XXXXXX XXXXXXXXXXX
("Company")
Debt Securities
TERMS AGREEMENT
September 9, 2005
Xxxxxx Xxxxxxxxxxx
Xxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: Vice President and Treasurer
Dear Sirs:
On behalf of the several Underwriters named in Schedule A hereto and for
their respective accounts, we offer to purchase, on and subject to the terms
and conditions of the Underwriting Agreement Basic Provisions filed as an
exhibit to the Company's registration statement on Form S-3 (No. 333-85650)
(the "Underwriting Agreement"), the following securities ("Securities") to be
issued under an indenture, dated as of March 1, 2003, between the
Company and HSBC Bank USA, National Association as Trustee (successor to HSBC
Bank USA), on the following terms:
Title: 8% Senior Notes due 2012 (the "2012 Notes") and 8 1/2% Senior
Notes due 2015 (the "2015 Notes" and, together with the 2012 Notes, the "Notes")
Principal Amount: $400,000,000 of the 2012 Notes and $150,000,000 of
the 2015 Notes
Interest: 8% per annum on the 2012 Notes and 8 1/2% per annum on the
2015 Notes, in each case, payable semiannually on April 15 and October 15,
commencing April 15, 2006, to holders of record on the preceding April 1 or
October 1, as the case may be.
Maturity: 2012 Notes mature on October 15, 2012 and 2015 Notes mature
on October 15, 2015
Optional Redemption: The 2012 Notes may be redeemed at the Company's
option, at any time, in whole or in part, at a redemption price equal to the
greater of (i) 100% of the principal amount of Notes to be redeemed or (ii) the
sum of the present values of the remaining scheduled payments of principal and
interest on the Notes to be redeemed (exclusive of interest accrued to the date
of redemption) discounted to the redemption date at the then current Treasury
Rate plus 50 basis points, plus any accrued and unpaid interest to the date of
redemption. From the date of issuance up to October 14, 2010, the 2015 Notes
may be redeemed at the Company's option, in whole or in part, at a redemption
price equal to the greater of (i) 100% of the principal amount of notes to be
redeemed or (ii) the sum of the present values of the principal, premium and
interest (exclusive of interest accrued to the date of redemption) that would
be payable on such Notes through October 15, 2010, as set forth in the next
sentence, discounted to the redemption date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the then current Treasury
Rate plus 50 basis points, plus any accrued and unpaid interest to the date of
redemption. Beginning on October 15, 2010, the Company may redeem all or a
part of the 2015 Notes at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest, if any, to
the applicable redemption date, if redeemed during the twelve month period
commencing on October 15 of the years indicated below:
Year Percentage
---- ----------
2010 ................................................104.250%
2011 ................................................102.833%
2012 ................................................101.417%
2013 and thereafter ............. ..................100.000%
The term "Treasury Rate" shall have the meaning ascribed to it in the
Company's Prospectus Supplement dated September 9, 2005 pursuant to which the
2012 Notes and the 2015 Notes were offered.
Sinking Fund: None
Delayed Delivery Contracts: None
Purchase Price: With respect to each series of Notes, 98.56% of
principal amount, plus accrued interest, if any, from September 14, 2005
Expected Reoffering Price: With respect to each series of Notes, 100% of
principal amount plus accrued interest, if any, from September 14, 2005,
subject to change by the undersigned
Closing Date: 10 a.m. on September 14, 2005, at the offices of Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Settlement: Federal (same-day) funds.
Names and Addresses of Representatives:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
The respective principal amounts of the Notes to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
It is understood that we may, with your consent, amend this offer
to add additional Underwriters and reduce the aggregate principal amount to be
purchased by the Underwriters listed in Schedule A hereto by the aggregate
principal amount to be purchased by such additional Underwriters.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The Notes will be made available for checking and packaging at the
office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP at least 24 hours prior to the Closing
Date.
Please signify your acceptance of our offer by signing the enclosed response in
the space provided and returning it to us.
Very truly yours,
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
On behalf of themselves and as Representatives of
the Several Underwriters
By: BANC OF AMERICA SECURITIES LLC
By:____________________________
Name:
Title:
By: CITIGROUP GLOBAL MARKETS INC.
By:____________________________
Name:
Title:
SCHEDULE A
Underwriter 2012 Notes 2015 Notes
----------- ---------- ----------
Banc of America Securities LLC $118,750,000 $44,531,000
Citigroup Global Markets Inc. 118,750,000 44,531,000
ABN AMRO Incorporated 25,000,000 9,375,000
BNP Paribas Securities Corp. 25,000,000 9,375,000
Deutsche Bank Securities Inc. 25,000,000 9,375,000
Scotia Capital (USA) Inc. 25,000,000 9,375,000
Wachovia Capital Markets, LLC 25,000,000 9,375,000
BNY Capital Markets, Inc. 8,333,000 3,125,000
HSBC Securities (USA) Inc. 8,333,000 3,125,000
McDonald Investments Inc. 8,333,000 3,125,000
PNC Capital Markets, Inc. 8,333,000 3,125,000
The Xxxxxxxx Capital Group, L.P. 4,168,000 1,563,000
----------- ------------
$400,000,000 $150,000,000
To: Banc of America Securities LLC and
Citigroup Global Markets Inc.
as Representatives of the Several Underwriters
We accept the offer contained in your letter, dated September 9,
2005, relating to $400,000,000 principal amount of our 8% Senior Notes due 2012
and $150,000,000 principal amount of our 8 1/2% Senior Notes due 2015. We also
confirm that, to the best of our knowledge after reasonable investigation, the
representations and warranties of the undersigned in the Underwriting Agreement
filed as an exhibit to the undersigned's registration statement on Form S-3
(No. 333-85650) (the "Underwriting Agreement") are true and correct, no stop
order suspending the effectiveness of the Registration Statement (as defined in
the Underwriting Agreement) or of any part thereof has been issued and no
proceedings for that purpose have been instituted or, to the knowledge of the
undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been (or
in the case of a form of prospectus filed pursuant to Rule 424(b)(1) or (4)
there will be, as of the date of such prospectus) no material adverse change in
the financial position or results of operations of the undersigned and its
subsidiaries except as set forth in or contemplated by the Prospectus.
[SIGNATURE BLOCK FOLLOWS ON NEXT PAGE]
To: Banc of America Securities LLC and
Citigroup Global Markets Inc.
as Representatives of the Several Underwriters
Very truly yours,
XXXXXX XXXXXXXXXXX
By: __________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President & Treasurer
