K231K7XCX>PE1T<3GN78:M%0DZ=7&X:G-1J0C4A)Q ME54DITY1G!VM*$HR5TTPT_XP_"/5;R'3M*^*7PYU*_N2RV]CI_C?PS>7D[(C M2N(;:VU-Y)2L2.Y"J<*C$\`FBMPYQ#A:4JV(R',Y?B:]2_)3I8W#5*DK)R?+"%5R=HIR=EHDV M]$>C5XQ[(4`%`!0`4`%`!0`4`%`!0`4`%`!0`4`%`!0`4`%`!0!^>G[3/[_!Y=,\:?$JWEFL-:UJ60W'@SX?3QY2X35)K9Q_;WB:*3Y%T:UE5 M8)`YOYX3!]FN?J>&.$)-9F$VH7LG`2")458M.TR!%2*VT^TCAMK:&* M.*&-4C`K^H.&>$LJX6PJHX&G[3$RBE5Q51+VU3JXJVE.E?54H6C?WIN=1N;_ M`)=XGXOS;BC$^TQE3V&$IR;HX2FVJ-/IS2V=6K;1U9J^Z@H0M!05].?*C[&Z MU31=8TWQ)X;U?4?#7BC1)?/T?Q#H\YMM1L78%9(2V"EYI\\;/%<6-RDMM+W5I)27U'#/% MN;<+8GVN`J\^&FTZV%J-^QJKO;_EW4MHJD+2Z/FC>+Z&8:;XYO\`S](T_1/` M_P`3K^<+=>$+1XM&^''Q5O969O[0\!S7+K;?#[XB74C;9/#%U*FEZI-M.ESV M]U/'8R?C6&Q7$_A9CEAL93EF/#N(G[KBW[)W>LZ,G?ZOB+:RHR]VI9WYTE5C M^TXG"<+>*>7_`%C!U(Y;Q!AJ>MU%5Z?:%>*M]8P_-I&I'6%_=<&Y4Y<:'M;X M7NG75L\<]K+-8:OHVJ6KVVH:;=PNT-UIVK:7=HLUG=Q3(\;PS1J0R'TS7[;E MV:Y'Q3ETI86I1Q^$KPY:V'J*+E!26M.O0E=Q?JN67Q0E)6D?AV991GW"68P6 M)IULOQ5"?-0Q%)R4)N/VZ%>-E)6W2:DD^6<8N\30N=2FGT[3=(\1#4=8TS0+ M(V'ACQ)8+'=^/O!%BAW6^DVLM[.:W&W^R-0L!YD-U^ M69WP%FO#6,?$'`U>I%T6YSP2;G44=YQIJ5_K-)I:T*G-4>G)[27+R_JN1%K)O2M3Y:>_-[)7YLJ*_\`):VAOI;/ M_37G32-5LI)3HGB)+7RO.ET6XNHHIEN8UN+((1P>,E#+,ZIODGAJDN159ZW>'3NG>B_WL&FO?BN=_&\7>'N9E:*]G):ODD^4[OP!X^\>?"'Q2/&_POU[ M_A'=?801ZI97$[VT\;]9XQ\ M/LNXEA/%891P&<17NUU&U.LUM'$1CJ[K158^_#2ZJ17(ZX-\0\QX9G3P>*YL M=DU[.BW^\PZ>\L/*3LDKW=&7N2UY73D^8_;7]F[]KGP+\?H3H$T)\%?%'3K, M7.L>`]3N%=KN"-1Y^L>$M2*1Q^(]$#AMQB5+FVQBZ@C5HY)OYES?)DZ4U[M2$NDHMJ]XNTE**_IS*,XR[.\'3QV68F&(P\^L7: M4)=85(.TJG_MR^'M!\?_``J\(^,=`MSJ6O6$J_!?XJ7'C?\`9H\/:M92 MQ3>+5L+;X;;)XH[A%\6^=;^&M-O+VU@V![5HKK3]6N(QY86V>8DHB%Q\_P`3 MY##*.-<;A:D7#+_:2S!$O>O544N9M)_0\+9Y/.. M#LOQD)+?#FD6D5MI?AS3O`.F:5`$3_1K>Q\:>%+*)E(48F:#>'D&&8RR$D[SG?P M]Q>(QOB#EV,Q%1SKXNICZM65W[TJF"Q!9M;T*_\8>*? M'5]X=C\)&Z@O-22RUCQ-<27]WJFEP2-+867]A_;)8I;M(XI9&@C&_P`W:WN^ M(/#^:8OBG.\UAA*]'+(>+Y)0I-H3S+%XFO1CA%.,ZR4\57J2E4I1;G3A[!2G&=11A)N$4 MVYQ3^Y?!7@G1?`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`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`GP]\/W7BGQAJ2-/#IEJ5AM=-L$94GUKQ!J4F(-$T6%G0-]M.>=FH1=FX M_,\'\#9EQ3656*>#RJG*U7$RC\36LJ="+LJE2VC=^2G=.;O:,OVC_9C_`&+_ M``A\#Q:^,_%\MGX[^,$]L!/XDN+7.B>$?.`:;2_`6G72$Z=$@/DOJTJB_NE\ MULVL-W):#^7L\X@S+/\`&5,7F%=U)R?NJW+"G!:QITH7:ITT]>5-N4O>J2J3 M2DOZDR3(P=/`Y;AU0I4U=O>=2;5I5*L[)U*CVYFE9>[",(^Z>K?M0_#4 M?%'X+^+=#M[87&MZ3;?\)1X;55C,PUK0HY;A8+/N59*Z39X_^QOX?UCQ5\$+2\\>1 MK>:7>:)K'@#PO:318+>!1J%^VH2S>8G,EY?7,ECP"AM?#>G$`MO9_H?$C%87 M+^*JU/*&Z5>E6I8[$RB]L:Q4 MJ4J-3!X:+5F\#&%/B5\5_"&L2 MR?\`"*?#7Q3YMO!-$5^U^+Y;35]#TS58)(Y0C6\WA*\NKB2%XY`6N=,E4Q-# M^\]WQ*SC+LPR7A[,<-%?VCG.%M-Q>D,(ITJU2E*+5U*.,BH0DI1TA7B^=2]W MP?#7)\RRG-N)=_LA>&= M!\3?LY>`+C4ULEN?"/CG5?$NG:C-%!+-HUYI7BB:^N#'-(P-E]JTLSVTK[EQ M!?%B&``/K>(N-Q6!XTSB%!S4,?@Z.'J4XN48UH5<+"$;I?'R55&I%6?OP2T9 MYWAOA,-BN"G-QBY4IPQ=:[BW\#G2E*G)II^SJ2W3U^K?!OQ M"T'QYJ7BV#PQ>VFJZ3X3U2U\/W.K6,PGM+G7OL:ZAJMI:W$9,5Q!:6][ID9E MB9AYSW"9_=`GX',44]E=Y+ M"-O7FTMWTW/4/^"CDL2_#[X?0&2-9F\97=QC1YHE9@, M`RH"-#2R#*XW2E_:": M5];+#5TVEO9-J[\UW//OCS\%)/!'AGX;?M'_``3M+70[[PQHOA74O$EEX*8;*P5(G@=I'M]5C"%)X+DSSC8+MY/6X1XG69XS.>"^)ZD\51Q M];$TL-/$S\Z2CYO&7"_\`9&&RGC3A6A3P M5?*H4*N(I8:GR4YT[1:Q"A1Y4XI2E#%JW+5H3E*I)1A/F^\_@7\9=`^-O@73 M_%.E-;VFJQHEIXET!+A9;C0]81<3PLN1(;&8@S6L[JOFQ.,XD21$_*>*>&\7 MPOFM;+\0I3H7<\-7Y7&->BW[LET4X_#5BF^6:>Z<6_U+A?B/!\2Y3A\QPKC" MHTHXB@I*4L/72]^G+9VO[U.3C'G@XRLKV7LM?-GT04`%`!0`4`%`!0`4`%`! M0`4`%`!0`4`%`!0`4`%`!0!\H_M)?LF>!_V@+2/65E'@[XGZ19O;:#X\TZV2 M2::W&7CT3Q58JT:^(?#YF.Y8I76>U9G>SFA\V9)_4R?.;Y-EV=X*KE^98:.(P]3H])0ETG3DO>A4 MC?W9Q::U6L7)/\;Y?V?OC[;?$-?A$_PTU.3QT\Q$-_;K<-\/Y]($FQO&"^,F MMQ;0^&E0B1DE"7ZNRV?V,WC+"W[K#QARY9+[>6"FL\7N?55=4)2M?V_MNE'O M3_C*3Y4G#]\?A4_!O'?VW["&.C'(M9_6';ZQ&-_X'LMG5[5?X7+>;2G^Y?Z\ M?L^?L;>`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`GA9/#/@73&2:X\J;Q!XEU)H[KQ-X MJU&-6!U+7M36)#<2Y>3R[>)8K:W60QV\,2?+7X)B<3B,77JXG%5IU\16DY3J M3DY2E)[MMZ_Y*R6B/WS#8:A@Z%+#86C##8>A%1A3IQ4(0BME&,;)(]DK`V"@ M"GI^G:?H]E;:9I-A9Z7IME$L%GI^GVL%E96D"_=AMK2V1(K>(9.$15`STK2K M6JUZDZU>K.M6J-RG.I)SG*3WE*4FY2;ZMMMD4J5.C3A2HTXTJ5-*,(0BHQA% M;*,8I**[))(2UTW3K&XU"\LM/LK.[U:XBO-5NK6U@M[C4[N"TM]/@NM0GBC5 M[VXCL+2TMDDF9V6&VBC!"1JH`?`OC*6UG\7^"O"7BJ:PCEBL9O$GAS1].1T1F6,J&**2"0*Z\#FV:Y6JD:2U@@A=W1F:.%$8E4`'FXO,7/V73K.#3M/MO/N-,=_L]MI]K:VT,>[;%#;11(%2-5&5'B/B'#4_98?/&-,O-$\-^$_#7A[ M1M1DGEU#2-$T+2])TR^EN;>.TN)+RPL+6*"YDEM8HH7:2-B\<2(Q*J`./%9E MF.-KT\3C&P&`PV!P]23E.EAZ%*C3E*45&4I0IQC&4I1C&+;3;BDGHD9_A[X:_#GPA? M-J?A3P!X*\+ZFUO)9OJ/A[PKH6BWS6DSQ22VK7>FV$,IMWDAA9HR^UFB0D$J M,;8S.\YQ])4,PS?&XVA&2FJ>(Q5>M34TFE)0J5)14DI22E:Z4FKZLQP629-E MM5U\NRC!8"O*+@ZF'PM"A-P;3<'.E3C)Q;C%N-[-Q3:ND=K7F'IG@GQP^+GC M;X5_\(Q_PAWP:\4_%O\`MW^VO[1_X1I]63_A'_[,_LG[)]M_LOPMK/\`Q_?V MC=>7YOV;_D&R[?,^;ROK>%N'Q]G]95+_:/:^UY^3VN* MPW\+V<>;EY_XL;\NG-\CQ3Q%FG#_`-0_LSAK%<0_6_;>T^K.JOJ_LO9<,?]')RO[L)_\`/0/^(B<4?]&TS3[\7_\`.L/^&N/C7_T9M\4O^_OB MS_YUM'_$/.&/^CDY7]V$_P#GH'_$1.*/^C:9I]^+_P#G6'_#7'QK_P"C-OBE M_P!_?%G_`,ZVC_B'G#'_`$@?\`$1.*/^C:9I]^+_\`G6'_ M``UQ\:_^C-OBE_W]\6?_`#K:/^(><,?]')RO[L)_\]`_XB)Q1_T;3-/OQ?\` M\ZP_X:X^-?\`T9M\4O\`O[XL_P#G6T?\0\X8_P"CDY7]V$_^>@?\1$XH_P"C M:9I]^+_^=8?\-<,?]')RO[L M)_\`/0/^(B<4?]&TS3[\7_\`.L/^&N/C7_T9M\4O^_OBS_YUM'_$/.&/^CDY M7]V$_P#GH'_$1.*/^C:9I]^+_P#G6'_#7'QK_P"C-OBE_P!_?%G_`,ZVC_B' MG#'_`$@?\`$1.*/^C:9I]^+_\`G6'_``UQ\:_^C-OBE_W] M\6?_`#K:/^(><,?]')RO[L)_\]`_XB)Q1_T;3-/OQ?\`\ZP_X:X^-?\`T9M\ M4O\`O[XL_P#G6T?\0\X8_P"CDY7]V$_^>@?\1$XH_P"C:9I]^+_^=8?\-<,?]')RO[L)_\`/0/^(B<4?]&T MS3[\7_\`.L/^&N/C7_T9M\4O^_OBS_YUM'_$/.&/^CDY7]V$_P#GH'_$1.*/ M^C:9I]^+_P#G6'_#7'QK_P"C-OBE_P!_?%G_`,ZVC_B'G#'_`$@?\`$1.*/^C:9I]^+_\`G6'_``UQ\:_^C-OBE_W]\6?_`#K:/^(><,?] M')RO[L)_\]`_XB)Q1_T;3-/OQ?\`\ZP_X:X^-?\`T9M\4O\`O[XL_P#G6T?\ M0\X8_P"CDY7]V$_^>@?\1$XH_P"C:9I]^+_^=8?\-<,?]')RO[L)_\`/0/^(B<4?]&TS3[\7_\`.L/^&N/C M7_T9M\4O^_OBS_YUM'_$/.&/^CDY7]V$_P#GH'_$1.*/^C:9I]^+_P#G6'_# M7'QK_P"C-OBE_P!_?%G_`,ZVC_B'G#'_`$@?\`$1.*/^C: M9I]^+_\`G6'_``UQ\:_^C-OBE_W]\6?_`#K:/^(><,?]')RO[L)_\]`_XB)Q M1_T;3-/OQ?\`\ZP_X:X^-?\`T9M\4O\`O[XL_P#G6T?\0\X8_P"CDY7]V$_^ M>@?\1$XH_P"C:9I]^+_^=8?\-<,?]')RO[L)_\`/0/^(B<4?]&TS3[\7_\`.L^V/"FKWOB#POX;U[4]&NO# MFHZWH&CZOJ'AZ^,QO=!O=2TZVO+O1KPW%K:RFZLIYI+:3S+:W??`VZ*-LHOY MAF&'I8/'XW"4,3#&T,+7K4:>(IVY*\*524(5H6A.I3C.=&?-"G+GI2DX2YH0=XN\(O1;]< MAUA0`4`%`!0`4`%`!0`4`%`!0`4`%`!0`4`%`!0`4`%`!0`4`%`!0`4`%`!0 8`4`%`!0`4`%`!0`4`%`!0`4`%`!0!__9 ` end EX-25.1 13 dp13023_ex2501.htm EXHIBIT 25.1
Exhibit 25.1
 
 
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


FORM T-1

STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) __


WILMINGTON TRUST COMPANY
(Exact name of Trustee as specified in its charter)

Delaware
51-0055023
(Jurisdiction of incorporation of organization if not a U.S.
(I.R.S. Employer Identification No.)
national bank)
  

1100 North Market Street
Wilmington, Delaware 19890-0001
(302) 651-1000
(Address of principal executive offices, including zip code)

Michael A. DiGregorio
Senior Vice President and General Counsel
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware  19890-0001
(302) 651-8793
(Name, address, including zip code, and telephone number, including area code, of agent of service)

Patriot Coal Corporation
(Exact name of obligor as specified in its charter)

Delaware
20-5622045
(State or other jurisdiction or incorporation or organization)
(I.R.S. Employer Identification No.)


12312 Olive Boulevard, Suite 400
St. Louis, Missouri 63141
(314) 275-3600
(Address of principal executive offices, including zip code)


Debt Securities
(Title of the indenture securities)

 
 
ITEM 1.     GENERAL INFORMATION.

Furnish the following information as to the trustee:

(a)  Name and address of each examining or supervising authority to which it is subject.

Federal Reserve Bank of Philadelphia                                   State Bank Commissioner
Ten Independence Mall                                                          555 East Loockerman Street, Suite 210
Philadelphia, PA 19106-1574                                                   Dover, Delaware 19901

(b)  Whether it is authorized to exercise corporate trust powers.

The trustee is authorized to exercise corporate trust powers.

ITEM 2.     AFFILIATIONS WITH THE OBLIGOR.

If the obligor is an affiliate of the trustee, describe each affiliation:

Based upon an examination of the books and records of the trustee and information available to the trustee, the obligor is not an affiliate of the trustee.

ITEM 16.  LIST OF EXHIBITS.

List below all exhibits filed as part of this Statement of Eligibility and Qualification.

•  
A copy of the Charter of Wilmington Trust Company (Exhibit 1), which includes the certificate of authority of Wilmington Trust Company to commence business (Exhibit 2) and the authorization of Wilmington Trust Company to exercise corporate trust powers (Exhibit 3).
•  
A copy of the existing By-Laws of Wilmington Trust Company (Exhibit 4).
•  
Consent of Wilmington Trust Company required by Section 321(b) of the Trust Indenture Act (Exhibit 6).
•  
A copy of the latest Report of Condition of Wilmington Trust Company (Exhibit 7).

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 27th day of February, 2009.
 
 
[SEAL]
    
WILMINGTON TRUST COMPANY
  
             
             
Attest:
/s/ MICHAEL H. WASS
   By:
/s/ DENISE M. GERAN
  
 
Assistant Secretary
     Name:
Denise M. Geran
  
        Title:
Vice President
  
 

EXHIBIT 1*

AMENDED CHARTER

Wilmington Trust Company

Wilmington, Delaware

As existing on May 9, 1987





 







*Exhibit 1 also constitutes Exhibits 2 and 3.
 
 
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company

Wilmington Trust Company, originally incorporated by an Act of the General Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which company was changed to "Wilmington Trust Company" by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act of Incorporation of which company has been from time to time amended and changed by merger agreements pursuant to the corporation law for state banks and trust companies of the State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same as so altered and amended shall in its entirety read as follows:

First: - The name of this corporation is Wilmington Trust Company.

Second: - The location of its principal office in the State of Delaware is at Rodney Square North, in the City of Wilmington, County of New Castle; the name of its resident agent is Wilmington Trust Company whose address is Rodney Square North, in said City. In addition to such principal office, the said corporation maintains and operates branch offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle County, Delaware, and such other branch offices or places of business as may be authorized from time to time by the agency or agencies of the government of the State of Delaware empowered to confer such authority.
 
Third: - (a) The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by this Corporation are to do any or all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, viz.:

(1)  
To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created.
 
(2)  
To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim

 
or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere.

(3)  
To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business.

(4)  
To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches.

(5)  
To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property.

(6)  
To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality.
 
(7)  
To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations.

(8)  
To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere.

(9)  
To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court,

2
 
officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment.

(10)  
And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation.

(11)  
To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein.

(b) In furtherance of, and not in limitation, of the powers conferred by the laws of the State of Delaware, it is hereby expressly provided that the said Corporation shall also have the following powers:

(1)  
To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world.

(2)  
To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business.

(3)  
To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell,
 
3
 
exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated.

(4)  
To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments.

(5)  
To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place.

(6)  
It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers.

Fourth: - (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is forty-one million (41,000,000) shares, consisting of:

(1)  
One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as "Preferred Stock"); and

(2)  
Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as "Common Stock").

(b) Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors each of said series to be distinctly designated. All shares of any one series of Preferred Stock shall be alike in every particular, except that there may be different dates from which dividends, if any, thereon shall be cumulative, if made cumulative. The voting powers and the preferences and relative, participating, optional and other special rights of each such series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and, subject to the provisions of subparagraph 1 of Paragraph (c) of this Article Fourth, the Board of Directors of the Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of a particular series of Preferred Stock, the voting powers and the designations, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions of such series, including, but without limiting the generality of the foregoing, the following:

(1)  
The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where

4
 
otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors;

(2)  
The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative;

(3)  
The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange;

(4)  
Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed.

(5)  
The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation.

(6)  
The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and

(7)  
The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine.

(c)  
(1) After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article Fourth), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article Fourth), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article Fourth, then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors.
 
(2)  
After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article Fourth), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation,

5
 
distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively.

(3)
Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article Fourth, each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders.
 
(d) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion.

(e) The relative powers, preferences and rights of each series of Preferred Stock in relation to the relative powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in section (b) of this Article Fourth and the consent, by class or series vote or otherwise, of the holders of such of the series of Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether or not the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding series, or any of them; provided, however, that the Board of Directors may provide in the resolution or resolutions as to any series of Preferred Stock adopted pursuant to section (b) of this Article Fourth that the consent of the holders of a majority (or such greater proportion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other series of Preferred Stock.
 
(f) Subject to the provisions of section (e), shares of any series of Preferred Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors.

(g) Shares of Common Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors.

6
 
(h) The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote thereon.

Fifth: - (a) The business and affairs of the Corporation shall be conducted and managed by a Board of Directors. The number of directors constituting the entire Board shall be not less than five nor more than twenty-five as fixed from time to time by vote of a majority of the whole Board, provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office, and provided further, that the number of directors constituting the whole Board shall be twenty-four until otherwise fixed by a majority of the whole Board.
 
(b) The Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the whole Board permits, with the term of office of one class expiring each year. At the annual meeting of stockholders in 1982, directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting. Any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual election of directors. At such election, the stockholders shall elect a successor to such director to hold office until the next election of the class for which such director shall have been chosen and until his successor shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director.

(c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation), any director or the entire Board of Directors of the Corporation may be removed at any time without cause, but only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose.
 
(d) Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Such nominations shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days prior to any meeting of the stockholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the close of the seventh day following the day on which notice of the meeting was mailed to stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by the Chairman on behalf of the Board.

(e) Each notice under subsection (d) shall set forth (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the
 
7
 
principal occupation or employment of such nominee and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee.

(f)  The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.

(g) No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied.
 
Sixth: - The Directors shall choose such officers, agents and servants as may be provided in the By-Laws as they may from time to time find necessary or proper.

Seventh: - The Corporation hereby created is hereby given the same powers, rights and privileges as may be conferred upon corporations organized under the Act entitled "An Act Providing a General Corporation Law", approved March 10, 1899, as from time to time amended.

Eighth: - This Act shall be deemed and taken to be a private Act.

Ninth: - This Corporation is to have perpetual existence.

Tenth: - The Board of Directors, by resolution passed by a majority of the whole Board, may designate any of their number to constitute an Executive Committee, which Committee, to the extent provided in said resolution, or in the By-Laws of the Company, shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it.

Eleventh: - The private property of the stockholders shall not be liable for the payment of corporate debts to any extent whatever.

Twelfth: - The Corporation may transact business in any part of the world.

Thirteenth: - The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by them, provided however, that any such additional By-Laws, alterations or repeal may be adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class).

Fourteenth: - Meetings of the Directors may be held outside of the State of Delaware at such places as may be from time to time designated by the Board, and the Directors may keep the books of the Company outside of the State of Delaware at such places as may be from time to time designated by them.

8
 
Fifteenth: - (a) (1) In addition to any affirmative vote required by law, and except as otherwise expressly provided in sections (b) and (c) of this Article Fifteenth:

(A)

(B)  
any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or
 
(C)  
the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or

(D)  
the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or

(E)  
any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder,

shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for the purpose of this Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise.

(2)  
The term "business combination" as used in this Article Fifteenth shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of paragraph 1 of the section (a).

(b) The provisions of section (a) of this Article Fifteenth shall not be applicable to any particular business combination and such business combination shall require only such affirmative vote as is required by law and any other provisions of the Charter or Act of
 
9
 
Incorporation or By-Laws if such business combination has been approved by a majority of the whole Board.

(c)  For the purposes of this Article Fifteenth:

(1)
A "person" shall mean any individual, firm, corporation or other entity.
 
(2)  
"Interested Stockholder" shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on such business combination, or immediately prior to the consummation of any such transaction:

(A)  
is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or

(B)  
is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or

(C)  
is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933.

(3)  
A person shall be the "beneficial owner" of any Voting Shares:

(A)  
which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or

(B)  
which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or

(C)  
which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Corporation.

(4)  
The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise.

10
 
(5)  
"Affiliate" and "Associate" shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981.

(6) 
"Subsidiary" shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation.
 
(d) majority of the directors shall have the power and duty to determine for the purposes of this Article Fifteenth on the basis of information known to them, (1) the number of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or Associate of another, (3) whether a person has an agreement, arrangement or understanding with another as to the matters referred to in paragraph (3) of section (c), or (4) whether the assets subject to any business combination or the consideration received for the issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate fair market value of $1,000,000 or more.

(e) Nothing contained in this Article Fifteenth shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law.

Sixteenth: Notwithstanding any other provision of this Charter or Act of Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative vote of the holders of at least two-thirds of the outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or Sixteenth of this Charter or Act of Incorporation.

Seventeenth:

(a) a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Laws as the same exists or may hereafter be amended.

(b) Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a Director of the Corporation existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification."

11
 
EXHIBIT 4
 
BY-LAWS

WILMINGTON TRUST COMPANY
 
WILMINGTON, DELAWARE
 
As existing on December 16, 2004


 
BY-LAWS OF WILMINGTON TRUST COMPANY


ARTICLE 1
Stockholders' Meetings

Section 1. Annual Meeting. The annual meeting of stockholders shall be held on the third Thursday in April each year at the principal office at the Company or at such other date, time or place as may be designated by resolution by the Board of Directors.

Section 2. Special Meetings. Special meetings of stockholders may be called at any time by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President.

Section 3. Notice. Notice of all meetings of the stockholders shall be given by mailing to each stockholder at least ten (10) days before said meeting, at his last known address, a written or printed notice fixing the time and place of such meeting.

Section 4. Quorum. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a smaller number of shares may adjourn from time to time, without further notice, until a quorum is secured. At each annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each share of stock registered in the stockholder's name on the books of the Company on the record date for any such meeting as determined herein.

ARTICLE 2
Directors

Section 1. Management. The affairs and business of the Company shall be managed by or under the direction of the Board of Directors.

Section 2. Number. The authorized number of directors that shall constitute the Board of Directors shall be fixed from time to time by or pursuant to a resolution passed by a majority of the Board of Directors within the parameters set by the Charter of the Company. No more than two directors may also be employees of the Company or any affiliate thereof.

Section 3. Qualification. In addition to any other provisions of these Bylaws, to be qualified for nomination for election or appointment to the Board of Directors, a person must have not attained the age of sixty-nine years at the time of such election or appointment, provided however, the Nominating and Corporate Governance Committee may waive such qualification as to a particular candidate otherwise qualified to serve as a director upon a good faith determination by such committee that such a waiver is in the best interests of the Company and its stockholders. The Chairman of the Board and the Chief Executive Officer shall not be qualified to continue to serve as directors upon the termination of their service in those offices for any reason.
 
Section 4. Meetings. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Board of Directors, the Chief Executive Officer or the President.

 
Section 5. Special Meetings. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board, the Chief Executive Officer or the President, and shall be called upon the written request of a majority of the directors.

Section 6. Quorum. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors.

Section 7. Notice. Written notice shall be sent by mail to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be mailed not less than two days before the time of holding such meeting.

Section 8. Vacancies. In the event of the death, resignation, removal, inability to act or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director's successor shall have been duly elected and qualified.

Section 9. Organization Meeting. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Audit Committee, a Compensation Committee and a Nominating and Corporate Governance Committee, and shall elect from its own members a Chairman of the Board, a Chief Executive Officer and a President, who may be the same person. The Board of Directors shall also elect at such meeting a Secretary and a Chief Financial Officer, who may be the same person, and may appoint at any time such committees as it may deem advisable. The Board of Directors may also elect at such meeting one or more Associate Directors. The Board of Directors, or a committee designated by the Board of Directors may elect or appoint such other officers as they may deem advisable.

Section 10. Removal. The Board of Directors may at any time remove, with or without cause, any member of any committee appointed by it or any associate director or officer elected by it and may appoint or elect his successor.

Section 11. Responsibility of Officers. The Board of Directors may designate an officer to be in charge of such departments or divisions of the Company as it may deem advisable.

Section 12. Participation in Meetings. The Board of Directors or any committee of the Board of Directors may participate in a meeting of the Board of Directors or such committee, as the case may be, by conference telephone, video facilities or other communications equipment. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all of the members of the Board of Directors or the committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the Board of Directors or such committee.

2
 
ARTICLE 3
Committees of the Board of Directors

Section 1.  Audit Committee.

(A) The Audit Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board.

(B) The Audit Committee shall have general supervision over the Audit Services Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit Services Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect to any other matters pertaining to auditing the Company as it shall deem desirable.

(C) The Audit Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee’s members shall deem it to be proper for the transaction of its business. A majority of the Committee’s members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.

Section 2.  Compensation Committee.

(A) The Compensation Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors.

(B) The Compensation Committee shall in general advise upon all matters of policy concerning compensation, including salaries and employee benefits.

(C) The Compensation Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee’s members shall deem it to be proper for the transaction of its business. A majority of the Committee’s members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.

Section 3.  Nominating and Corporate Governance Committee.

(A) The Nominating and Corporate Governance Committee shall be composed of not more than five members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors.


(B) The Nominating and Corporate Governance Committee shall provide counsel and make recommendations to the Chairman of the Board and the full Board with respect to the performance of the Chairman of the Board and the Chief Executive Officer, candidates for membership on the Board of Directors and its committees, matters of corporate governance, succession planning for the Company’s

3
 
executive management and significant shareholder relations issues.

(C) The Nominating and Corporate Governance Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President, or a majority of the Committee’s members shall deem it to be proper for the transaction of its business. A majority of the Committee’s members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.

Section 4. Other Committees. The Company may have such other committees with such powers as the Board may designate from time to time by resolution or by an amendment to these Bylaws.

Section 5.  Associate Directors.

(A) Any person who has served as a director may be elected by the Board of Directors as an associate director, to serve at the pleasure of the Board of Directors.

(B) Associate directors shall be entitled to attend all meetings of directors and participate in the discussion of all matters brought to the Board of Directors, but will not have a right to vote.

Section 6. Absence or Disqualification of Any Member of a Committee. In the absence or disqualification of any member of any committee created under Article III of these Bylaws, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

ARTICLE 4
Officers

Section 1. Chairman of the Board. The Chairman of the Board shall preside at all meetings of the Board of Directors and shall have such further authority and powers and shall perform such duties the Board of Directors may assign to him from time to time.

Section 2. Chief Executive Officer. The Chief Executive Officer shall have the powers and duties pertaining to the office of Chief Executive Officer conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to him from time to time. In the absence of the Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board.

Section 3. President. The President shall have the powers and duties pertaining to the office of the President conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to him from time to time. In the absence of the Chairman of the Board and the Chief Executive Officer, the President shall have the powers and duties of the Chairman of the Board.

Section 4. Duties. The Chairman of the Board, the Chief Executive Officer or the President, as designated by the Board of Directors, shall carry into effect all legal directions of the Board of Directors and shall at all times exercise general supervision over the interest, affairs and operations of the Company and perform all duties incident to his office.

4
 
Section 5. Vice Presidents. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all of the duties of the Chairman of the Board, the Chief Executive Officer and/or the President and such other powers and duties incident to their respective offices or as the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President or the officer in charge of the department or division to which they are assigned may assign to them from time to time.

Section 6. Secretary. The Secretary shall attend to the giving of notice of meetings of the stockholders and the Board of Directors, as well as the committees thereof, to the keeping of accurate minutes of all such meetings, recording the same in the minute books of the Company and in general notifying the Board of Directors of material matters affecting the Company on a timely basis. In addition to the other notice requirements of these Bylaws and as may be practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any such meeting. He shall have custody of the corporate seal, affix the same to any documents requiring such corporate seal, attest the same and perform other duties incident to his office.

Section 7. Chief Financial Officer. The Chief Financial Officer shall have general supervision over all assets and liabilities of the Company. He shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all transactions of the Company. He shall have general supervision of the expenditures of the Company and periodically shall report to the Board of Directors the condition of the Company, and perform such other duties incident to his office or as the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President may assign to him from time to time.

Section 8. Controller. There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors or the Audit Committee at appropriate times a report relating to the general condition and internal operations of the Company and perform other duties incident to his office.

There may be one or more subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller.

Section 9. Audit Officers. The officer designated by the Board of Directors to be in charge of the Audit Services Division of the Company, with such title as the Board of Directors shall prescribe, shall report to and be directly responsible to the Audit Committee and the Board of Directors.

There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and such duties as may be prescribed by the officer in charge of the Audit Services Division.

Section 10. Other Officers. There may be one or more officers, subordinate in rank to all Vice Presidents with such functional titles as shall be determined from time to time by the Board of Directors, who shall ex officio hold the office of Assistant Secretary of the Company and who may perform such duties as may be prescribed by the officer in charge of the department or division to which they are assigned.

Section 11. Powers and Duties of Other Officers. The powers and duties of all other officers of the Company shall be those usually pertaining to their respective offices, subject to the direction of the Board of

5
 
Directors, the Chairman of the Board, the Chief Executive Officer or the President and the officer in charge of the department or division to which they are assigned.

Section 12. Number of Offices. Any one or more offices of the Company may be held by the same person, except that (A) no individual may hold more than one of the offices of Chief Financial Officer, Controller or Audit Officer and (B) none of the Chairman of the Board, the Chief Executive Officer or the President may hold any office mentioned in Section 12(A).

ARTICLE 5
Stock and Stock Certificates

Section 1. Transfer. Shares of stock shall be transferable on the books of the Company and a transfer book shall be kept in which all transfers of stock shall be recorded.

Section 2. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the Company by the Chairman of the Board, the Chief Executive Officer or the President or a Vice President, and by the Secretary or an Assistant Secretary, of the Company, certifying the number of shares owned by him in the Company. The corporate seal affixed thereto, and any of or all the signatures on the certificate, may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors.

Section 3. Record Date. The Board of Directors is authorized to fix in advance a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of any dividend, or to any allotment of rights, or to exercise any rights in respect of any change, conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days preceding the date of any meeting of stockholders or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent.

ARTICLE 6
Seal

The corporate seal of the Company shall be in the following form:

Between two concentric circles the words “Wilmington Trust Company” within the inner circle the words “Wilmington, Delaware.”

ARTICLE 7
Fiscal Year

The fiscal year of the Company shall be the calendar year.

6
 
ARTICLE 8
Execution of Instruments of the Company
 
The Chairman of the Board, the Chief Executive Officer, the President or any Vice President, however denominated by the Board of Directors, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all other instruments incident to the business of this Company or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors, and any and all such instruments shall have the same force and validity as though expressly authorized by the Board of Directors.

ARTICLE 9
Compensation of Directors and Members of Committees

Directors and associate directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as the Board of Directors may from time to time determine. Directors and associate directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members of committees as the Board of Directors shall from time to time determine and directors and associate directors may be authorized by the Company to perform such special services as the Board of Directors may from time to time determine in accordance with any guidelines the Board of Directors may adopt for such services, and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors.

ARTICLE 10
Indemnification

Section 1. Persons Covered. The Company shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he, or a person for whom he is the legal representative, is or was a director or associate director of the Company, a member of an advisory board the Board of Directors of the Company or any of its subsidiaries may appoint from time to time or is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or non-profit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Company shall be required to indemnify such a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors.

The Company may indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or threatened to be made a party or is otherwise involved in any proceeding by reason of the fact that he, or a person for whom he is the legal representative, is or was an officer, employee or agent of the Company or a director, officer, employee or agent of a subsidiary or affiliate of the Company, against all liability and loss suffered and expenses reasonably incurred by such person. The Company may indemnify any such person in connection with a

7

proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors.

Section 2. Advance of Expenses. The Company shall pay the expenses incurred in defending any proceeding involving a person who is or may be indemnified pursuant to Section 1 in advance of its final disposition, provided, however, that the payment of expenses incurred by such a person in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by that person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article 10 or otherwise.

Section 3. Certain Rights. If a claim under this Article 10 for (A) payment of expenses or (B) indemnification by a director, associate director, member of an advisory board the Board of Directors of the Company or any of its subsidiaries may appoint from time to time or a person who is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or nonprofit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, is not paid in full within sixty days after a written claim therefor has been received by the Company, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action, the Company shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.


Section 4. Non-Exclusive. The rights conferred on any person by this Article 10 shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Charter or Act of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.


Section 5. Reduction of Amount. The Company's obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise or nonprofit entity.

Section 6. Effect of Modification. Any amendment, repeal or modification of the foregoing provisions of this Article 10 shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such amendment, repeal or modification.

ARTICLE 11
Amendments to the Bylaws

These Bylaws may be altered, amended or repealed, in whole or in part, and any new Bylaw or Bylaws adopted at any regular or special meeting of the Board of Directors by a vote of a majority of all the members of the Board of Directors then in office.

8
 
ARTICLE 12
Miscellaneous

Whenever used in these Bylaws, the singular shall include the plural, the plural shall include the singular unless the context requires otherwise and the use of either gender shall include both genders.

 
9

EXHIBIT 6


 

Section 321(b) Consent


Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor.
 
 
 
 
    
WILMINGTON TRUST COMPANY
  
             
             
Dated:
February 27, 2009
   By:
/s/ DENISE M. GERAN
  
        Name:
Denise M. Geran
  
        Title:
Vice President
  
 
 
EXHIBIT 7

NOTICE


This form is intended to assist state nonmember banks and savings banks with state ublication requirements.  It has not been approved by any state banking authorities. efer to your appropriate state banking authorities for your state publication requirements.



R E P O R T   O F   C O N D I T I O N


Consolidating domestic subsidiaries of the

          WILMINGTON TRUST COMPANY            of  WILMINGTON 
                               Name of Bank                                             City

in the State of DELAWARE, at the close of business on September 30, 2008.

ASSETS

Thousands of dollars
Cash and balances due from depository institutions:
  
Noninterest-bearing balances and currency and coins
181,696
Interest-bearing balances
  0
Held-to-maturity securities
 191,376
Available-for-sale securities
835,209
Federal funds sold in domestic offices
283,700
Securities purchased under agreements to resell
0
Loans and lease financing receivables:
  
Loans and leases held for sale
  4,169
Loans and leases, net of unearned income
  8,449,469
LESS:  Allowance for loan and lease losses
  97,511
Loans and leases, net of unearned income, allowance, and reserve
8,662,356
Assets held in trading accounts
0
Premises and fixed assets (including capitalized leases)
129,314
Other real estate owned
  14,517
Investments in unconsolidated subsidiaries and associated companies
6,593
Intangible assets:
  
a.  Goodwill
 1,946
b.  Other intangible assets
  3,107
Other assets
 381,725
Total assets
 10,646,532


CONTINUED ON NEXT PAGE
 
 
LIABILITIES

Deposits:

Deposits:
  
In domestic offices
7,974,970
Noninterest-bearing
  802,189
Interest-bearing
  6,981,811
Federal funds purchased in domestic offices
   848,287
Securities sold under agreements to repurchase
 362,014
Trading liabilities (from Schedule RC-D)
0
Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases)
  399,490
Subordinated notes and debentures
0
Other liabilities (from Schedule RC-G)
 230,426
Total liabilities
9,815,187
   
   
EQUITY CAPITAL
  
   
Perpetual preferred stock and related surplus
0
Common Stock
500
Surplus (exclude all surplus related to preferred stock)
129,709
a.  Retained earnings
846,146
b.  Accumulated other comprehensive income
   (97,010)
Total equity capital
879,345
Total liabilities, minority interest, and equity capital
 10,694,532

-----END PRIVACY-ENHANCED MESSAGE-----