THE XXXXXXX WORKS
(a Connecticut corporation)
TERMS AGREEMENT
5.75 % Notes due March 1, 2004
February 24, 1999
Xxxxxxx, Sachs & Co.
Xxxxxxx Xxxxx Xxxxxx
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Xxxxxxx Works, a Connecticut corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated as of December 1, 1992, to issue and sell to you
(the "Underwriters") the Securities specified herein.
Each of the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth therein
shall be deemed to have been made at and as of the date of this Terms
Agreement, except that each representation and warranty that refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus and as of the date of this Terms Agreement in
relation to the Prospectus as amended or supplemented relating to the
Securities which are the subject of this Terms Agreement.
Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as defined therein, except that the term
"Registration Statement" shall include the registration statement (No.
33-46212) referred to in the Underwriting Agreement (the "Initial Registration
Statement"), including any and all
amendments and post-effective amendments thereto, and the registration
statement (No. 333-72861) increasing the size of the offering (the "Rule 462(b)
Registration Statement"), filed or to be filed pursuant to Rule 462(b) under
the Act, in each case, including all exhibits thereto and the documents
incorporated by reference therein (excluding the Form T-1), as of the time the
Initial Registration Statement became effective or the Rule 462(b) Registration
Statement became or hereafter becomes effective.
A supplement to the Prospectus relating to the Securities which are
the subject of this Terms Agreement, in the form heretofore delivered to you,
is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and jointly, to purchase from the Company, at the time and
place and at the purchase price to the Underwriters set forth herein, the
principal amount of the Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
1. Terms of the Securities. Pursuant to Section 3 of the Underwriting
Agreement, the terms of the Securities shall be as set forth in Schedule II
hereto.
2. Representations and Warranties of the Company. Section 2 of the
Underwriting Agreement is hereby amended to add the following additional repre-
sentations and warranties:
a. Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
date as of which information is given in the Prospectus, there has not
been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
2
b. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Connecticut, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus;
c. The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
d. Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound;
e. Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company is a
party which if determined adversely would have a material adverse
effect on the Company;
f. The Company owns or possesses, or can acquire on
reasonable terms, all licenses, inventions, copyrights, know-how,
trademarks, service marks and trade names, patents and patent rights
necessary to carry on its business as described in the Prospectus,
and, except as set forth in the Pro spectus, the Company has not
received any correspondence relating to any of the foregoing or notice
of infringement of or conflict with asserted rights of others with
respect to any of the foregoing which the Company believes would,
singly or in the aggregate, have a material adverse effect on the
Company;
g. The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of
its subsidiaries has a material relationship to evaluate the extent to
which the business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 problem. As a result of
such review, the Company has developed a comprehensive Year 2000
project. While due to the inherent uncertainty in Year 2000 analysis
the Company is unable to determine conclusively whether the
consequences of potential Year 2000 failures by
3
either the Company or its customers and key suppliers will have a
material impact on the Company's results of operations, liquidity and
financial condition, the Company expects that its Year 2000 project
will significantly reduce both the level of uncertainty regarding the
potential impact as well as reduce the risk of interruptions to
routine business operations. As of the date hereof, the Company's Year
2000 project is proceeding on schedule and the Com pany anticipates
that its Year 2000 project will be completed in the fourth quarter of
1999.
3. Conditions of the Obligations of the Underwriters. Section 5 of the
Underwriting Agreement is hereby amended by deleting the words "and
statistical" in the last sentence of the last paragraph of subsection 5(d).
4. Indemnification. Section 6 of the Underwriting Agreement is hereby
amended by deleting clause (ii) of subsection 6(a) in its entirety and ending
the paragraph after the word "therein."
5. Governing Law. This Agreement shall be governed by the laws of the
State of New York.
4
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon acceptance hereof by you,
this letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Company.
Very truly yours,
The Xxxxxxx Works
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
Vice President, Secretary
and General Counsel
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
By: /s/ Xxxxxxx, Sachs & Co.
-----------------------------
(Xxxxxxx, Xxxxx & Co.)
5
SCHEDULE I
PRINCIPAL AMOUNT OF
UNDERWRITER SECURITIES TO BE PURCHASED
----------- --------------------------
Xxxxxxx, Sachs & Co. $ 72,000,000
Xxxxxxx Xxxxx Xxxxxx Inc. 48,000,000
-------------
Total $ 120,000,000
=============
6
SCHEDULE II
TITLE OF SECURITIES:
5.75% Notes due March 1, 0000
XXXXXXXXX XXXXXXXXX XXXXXX:
$ 120,000,000
PRICE TO PUBLIC:
99.961% of the principal amount, plus accrued interest, if any, from
March 1, 1999 to Xxxxx 0, 0000
XXXXXXXX PRICE BY UNDERWRITERS:
99.361% of the principal amount, plus accrued interest, if any, from
March 1, 1999 to March 1, 1999
FORM OF SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company (the "Depositary") or its
designated custodian
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
CLOSING DATE AND TIME:
10:00 a.m. (New York City time), March 1, 1999
7
INDENTURE:
Indenture dated as of April 1, 1986, between the Company and State
Street Bank and Trust Company, as successor trustee, as amended by the
First Supplemental Indenture, dated as of June 15, 1992.
MATURITY:
March 1, 2004
INTEREST RATE:
5.75%
INTEREST PAYMENT DATES:
March 1 and September 1, commencing September 1, 1999
REDEMPTION PROVISIONS:
None
SINKING FUND PROVISIONS:
None
DELAYED DELIVERY CONTRACTS:
Not authorized
CLOSING PLACE:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PLACE OF DELIVERY OF SECURITIES:
8
The Securities will be delivered through the book-entry facilities of
the Depositary and will be made available for checking by the
Underwriters, the Depositary and the Trustee at least 24 hours prior
to the Closing Date
NOTICES TO THE UNDERWRITERS PURSUANT TO SECTION 9 OF THE UNDERWRITING AGREE-
MENT:
Notices shall be given to Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Fil Rensky
9
