exv4w3






Exhibit 4.3




EXECUTION VERSION




REGISTRATION RIGHTS AGREEMENT




July 31, 2009




Banc of America Securities LLC

Citigroup Global Markets Inc.

Morgan Stanley & Co. Incorporated

J.P. Morgan Securities Inc.
   As
Representatives of the Initial Purchasers

c/o Banc of America Securities LLC

One Bryant Park

New York, New York 10036




Dear Sirs:




          Arch Coal, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to certain
purchasers (the “Initial Purchasers”), upon the terms set forth in a Purchase Agreement dated July
28, 2009 (the “Purchase Agreement”) relating to the initial placement (the “Initial Placement”) of
the Company’s 8.750% Senior Notes due 2016 (the “Notes”). The Notes will be fully and
unconditionally guaranteed as to payment of principal, premium if any, and interest (the
“Guarantees” and together with the Notes hereinafter referred to as the “Securities”) by each of
the Company’s subsidiaries listed in Schedule B to the Purchase Agreement (the “Guarantors”). To
induce the Initial Purchasers to enter into the Purchase Agreement and to satisfy a condition of
your obligations thereunder, each of the Company and the Guarantors, jointly and severally, agrees
with you for your benefit and the benefit of the holders from time to time of the Securities
(including the Initial Purchasers) (each a “Holder” and, together, the “Holders”), as follows:



          1. Definitions. Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:



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



          “Affiliate” of any specified Person shall mean any other Person that, directly or indirectly,
is in control of, is controlled by, or is under common control with, such specified Person. For
purposes of this definition, control of a Person shall mean the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person whether by contract or
otherwise; and the terms “controlling” and “controlled” shall have meanings correlative to the
foregoing.



          “Broker-Dealer” shall mean any broker or dealer registered as such under the Exchange Act.



 









 





          “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.



          “Company” shall have the meaning set forth in the preamble hereto.



          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.



          “Exchange Offer Registration Period” shall mean the one-year period following the consummation
of the Registered Exchange Offer, exclusive of any period during which any stop order shall be in
effect suspending the effectiveness of the Exchange Offer Registration Statement.



          “Exchange Offer Registration Statement” shall mean a registration statement of each of the
Company and the Guarantors on an appropriate form under the Act with respect to the Registered
Exchange Offer, all amendments and supplements to such registration statement, including
post-effective amendments thereto, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.



          “Exchanging Dealer” shall mean any Holder (which may include any Initial Purchaser) that is a
Broker-Dealer and elects to exchange for New Securities any Securities that it acquired for its
own account as a result of market-making activities or other trading activities (but not directly
from any Guarantor or any Affiliate of any Guarantor) for New Securities.



          “Freely Transferable” shall mean a Security that at any time of determination (i) may be
transferred in accordance with Rule 144 by a person that is not an “affiliate” (as defined in Rule
144) of the Company where no conditions under Rule 144 are then applicable (other than the holding
period requirement of paragraph (d) of Rule 144 so long as such holding period requirement is
satisfied at such time of determination) and (ii) does not bear any restrictive legends relating to
the Act.



          “Free Writing Prospectus” shall mean each free writing prospectus (as defined in Rule 433
under the Act) prepared by or on behalf of the Company or the Guarantors or used or referred to by
the Company or the Guarantors in connection with the sale of the Securities or the New Securities.



          “Guarantors” shall have the meaning set forth in the preamble hereto.



          “Holder” shall have the meaning set forth in the preamble hereto.



          “Indenture” shall mean the Indenture relating to the Securities, dated as of July 31, 2009,
among the Company, each of the Guarantors and U.S. Bank National Association, as trustee, as the
same may be amended from time to time in accordance with the terms thereof.



          “Initial Placement” shall have the meaning set forth in the preamble hereto.



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          “Initial Purchaser” shall have the meaning set forth in the preamble hereto.



          “Losses” shall have the meaning set forth in Section 7(d) hereof.



          “Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of
Securities registered under a Registration Statement.



          “Managing Underwriters” shall mean the investment banker or investment bankers and manager or
managers that shall administer an underwritten offering.



          “New Securities” shall mean debt securities of the Company identical in all material respects
to the Securities (except that the cash interest and interest rate step-up provisions and the
transfer restrictions shall be modified or eliminated, as appropriate) and to be issued under the
Indenture or the New Securities Indenture.



          “New Securities Indenture” shall mean an indenture among the Company, each of the Guarantors
and the New Securities Trustee, identical in all material respects to the Indenture (except that
the cash interest and interest rate step-up provisions will be modified or eliminated, as
appropriate).



          “New Securities Trustee” shall mean a bank or trust company reasonably satisfactory to the
Initial Purchasers, as trustee with respect to the New Securities under the New Securities
Indenture.



          “Notes” shall have the meaning set forth in the preamble hereto.



          “Offering Memorandum” shall have the meaning set forth in the Purchase Agreement.



          “Prospectus” shall mean the prospectus included in any Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Securities or the New Securities covered by such Registration Statement, and all
amendments and supplements thereto and all material incorporated by reference therein.



          “Purchase Agreement” shall have the meaning set forth in the preamble hereto.



          “Registered Exchange Offer” shall mean the proposed offer of the Company and the Guarantors to
issue and deliver to the Holders of the Securities that are not prohibited by any law or policy of
the Commission from participating in such offer, in exchange for the Securities, a like aggregate
principal amount of the New Securities.



          “Registration Statement” shall mean any Exchange Offer Registration Statement or Shelf
Registration Statement that covers any of the Securities or the New Securities pursuant to the
provisions of this Agreement, any amendments and supplements to such registration



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statement,
including post-effective amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.



          “Rule 144” shall mean Rule 144 under the Act.



          “Securities” shall have the meaning set forth in the preamble hereto.



          “Shelf Registration” shall mean a registration effected pursuant to Section 3 hereof.



          “Shelf Registration Period” has the meaning set forth in Section 3(b) hereof.



          “Shelf Registration Statement” shall mean a “shelf” registration statement of the Company and
the Guarantors pursuant to the provisions of Section 3 hereof which covers some or all of the
Securities or New Securities, as applicable, on an appropriate form under Rule 415 under the Act,
or any similar rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by reference therein.



          “Trustee” shall mean the trustee with respect to the Securities and New Securities under the
Indenture.



          “underwriter” shall mean any underwriter of Securities in connection with an offering thereof
under a Shelf Registration Statement.



          2. (a) Unless prohibited under applicable law or policy of the Commission, the Company and
the Guarantors shall prepare and file with the Commission an Exchange Offer Registration Statement
with respect to the Registered Exchange Offer and use their reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective under the Act within 365 days of the date
hereof (or if such 365th day is not a Business Day, the next succeeding Business Day).



          (b) Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the
Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder electing to exchange Securities for New Securities
(assuming that such Holder is not an Affiliate of the any Guarantor, acquires the New Securities in
the ordinary course of such Holder’s business, has no arrangements with any Person to participate
in the distribution of the New Securities and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer) to trade such New Securities from
and after their receipt without any limitations or restrictions under the Act and without material
restrictions under the securities laws of a substantial proportion of the several states of the
United States. The Company and the Guarantors shall consummate such Registered Exchange Offer
within 410 days of the date hereof (or if such 410th day is not a Business Day, the next
succeeding Business Day).



          (c) In connection with the Registered Exchange Offer, the Company and the Guarantors shall:



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          (i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and related
documents;




          (ii) keep the Registered Exchange Offer open for not less than 30 Business Days and not
more than 45 Business Days after the date notice thereof is mailed to the Holders (or, in
each case, longer if required by applicable law);




          (iii) use their reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act, supplemented and amended as required, under
the Act to ensure that it is available for sales of New Securities by Exchanging Dealers
during the Exchange Offer Registration Period;




          (iv) utilize the services of a depositary for the Registered Exchange Offer with an
address in the Borough of Manhattan in New York City, which may be the Trustee, the New
Securities Trustee or an Affiliate of either of them;




          (v) permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last Business Day on which the Registered Exchange Offer is
open;




          (vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a
supplemental letter to the Commission (A) stating that the Company and the Guarantors are
conducting the Registered Exchange Offer in reliance on the position of the Commission in
Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), Morgan Stanley
and Co., Inc. (pub. avail. June 5, 1991); and (B) including a representation that the
Company and each of the Guarantors has not entered into any arrangement or understanding
with any Person to distribute the New Securities to be received in the Registered Exchange
Offer and that, to the best of each of the Company’s and the Guarantors’ information and
belief, each Holder participating in the Registered Exchange Offer is acquiring the New
Securities in the ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the New Securities; and




          (vii) comply in all material respects with all applicable laws.



          (d) As soon as practicable after the close of the Registered Exchange Offer, the Company and
the Guarantors shall:




          (i) accept for exchange all Securities tendered and not validly withdrawn pursuant to
the Registered Exchange Offer;




          (ii) deliver to the Trustee for cancellation in accordance with Section 4(s) all
Securities so accepted for exchange; and




          (iii) cause the New Securities Trustee promptly to authenticate and deliver to each
Holder of Securities a principal amount of New Securities equal to the principal amount of
the Securities of such Holder so accepted for exchange.



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          (e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder
using the Registered Exchange Offer to participate in a distribution of the New Securities (x)
could not under Commission policy as in effect on the date of this Agreement rely on the position
of the Commission in Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991) and Exxon
Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the Commission’s
letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply
with the registration and prospectus delivery requirements of the Act in connection with any
secondary resale transaction must be covered by an effective registration statement containing the
selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K
under the Act if the resales are of New Securities obtained by such Holder in exchange for
Securities acquired by such Holder directly from the Company or the Guarantors or one of their
Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company and the Guarantors that, at the time of the consummation of
the Registered Exchange Offer:




          (i) any New Securities received by such Holder will be acquired in the ordinary course
of business;




          (ii) such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Securities or the New Securities within the meaning
of the Act; and




          (iii) such Holder is not an Affiliate of the Company or any Guarantor.



          (f) If any Initial Purchaser determines that it is not eligible to participate in the
Registered Exchange Offer with respect to the exchange of Securities constituting any portion of an
unsold allotment, at the request of such Initial Purchaser, the Company and the Guarantors shall
issue and deliver to such Initial Purchaser or the Person purchasing New Securities registered
under a Shelf Registration Statement as contemplated by Section 3 hereof from such Initial
Purchaser, in exchange for such Securities, a like principal amount of New Securities. The Company
and the Guarantors shall use their reasonable best efforts to cause the CUSIP Service Bureau to
issue the same CUSIP number for such New Securities as for New Securities issued pursuant to the
Registered Exchange Offer.



          3. Shelf Registration. (a) If (i) due to any change in law or applicable interpretations
thereof by the Commission’s staff, the Company and the Guarantors determines upon advice of their
outside counsel that they are not permitted to effect the Registered Exchange Offer as contemplated
by Section 2 hereof; (ii) for any other reason the Registered Exchange Offer is not consummated
within 410 days of the date hereof; (iii) any Initial Purchaser so requests with respect to
Securities that are not eligible to be exchanged for New Securities in the Registered Exchange
Offer and that are held by it following consummation of the Registered Exchange Offer; (iv) any
Holder (other than an Initial Purchaser) is not eligible to participate in the Registered Exchange
Offer; or (v) in the case of any Initial Purchaser that participates in the Registered Exchange
Offer or acquires New Securities pursuant to Section 2(f) hereof, such Initial Purchaser does not
receive freely tradeable New Securities in exchange for Securities constituting any portion of an
unsold allotment (it being understood that (x) the requirement that an Initial Purchaser deliver a
Prospectus containing the information required by



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Item 507 or 508 of Regulation S-K under the Act
in connection with sales of New Securities acquired in exchange for such Securities shall result in
such New Securities being not “freely tradeable”; and (y) the requirement that an Exchanging Dealer
deliver a Prospectus in connection with sales of New Securities acquired in the Registered Exchange
Offer in exchange for Securities acquired as a result of market-making activities or other trading
activities shall not result in such New Securities being not “freely tradeable”), the Company and
the Guarantors shall effect a Shelf Registration Statement in accordance with subsection (b) below.



          (b) (i) The Company and the Guarantors shall as promptly as practicable file with the
Commission and thereafter the Company and the Guarantors shall use their reasonable best efforts to
cause to be declared effective under the Act a Shelf Registration Statement relating to the offer
and sale of the Securities or the New Securities, as applicable, by the Holders thereof from time
to time in accordance with the methods of distribution elected by such Holders and set forth in
such Shelf Registration Statement; provided, however, that no Holder (other than an Initial
Purchaser) shall be entitled to have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all of the provisions of this
Agreement applicable to such Holder; and provided further, that with respect to New Securities
received by an Initial Purchaser in exchange for Securities constituting any portion of an unsold
allotment, the Company and the Guarantors may, if permitted by current interpretations by the
Commission’s staff, file a post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Item 507 or 508 of Regulation S-K, as applicable, in
satisfaction of their obligations under this subsection with respect thereto, and any such Exchange
Offer Registration Statement, as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.




          (ii) The Company and the Guarantors shall use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended as required by
the Act, in order to permit the Prospectus forming part thereof to be usable by Holders
until all of the Securities are Freely Transferable (in any such case, such period being
called the “Shelf Registration Period”). Each of the Company and the Guarantors shall be
deemed not to have used its reasonable best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action that would result
in Holders of Securities covered thereby not being able to offer and sell such Securities
during that period, unless (A) such action is required by applicable law; or (B) such action
is taken by the Company and the Guarantors in good faith and for valid business reasons (not
including avoidance of the Company’s and Guarantors’ obligations hereunder), including the
acquisition or divestiture of assets, so long as each of the Company and the Guarantors
promptly thereafter complies with the requirements of Section 4(k) hereof, if applicable.




          (iii) The Company and the Guarantors shall cause the Shelf Registration Statement and
the related Prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement or such amendment or supplement, (A) to comply in all
material respects with the applicable requirements of the Act and the rules and regulations
of the Commission; and (B) not to contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or



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necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading.



          4. Additional Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration Statement, the following
provisions shall apply.



          (a) The Company and the Guarantors shall:




          (i) furnish to you, not less than five Business Days prior to the filing thereof with
the Commission, a copy of any Shelf Registration Statement, and each amendment thereof and
each amendment or supplement, if any, to the Prospectus included therein (including all
documents incorporated by reference therein after the initial filing) and shall use their
best efforts to reflect in each such document, when so filed with the Commission, such
comments as you reasonably propose;




          (ii) include the information set forth in Annex A hereto on the facing page of the
Exchange Offer Registration Statement, in Annex B hereto in the forepart of the Exchange
Offer Registration Statement in a section setting forth details of the Exchange Offer, in
Annex C hereto in the underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in Annex D hereto in the letter
of transmittal delivered pursuant to the Registered Exchange Offer;




          (iii) if requested by an Initial Purchaser, include the information required by Item
507 or 508 of Regulation S-K, as applicable, in the Prospectus contained in the Exchange
Offer Registration Statement; and




          (iv) in the case of a Shelf Registration Statement, include the names of the Holders
that propose to sell Securities pursuant to the Shelf Registration Statement as selling
security holders.



          (b) The Company and the Guarantors shall ensure that:




          (i) any Registration Statement and any amendment thereto and any Prospectus forming
part thereof and any amendment or supplement thereto complies in all material respects with
the Act and the rules and regulations thereunder; and




          (ii) any Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading.



          (c) The Company shall advise you, the Holders of Securities covered by any Shelf Registration
Statement and any Exchanging Dealer under any Exchange Offer Registration Statement that has been
provided in writing to the Company a telephone or facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, shall confirm such advice in writing
(which notice pursuant to clauses (ii)-(v) hereof shall be



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accompanied by an instruction to suspend
the use of the Prospectus until the Company and the Guarantors shall have remedied the basis for
such suspension):




          (i) when a Registration Statement and any amendment thereto has been filed with the
Commission and when the Registration Statement or any post-effective amendment thereto has
become effective;




          (ii) of any request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus or for additional information;




          (iii) of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that purpose;




          (iv) of the receipt by the Company or any Guarantor of any notification with respect to
the suspension of the qualification of the securities included therein for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and




          (v) of the happening of any event that requires any change in the Registration
Statement or the Prospectus so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.



          (d) The Company and the Guarantors shall use their reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration Statement or the
qualification of the securities therein for sale in any jurisdiction at the earliest possible time.



          (e) The Company and the Guarantors shall furnish to each Holder of Securities covered by any
Shelf Registration Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including all material incorporated therein by
reference, and, if the Holder so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).



          (f) The Company and the Guarantors shall, during the Shelf Registration Period, deliver to
each Holder of Securities covered by any Shelf Registration Statement, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder may reasonably
request. Each of the Company and the Guarantors consents to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of securities in connection with the
offering and sale of the securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement.



          (g) The Company and the Guarantors shall furnish to each Exchanging Dealer which so requests,
without charge, at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including all material incorporated by reference therein, and, if
the Exchanging Dealer so requests in writing, all exhibits thereto (including exhibits incorporated
by reference therein).



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          (h) The Company and the Guarantors shall promptly deliver to each Initial Purchaser, each
Exchanging Dealer and each other Person required to deliver a Prospectus during the Exchange Offer
Registration Period, without charge, as many copies of the Prospectus included in such Exchange
Offer Registration Statement and any amendment or supplement thereto as any such Person may
reasonably request. Each of the Company and the Guarantors consents to the use of the Prospectus
or any amendment or supplement thereto by any Initial Purchaser, any Exchanging Dealer and any such
other Person that may be required to deliver a Prospectus following the Registered Exchange Offer
in connection with the offering and sale of the New Securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Exchange Offer Registration Statement.



          (i) Prior to the Registered Exchange Offer or any other offering of Securities pursuant to any
Registration Statement, the Company and the Guarantors shall use their reasonable best efforts to
arrange, if necessary, for the qualification of the Securities or the New Securities for sale under
the laws of such jurisdictions as any Holder shall reasonably request and will maintain such
qualification in effect so long as required to enable the offer and sale in such jurisdictions of
the Securities or New Securities; provided that in no event shall the Company or the Guarantors be
obligated to qualify to do business in any jurisdiction where they are not then so qualified or to
take any action that would subject them to service of process in suits, other than those arising
out of the Initial Placement, the Registered Exchange Offer or any offering pursuant to a Shelf
Registration Statement, in any such jurisdiction where they are not then so subject.



          (j) The Company and the Guarantors shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing New Securities or
Securities to be issued or sold pursuant to any Registration Statement free of any restrictive
legends and in such denominations and registered in such names as Holders may request.



          (k) Upon the occurrence of any event contemplated by subsections (c)(ii) through (v) above
during the period for which the Company and the Guarantors are required under this Agreement to
maintain an effective Registration Statement. The Company and the Guarantors shall promptly
prepare a post-effective amendment to the applicable Registration Statement or an amendment or
supplement to the related Prospectus or file any other required document so that, as thereafter
delivered to Initial Purchasers of the Securities included therein, the Prospectus will not include
an untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
In such circumstances, the period of effectiveness of the Exchange Offer Registration Statement
provided for in Section 2 and the Shelf Registration Statement provided for in Section 3(b) shall
each be extended by the number of days from and including the date of the giving of a notice of
suspension pursuant to Section 4(c) to and including the date when the Initial Purchasers, the
Holders of the Securities and any known Exchanging Dealer shall have received such amended or
supplemented Prospectus pursuant to this Section.



          (l) Not later than the effective date of any Registration Statement, the Company and the
Guarantors shall provide a CUSIP number for the Securities or the New Securities, as the case may
be, registered under such Registration Statement and provide the Trustee with printed



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certificates
for such Securities or New Securities, in a form eligible for deposit with The Depository Trust
Company.



          (m) The Company and the Guarantors shall comply with all applicable rules and regulations of
the Commission and shall make generally available to their security holders as soon as practicable
after the effective date of the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Act.



          (n) The Company and the Guarantors shall cause the Indenture or the New Securities Indenture,
as the case may be, to be qualified under the Trust Indenture Act of 1939, as amended, as required
by applicable law, in a timely manner.



          (o) The Company and the Guarantors may require each Holder of securities to be sold pursuant
to any Shelf Registration Statement to furnish to the Company and the Guarantors such information
in writing regarding the Holder and the proposed distribution of such securities as the Company and
the Guarantors may from time to time reasonably require for inclusion in such Registration
Statement. The Company and the Guarantors may exclude from such Shelf Registration Statement the
Securities of any Holder that fails to furnish such information in writing within a reasonable time
after receiving such request.



          (p) In the case of any Shelf Registration Statement, the Company and the Guarantors shall
enter into such and take all other appropriate actions (including if requested an underwriting
agreement in customary form) in order to expedite or facilitate the registration or the disposition
of the Securities, and in connection therewith, if an underwriting agreement is entered into, cause
the same to contain indemnification provisions and procedures no less favorable than those set
forth in Section 7 (or such other provisions and procedures acceptable to the Majority Holders and
the Managing Underwriters, if any, with respect to all parties to be indemnified pursuant to
Section 7.



          (q) In the case of any Shelf Registration Statement, each of the Company and the Guarantors
shall:




          (i) make reasonably available for inspection by the Holders of Securities to be
registered thereunder, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by the Holders
or any such underwriter all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries;




          (ii) cause the Company’s officers, directors and employees to supply all relevant
information reasonably requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that any information
that is designated in writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the Holders or any such
underwriter, attorney, accountant or agent, unless such disclosure is made in connection
with a court proceeding or required by law, or such information becomes



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available to the
public generally or through a third party without an accompanying obligation of
confidentiality;




          (iii) make such representations and warranties to the Holders of Securities registered
thereunder and the underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement;




          (iv) if any of the Securities or New Securities, as the case may be, covered by any
Shelf Registration Statement are to be sold in an underwritten offering, obtain opinions of
counsel to the Company and the Guarantors and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such Holders and
underwriters;




          (v) if any of the Securities or New Securities, as the case may be, covered by any
Shelf Registration Statement are to be sold in an underwritten offering, obtain “cold
comfort” letters and updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of Securities registered thereunder and the
underwriters, if any, in customary form and covering matters of the type customarily covered
in “cold comfort” letters in connection with primary underwritten offerings; and




          (vi) deliver such documents and certificates as may be reasonably requested by the
Majority Holders and the Managing Underwriters, if any, including those to evidence
compliance with Section 4(k) and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company and the Guarantors.


The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall be performed at
(A) the effectiveness of such Registration Statement and each post-effective amendment thereto; and
(B) each closing under any underwriting or similar agreement as and to the extent required
thereunder.




          (r) In the case of any Exchange Offer Registration Statement, each of the Company and the
Guarantors shall, for any Initial Purchaser which is exchanging Securities for New Securities in
the Exchange Offer:




          (i) make reasonably available for inspection by such Initial Purchaser, and any
attorney, accountant or other agent retained by such Initial Purchaser, all relevant



12









 







financial and other records, pertinent corporate documents and properties of the Company and
its subsidiaries;




          (ii) cause the Company’s officers, directors and employees to supply all relevant
information reasonably requested by such Initial Purchaser or any such attorney, accountant
or agent in connection with any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information that is
designated in writing by the Company, in good faith, as confidential at the time of delivery
of such information shall be kept confidential by such Initial Purchaser or any such
attorney, accountant or agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes available to the public generally
or through a third party without an accompanying obligation of confidentiality;




          (iii) make such representations and warranties to such Initial Purchaser, in form,
substance and scope as are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not limited to, those set forth
in the Purchase Agreement; and




          (iv) deliver such documents and certificates as may be reasonably requested by such
Initial Purchaser or its counsel, including those to evidence compliance with Section 4(k)
and with conditions customarily contained in underwriting agreements.


The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this Section shall be
performed at the close of the Registered Exchange Offer and the effective date of any
post-effective amendment to the Exchange Offer Registration Statement.




          (s) If a Registered Exchange Offer is to be consummated, upon delivery of the Securities by
Holders to the Company and the Guarantors (or to such other Person as directed by the Company or
the Guarantors) in exchange for the New Securities, the Company and the Guarantors shall mark, or
caused to be marked, on the Securities so exchanged that such Securities are being canceled in
exchange for the New Securities. In no event shall the Securities be marked as paid or otherwise
satisfied.



          (t) The Company and the Guarantors shall use their best efforts (i) if the Securities have
been rated prior to the initial sale of such Securities, to confirm such ratings will apply to the
Securities or the New Securities, as the case may be, covered by a Registration Statement; or (ii)
if the Securities were not previously rated, to cause the Securities covered by a Registration
Statement to be rated with at least one nationally recognized statistical rating agency, if so
requested by Majority Holders with respect to the related Registration Statement or by any Managing
Underwriters.



          (u) In the event that any Broker-Dealer shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or “assist in the distribution” (within the
meaning of the Rules of Fair Practice and the By-Laws of the National Association of Securities
Dealers, Inc.) thereof, whether as a Holder of such Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise,



13









 







assist such Broker-Dealer in
complying with the requirements of such Rules and By-Laws, including, without limitation, by:




          (i) if such Rules or By-Laws shall so require, engaging a “qualified independent
underwriter” (as defined in such Rules) to participate in the preparation of the
Registration Statement, to exercise usual standards of due diligence with respect thereto
and, if any portion of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to recommend the yield
of such Securities;




          (ii) indemnifying any such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 7 hereof; and




          (iii) providing such information to such Broker-Dealer as may be required in order for
such Broker-Dealer to comply with the requirements of such Rules.




          (iv) The Company and the Guarantors shall use their best efforts to take all other
steps necessary to effect the registration of the Securities or the New Securities, as the
case may be, covered by a Registration Statement.



          (v) The Company and the Guarantors represent, warrant and covenant that neither the Company
nor any Guarantor (including their respective agents and representatives) will prepare, make, use,
authorize, approve or refer to any Free Writing Prospectus.



          5. Liquidated Damages. In the event that (i) the Exchange Offer Registration
Statement has not been declared effective under the Act within 365 days of the date hereof (or if
such 365th day is not a Business Day, the next succeeding Business Day), (ii) the
Registered Exchange Offer is not consummated within 410 days of the date hereof (or if such
410th day is not a Business Day, the next succeeding Business Day), or (iii) a Shelf
Registration Statement is required to be filed but has not been declared effective under the Act
within 410 days of the date hereof (or if such 410th day is not a Business Day, the next
succeeding Business Day), the interest rate borne by the Securities shall be increased by
one-quarter or one percent per annum for the first 90 days following such period. Such interest
rate will increase by an additional one-quarter of one percent per annum thereafter up to a maximum
aggregate increase of of one percent per annum. Upon (a) the effectiveness of the Exchange Offer
Registration Statement, (b) the consummation of the Registered Exchange Offer or (c) the
effectiveness of the Shelf Registration Statement, the interest rate borne by the Securities will
be reduced to the original interest rate.



          6. Registration Expenses. The Company and the Guarantors shall bear all expenses
incurred in connection with the performance of their obligations under Sections 2, 3 and 4 hereof
and, in the event of any Shelf Registration Statement, will reimburse the Holders for the
reasonable fees and disbursements of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith, and, in the case of any Exchange Offer
Registration Statement, will reimburse the Initial Purchasers for the reasonable fees and
disbursements of counsel acting in connection therewith.



14









 





          7. Indemnification and Contribution. (a) Each of the Company and the Guarantors
agrees, jointly and severally, to indemnify and hold harmless each Holder of Securities or New
Securities, as the case may be, covered by any Registration Statement (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), the directors, officers, employees and agents of each such Holder and each
Person who controls any such Holder 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 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 as originally filed or
in any amendment thereof, or in any preliminary Prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or in any Free Writing Prospectus used in violation of this
Agreement, 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 not
misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the Company and
the Guarantors will not be liable in any 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 and the Guarantors by or on behalf of any such Holder
specifically for inclusion therein. This indemnity agreement will be in addition to any liability
which the Company and the Guarantors may otherwise have.



          Each of the Company and the Guarantors also agrees to indemnify or contribute as provided in
Section 7(d) to Losses of each any underwriter of Securities or New Securities, as the case may be,
registered under a Shelf Registration Statement, their directors, officers, employees or agents and
each Person who controls such underwriter on substantially the same basis as that of the
indemnification of the Initial Purchasers and the selling Holders provided in this Section 7(a) and
shall, if requested by any Holder, enter into an underwriting agreement reflecting such agreement,
as provided in Section 4(p) hereof.



          (b) Each Holder of securities covered by a Registration Statement (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer) severally agrees to indemnify and hold harmless each of the Company and the
Guarantors, each of its directors, each of its officers who signs such Registration Statement and
each Person who controls the Company or any Guarantor within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from each of the Company and the
Guarantors to each such Holder, but only with reference to written information relating to such
Holder furnished to the Company and the Guarantors by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.



          (c) Promptly after receipt by an indemnified party under this Section 7 or notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is



15









 








to be
made against the indemnifying party under this Section, 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 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, then each
applicable indemnifying party shall have a joint and several obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively “Losses”) to which such
indemnified party may be subject in such proportion as is appropriate to reflect the relative
benefits received by such indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Initial Placement and the Registration Statement which resulted in such
Losses; provided, however, that in no case shall any Initial Purchaser or any
subsequent Holder of any Security or New Security be responsible, in the aggregate, for any amount
in excess of the purchase discount or commission applicable to such Security, or in the case of a
New Security, applicable to the Security that was exchangeable into such New Security, as set forth
on the cover page of the Offering Memorandum, nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to the securities purchased
by such underwriter under the Registration Statement which resulted in such Losses. If the
allocation provided by the immediately preceding sentence is unavailable for any reason,



16









 







the
indemnifying party and the indemnified party shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of such indemnifying party,
on the one hand, and such indemnified party, on the other hand, in connection with the statements
or omissions which resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by each of the Company and the Guarantors shall be deemed to be equal to the sum
of (x) the total net proceeds from the Initial Placement (before deducting expenses) and (y) the
total amount of additional interest which the Company and the Guarantors were not required to pay
as a result of registering the securities covered by the Registration Statement which resulted in
such Losses. Benefits received by the Initial Purchasers shall be deemed to be equal to the total
purchase discounts and commissions from the Initial Placement, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Securities or New Securities, as
applicable, registered under the Act. Benefits received by any underwriter shall be deemed to be
equal to the total underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such Losses. Relative
fault shall be determined by reference to, among other things, whether any alleged untrue statement
or omission relates to information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue statement or omission. The
parties agree that it would not be just and equitable if contribution were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) 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, each Person who controls a Holder within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each Person who controls the Company or any Guarantor
within the meaning of either the Act or the Exchange Act, each officer of the Company or any
Guarantor who shall have signed the Registration Statement and each director of the Company or any
Guarantor shall have the same rights to contribution as the Company and the Guarantors, subject in
each case to the applicable terms and conditions of this paragraph (d).



          (e) The provisions of this Section will remain in full force and effect, regardless of any
investigation made by or on behalf of any Holder or the Company or any Guarantor or any of the
officers, directors or controlling Persons referred to in this Section hereof, and will survive the
sale by a Holder of securities covered by a Registration Statement.



          8. Underwritten Registrations. (a) If any of the Securities or New Securities, as
the case may be, covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the Managing Underwriters shall be selected by the Majority Holders.



          (b) No Person may participate in any underwritten offering pursuant to any Shelf Registration
Statement, unless such Person (i) agrees to sell such Person’s Securities or New Securities, as the
case may be, on the basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting



17









 







agreements and other documents
reasonably required under the terms of such underwriting arrangements.



          9. No Inconsistent Agreements. The Company and the Guarantors have not, as of the
date hereof, entered into, nor shall they, on or after the date hereof, enter into, any agreement
with respect to their securities that is inconsistent with the rights granted to the Holders herein
or otherwise conflicts with the provisions hereof.



          10. Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, qualified, modified or supplemented, and waivers
or consents to departures from the provisions hereof may not be given, unless the Company and the
Guarantors have obtained the written consent of the Majority Holders (or, after the consummation of
any Registered Exchange Offer in accordance with Section 2 hereof, of New Securities); provided
that, with respect to any matter that directly or indirectly affects the rights of any Initial
Purchaser hereunder, the Company and the Guarantors shall obtain the written consent of each such
Initial Purchaser against which such amendment, qualification, supplement, waiver or consent is to
be effective. Notwithstanding the foregoing (except the foregoing proviso), a waiver or consent to
departure from the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or New Securities, as the case may be, are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect the rights of other
Holders may be given by the Majority Holders, determined on the basis of Securities or New
Securities, as the case may be, being sold rather than registered under such Registration
Statement.



          11. Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, registered first-class mail, telex, telecopier or air
courier guaranteeing overnight delivery:



          (a) if to a Holder, at the most current address given by such Holder to the Company in
accordance with the provisions of this Section, which address initially is, with respect to each
Holder, the address of such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to Banc of America Securities LLC;



          (b) if to you, initially at the respective addresses set forth in the Purchase Agreement; and



          (c) if to the Company or any Guarantor, initially at its address set forth in the Purchase
Agreement.



          All such notices and communications shall be deemed to have been duly given when received.



          The Initial Purchasers or the Company and the Guarantors by notice to the other parties may
designate additional or different addresses for subsequent notices or communications.



          12. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including, without the need for



18









 







an
express assignment or any consent by the Company and the Guarantors thereto, subsequent Holders of
Securities and the New Securities. Each of the Company and the Guarantors hereby agrees to extend
the benefits of this Agreement to any Holder of Securities and the New Securities, and any such
Holder may specifically enforce the provisions of this Agreement as if an original party hereto.



          13. Counterparts. This agreement may be in signed counterparts, each of which shall
be deemed to be an original and all of which taken together shall constitute one and the same
agreement.



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



          15. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed in the
State of New York.



          16. Severability. In the event that any one of more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable
in any respect for any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained herein shall not be in any way
impaired or affected thereby, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.



          17. Securities Held by the Company, etc.. Whenever the consent or approval of Holders
of a specified percentage of principal amount of Securities or New Securities is required
hereunder, Securities or New Securities, as applicable, held by the Company, or its Affiliates
(other than subsequent Holders of Securities or New Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or New Securities)
shall not be counted in determining whether such consent or approval was given by the Holders of
such required percentage.



19









 





EXECUTION VERSION




          If the foregoing is in accordance with your understanding of our agreement, kindly sign
and return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.



	 	 	 	 	 
	 	Very truly yours,

Arch Coal, Inc.

 	 
	 	By:  	/s/ John T. Drexler
 	 
	 	 	Name:  	John T. Drexler 	 
	 	 	Title:  	Senior Vice President and

Chief Financial Officer 	 
	 



Signature Page to Arch Coal, Inc. Registration Rights Agreement









 









 











Arch Reclamation Services, Inc.

Ark Land Company

Western Energy Resources, Inc.

Ark Land LT, Inc.

Ark Land WR, Inc.

Ark Land KH, Inc.

Allegheny Land Company

Arch Coal Sales Company, Inc.

Arch Energy Resources, LLC

Arch Coal Terminal, Inc.

Ashland Terminal, Inc.

Cumberland River Coal Company

Lone Mountain Processing, Inc.

Coal-Mac, Inc.

Mingo Logan Coal Company

Mountain Gem Land, Inc.

Mountain Mining, Inc.

Mountaineer Land Company

Prairie Holdings, Inc.




	 	 	 	 	 
	 	 	 
	 	By:  	                                                  /s/ John T. Drexler
 	 
	 	 	Name:  	John T. Drexler 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Arch Coal, Inc. Registration Rights Agreement





 









 






EXECUTION VERSION




The foregoing Agreement is hereby confirmed and

accepted as of the date first above written.




Banc of America Securities LLC

Citigroup Global Markets Inc.

Morgan Stanley & Co. Incorporated

J.P. Morgan Securities Inc.

   Acting on behalf of itself

   and as the Representatives of

   the several Initial Purchasers named

   in Schedule A to the Purchase Agreement




By: Banc of America Securities LLC




	 	 	 	 	 
	 

	 	 	 	 
	By:

	 	/s/ Lex Maultsby	 	 
	 

	 	 	 	 
	 

	 	Managing Director	 	 







Signature Page to Arch Coal, Inc. Registration Rights Agreement



 









 






EXECUTION VERSION




ANNEX A




          Each Broker-Dealer that receives New Securities for its own account pursuant to the Registered
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such New Securities. The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a Broker-Dealer will not be deemed to admit that it is an “underwriter: within the
meaning of the Securities Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired by such Broker-Dealer as a result of
market-making activities or other trading activities. The Company and the Guarantors have agreed
that, starting on the Expiration Date (as defined herein) and ending on the close of business one
year after the Expiration Date, they will make this Prospectus available to any Broker-Dealer for
use in connection with any such resale. See “Plan of Distribution”.



 









 





EXECUTION VERSION




ANNEX B




          Each Broker-Dealer that receives New Securities for its own account in exchange for
Securities, where such Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such New Securities. See “Plan of Distribution”.



 









 





EXECUTION VERSION




ANNEX C




PLAN OF DISTRIBUTION




          Each Broker-Dealer that receives New Securities for its own account pursuant to the Registered
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such New Securities. This Prospectus, as it may be amended or supplemented from time to time, may
be used by a Broker-Dealer in connection with resales of New Securities received in exchange for
Securities where such Securities were acquired as a result of market-making activities or other
trading activities. The Company and the Guarantors have agreed that, starting on the Expiration
Date and ending on the close of business 180 days after the Expiration Date, they will make this
Prospectus, as amended or supplemented, available to any Broker-Dealer for use in connection with
any such resale. In addition, until
                    , 20                     , dealers effecting transactions in the New
Securities may be required to deliver a prospectus.



          The Company and the Guarantors will not receive any proceeds from any sale of New Securities
by brokers-dealers. New Securities received by Broker-Dealers for their own account pursuant to
the Registered Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of options on the New
Securities or a combination of such methods of resale, at market prices prevailing at the time of
resale, at prices related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may receive compensation
in the form of commissions or concessions from any such Broker-Dealer and/or the purchasers of any
such New Securities. Any Broker-Dealer that resales New Securities that were received by it for
its own account pursuant to the Registered Exchange Offer and any broker or dealer that
participates in a distribution of such New Securities may be deemed to be an “underwriter” within
the meaning of the Securities Act and any profit of any such resale of New Securities and any
commissions or concessions received by any such Persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that by acknowledging that
it will deliver and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that it
is an “underwriter” within the meaning of the Securities Act.



          For a period of 180 days after the Expiration Date, the Company and the Guarantors will
promptly send additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any Broker-Dealer that requests such documents in the Letter of Transmittal. The
Company and the Guarantors have agreed to pay all expenses incident to the Registered Exchange
Offer (including the expenses of one counsel for the holder of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the holders of the
Securities (including any Broker-Dealers) against certain liabilities, including liabilities under
the Securities Act.



 









 





EXECUTION VERSION




ANNEX D




Rider A





CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.



	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Address:
	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 

	 	 	 	 	 	 





Rider B



If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the New
Securities in the ordinary course of its business, it is not engaged in, and does not intend to
engage in, a distribution of New Securities and it has not arrangements or understandings with any
Person to participate in a distribution of the New Securities. If the undersigned is a
Broker-Dealer that will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchange for New Securities were acquired by it as a result of
market-making activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such New Securities; however, by so acknowledging and
by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act.