1
EXHIBIT 1.2
THE XXXXXX GROUP, INC.
(a Maryland corporation)
$100,000,000
8.00% Senior Notes due 2006
TERMS AGREEMENT
---------------
August 13, 2001
To: The Xxxxxx Group, Inc.
00000 Xxxx Xxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
Reference is made to The Xxxxxx Group, Inc. Debt Securities Underwriting
Agreement Basic Provisions, dated July 2, 1996 (the "Underwriting Agreement").
This Agreement is the Terms Agreement referred to in the Underwriting Agreement.
We offer to purchase, on and subject to the terms and conditions of the
Underwriting Agreement, the following securities ("Securities") on the following
terms:
Title: 8.00% Senior Notes due 2006
Principal Amount
to be Issued: $100,000,000
Date of Maturity: August 15, 2006
Interest Payment: August 15 and February 15 of each year, commencing February 15,
2002
Public Offering
Price: 100.00%
Purchase Price: 99.03% (payable in immediately available funds)
Underwriting
Commission: 0.97%
Redemption Provisions: None
Delayed Delivery
Contracts: None
2
2
Closing Date and
Location: August 16, 2001, 10:00 A.M.;
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Additional
Co-Managers,
if any: Banc of America Securities LLC, as Joint Book-Running Manager
Additional
Underwriters,
if any: None
Other Terms:
All provisions contained in the Underwriting Agreement, a copy of which
is attached hereto, are herein incorporated by reference in their 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, except that:
(a) Section 4 of the Underwriting Agreement shall be amended as
follows:
The phrase "Xxxxxx, Read & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000," shall be stricken and replaced with "Credit
Suisse First Boston Corporation, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000".
(b) Section 6(a) of the Underwriting Agreement shall be amended as
follows:
The phrase "and each of their directors, officers, employees and
agents" shall be inserted after the word "Underwriter" in the
second line.
The words "that Underwriter" in the third line shall be stricken
and replaced with the word "they".
(c) The following paragraph shall be added to the end of Section 6(c)
of the Underwriting Agreement:
"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."
3
3
(d) Clause (vii) of Section 8 of the Underwriting Agreement shall be
amended to read in its entirety as follows:
"(vii) a downgrading shall have occurred in the rating accorded
the Company's debt securities by any "nationally recognized
statistical rating organization", as that terms is defined by the
Commission for purposes of Rule 436(g)(2) or such organization
shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of
the Company's debt securities,"
(e) Section 9(d) of the Underwriting Agreement shall be amended as
follows:
The phrase "Xxxx Xxxxxx, Esq., Executive Vice President and
General Counsel of the Company" shall be stricken and replaced
with the phrase "Xxxxxxx X. Xxxxxx, Senior Vice President and
General Counsel of the Company".
(f) Section 9(e) of the Underwriting Agreement shall be amended as
follows:
The phrase "Piper & Marbury" shall be stricken and replaced with
the phrase "Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP".
(g) Clause (iv) of Section 9(f) of the Underwriting Agreement shall be
amended to read in its entirety as follows:
"(iv) since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse
change in the financial condition, prospects, earnings, business,
properties or results of operations 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 Prospectus or any material change
in the Capital Stock or long-term debt of the Company and its
subsidiaries taken as a whole."
The Company represents and warrants to us that the representations and
warranties of the Company set forth in Section 1 of the Underwriting Agreement
are accurate as though expressly made at and as of the date hereof. Except as
otherwise provided above, all of the provisions contained in the Underwriting
Agreement, a copy of which is attached hereto as Annex A, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
The term "registration statement" appearing in Section 1(a) of the Underwriting
Agreement shall be deemed to refer to the Registration Statement (333-58208)
filed with the Commission on April 3, 2001.
As contemplated by Section 2 of the Underwriting Agreement, attached as
Schedule A hereto is a completed list of our underwriting commitment, which
shall be a part of this Agreement and the Underwriting Agreement.
4
4
This Agreement shall be governed by the laws of the State of New York.
If the foregoing is in accordance with your understanding of the
agreement between the Underwriter and you, please sign and return to the
Underwriter a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a binding
agreement between the Underwriter and you in accordance with its terms and the
terms of the Underwriting Agreement.
Very truly yours,
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ J. Xxxxxx Xxxxx
------------------------------------
Name: J. Xxxxxx Xxxxx
Title: Managing Director
Confirmed and accepted as of
the date first above written:
THE XXXXXX GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
5
SCHEDULE A
Principal Amount
of Securities
Underwriter to be Purchased
----------- ---------------
Credit Suisse First Boston Corporation $50,000,000
Banc of America Securities LLC 50,000,000
----------
Total $100,000,000
