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Exhibit 1-B-1
XXXX CORPORATION
(a Virginia corporation)
----------------
$150,000,000 6.50% Notes due 2008
$200,000,000 7.00% Notes due 2028
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TERMS AGREEMENT
March 11, 1998
XXXX CORPORATION
0000 Xxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Chief Financial Officer
Ladies and Gentlemen:
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 in the form attached
as Schedule B hereto (the "UNDERWRITING AGREEMENT"), the following securities
("SECURITIES") on the following terms:
1. NOTES DUE 2008
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TITLE: 6.50% Notes Due March 15, 2008
PRINCIPAL AMOUNT: $150,000,000
INTEREST: 6.50% per annum, from March 16, 1998, payable semiannually
on September 15 and March 15, commencing September 15, 1998, to
holders of record on the preceding September 1 or March 1, as the
case may be.
MATURITY: March 15, 2008
OPTIONAL REDEMPTION: Yes (as described under "Optional Redemption"
in draft Prospectus Supplements pages attached hereto as Schedule C)
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SINKING FUND: None
PURCHASE PRICE: 98.886% of principal amount, settled flat, plus
accrued interest, if any, from March 16, 1998.
EXPECTED REOFFERING PRICE: 99.536% of principal amount, subject to
change by the undersigned.
2. NOTES DUE 2028
--------------
TITLE: 7.00% Notes Due March 15, 2028
PRINCIPAL AMOUNT: $200,000,000
INTEREST: 7.00% per annum, from March 16, 1998, payable semiannually
on September 15 and March 15, commencing September 15, 1998, to
holders of record on the preceding September 1 or March 1, as the
case may be.
MATURITY: March 15, 2028
OPTIONAL REDEMPTION: Yes (as described under "Optional Redemption"
in draft Prospectus Supplements pages attached hereto as Schedule C)
SINKING FUND: None
PURCHASE PRICE: 98.468% of principal amount, settled flat, plus
accrued interest, if any, from March 16, 1998.
EXPECTED REOFFERING PRICE: 99.343% of principal amount, subject to
change by the undersigned.
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COUNSEL FOR THE UNDERWRITERS: Wachtell, Lipton, Xxxxx & Xxxx
CLOSING: 10:30 a.m. on March 16, 1998, at the offices of
Wachtell, Lipton, Xxxxx & Xxxx, New York, New York, with payment to be made by
wire transfer of immediately available funds.
GLOBAL SECURITY: The Securities will be issued in the form of
global securities to be deposited with a depository designated by the
Representatives.
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NAMES AND ADDRESSES OF REPRESENTATIVES:
XXXXXX BROTHERS INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
World Financial Center
Xxxxx Xxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
X.X. XXXXXX SECURITIES, INC.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
The respective principal amounts of the Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us not later
than 5:00 p.m. today.
Very truly yours,
XXXXXX BROTHERS INC.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED,
X.X. XXXXXX SECURITIES INC.,
By XXXXXX BROTHERS INC., on behalf of
themselves and as Representatives of the
several Underwriters,
/s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
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Schedule A to Terms Agreement
PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF
UNDERWRITER NOTES DUE 2008 NOTES DUE 2028
------------------------------- -------------------- --------------------
XXXXXX BROTHERS INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 10285....................................... $ 50,000,000. $ 67,000,000.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
World Financial Center
Xxxxx Xxxxx - 0xx Xxxxx
Xxx Xxxx, XX 10281....................................... 50,000,000. 66,500,000.
X.X. XXXXXX SECURITIES, INC.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 10260....................................... 50,000,000. 66,500,000.
TOTAL................................... $ 150,000,000. $ 200,000,000.
============== ==============
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Schedule B to Terms Agreement
XXXX CORPORATION
(a Virginia corporation)
----------------
UNDERWRITING AGREEMENT
1. INTRODUCTION. Xxxx Corporation, a Virginia corporation
("COMPANY"), proposes to issue and sell from time to time certain of its debt
securities registered under the registration statement referred to in Section
2(b) ("REGISTERED SECURITIES"). The Registered Securities will be issued under
the Indenture dated as of December 15, 1997 between the Company and Citibank,
N.A. as trustee (as it may be amended or supplemented from time to time to
provide for the issuance of series of the Registered Securities, the
"INDENTURE"), in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and other terms, with such
terms for any particular series of the Registered Securities being determined at
the time of sale. Particular series of the Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3 or such other form as may
be agreed to between the Company and such underwriters as may be engaged at such
time by the Company in connection with such particular issuance of Registered
Securities for resale in accordance with terms of such particular offering
determined at the time of sale.
The Registered Securities involved in the offering under the
Terms Agreement dated as of March 11, 1998 are hereinafter referred to as the
"SECURITIES". The firm or firms which agree to purchase the Securities are
hereinafter referred to as the "UNDERWRITERS" and the representative or
representatives of the Underwriters, if any, specified in a Terms Agreement
referred to in Section 3 are hereinafter referred to as the "REPRESENTATIVES";
provided, however, that if the Terms Agreement does not specify any
representative of the Underwriters, the term "REPRESENTATIVES", as used in this
Agreement, shall mean the Underwriters.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with each Underwriter that:
(a) The Company is duly incorporated, validly existing and in
good standing under the laws of the Commonwealth of Virginia, with full
corporate power and authority to issue and sell the Securities as
contemplated herein and own its properties and conduct its business as
described in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which it owns or leases substantial properties or in
which the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the Company.
(b) A registration statement (No. 333-42239), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange
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Commission ("COMMISSION") and has become effective. Such registration
statement, as amended at the time of any Terms Agreement referred to in
Section 3, is hereinafter referred to as the "REGISTRATION STATEMENT",
and the prospectus included in such Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of the
Securities and the terms of offering thereof, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) under the
Securities Act of 1933, as amended ("ACT"), including all material
incorporated by reference therein is hereinafter referred to as the
"PROSPECTUS."
(c) On the effective date, the Registration Statement
conformed in all material respects to the requirements of the Act, the
Trust Indenture Act of 1939, as amended ("TRUST INDENTURE ACT"), and
the rules and regulations of the Commission ("RULES AND REGULATIONS")
and did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; and on the date of each
Terms Agreement referred to in Section 3, the Registration Statement
and the Prospectus will conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, except that the foregoing does not apply to (i)
statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter through
the Representatives, if any, specifically for use therein or (ii) that
part of the Registration Statement that constitutes the Statement or
Eligibility and Qualification (Form T-1) under the Trust Indenture Act.
(d) Except for statements in such documents which do not
constitute part of the Registration Statement or the Prospectus
pursuant to Rule 412 of Regulation C under the Act and after
substituting therefor any statements modifying or superseding such
excluded statements (i) the documents incorporated by reference in the
Registration Statement and the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), as applicable,
and the Rules and Regulations thereunder, and none of such documents,
when they became effective or were so filed, as the case may be,
contained, in the case of documents which became effective under the
Act, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and, in the case of documents which
were filed under the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (ii) any
further documents so filed and incorporated by reference when they
become effective or are filed with the Commission, as the case may
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be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the Rules and Regulations
thereunder and will not contain, in the case of documents which become
effective under the Act, 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, and, in the case of
documents which are filed under the Exchange Act with the Commission,
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(e) As of the date hereof, and at the Closing Date (as defined
in Section 3 hereof), the Indenture will be duly qualified under, and
will comply with the requirements of, the Trust Indenture Act.
(f) Upon payment therefor as provided herein, the Securities
will have been duly and validly authorized and (assuming their due
authentication by the Trustee) will have been duly and validly issued
and will be valid outstanding obligations of the Company in accordance
with their terms, except as the same may be limited by insolvency,
bankruptcy, reorganization, or other laws relating to or affecting the
enforcement of creditors' rights, and will be entitled to the benefits
of the Indenture.
(g) The issue and sale of the Securities pursuant to any Terms
Agreement and the compliance by the Company with all of the provisions
of the Securities, the Indenture, the Terms Agreement (including the
provisions of this Agreement) will not conflict with or result in any
breach which would constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of
the property or assets of the Company material to the Company pursuant
to the terms of any indenture, loan agreement or other agreement or
instrument for borrowed money to which the Company is a party or by
which the Company may be bound or to which any of the property or
assets of the Company, material to the Company, is subject, nor will
such action result in any material violation of the provisions of the
charter or the by-laws of the Company or any statute or any order, rule
or regulation applicable to the Company of any court or any Federal,
State or other regulatory authority or other governmental body having
jurisdiction over the Company, and no consent, approval, authorization
or other order of, or filing with, any court or any such regulatory
authority or other governmental body is required for the issue and sale
of the Securities, except as may be required under the Act, the
Exchange Act, the Trust Indenture Act and securities laws of the
various states and other jurisdictions in which the Underwriters will
offer and sell the Securities.
3. PURCHASE AND OFFERING OF SECURITIES. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of
telegraphic or other written communications ("TERMS AGREEMENT") at the time the
Company determines to sell the Securities. The Terms Agreement will incorporate
by reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Under-
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writers, the names of any Representatives, the principal amount to be purchased
by each Underwriter, the purchase price to be paid by the Underwriters and the
terms of the Securities not already specified in the Indenture, including, but
not limited to, interest, maturity, any redemption provision and any sinking
fund requirements. The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than four
full business days thereafter as the Representatives and the Company agree as
the time for payment and delivery, being herein and in the Terms Agreement
referred to as the "CLOSING DATE"), the place of delivery and payment and any
details of the terms of the offering that should be reflected in the prospectus
supplement relating to the offering of the Securities. The obligations of the
Underwriters to purchase the Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Securities for sale as set
forth in the Prospectus. Unless the Terms Agreement specifies that the
Securities will be issued in the form of a global security to be deposited with
a depository, as contemplated by the Indenture, the securities delivered to the
Underwriters on the Closing Date will be in definitive fully registered form, in
such denominations and registered in such names as the Underwriters may request.
4. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with
the several Underwriters that it will furnish to the Representatives one signed
copy of the Registration Statement, including all exhibits, in the form in which
it became effective and of all amendments thereto, and that, in connection with
each offering of Securities:
(a) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity
to comment on any such proposed amendment or supplement; and the
Company will also advise the Representatives promptly of the filing of
any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented
would 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,
or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will prepare and file with the
Commission an amendment or supplement which will correct such statement
or omissions or an amendment which will effect such compliance.
(c) As soon as practicable after the date of each Terms
Agreement, the Company will make generally available to its security
holders an earnings statement covering a period of at least 12 months
beginning after the latest of (i) the effective date of the
Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date
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of such Terms Agreement and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to the date
of such Terms Agreement, which will satisfy the provisions of Section
11(a) of the Act.
(d) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as are reasonably
requested.
(e) The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such U.S. jurisdictions as the
Representatives designate and will continue such qualifications in
effect so long as required for the distribution.
(f) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
the Underwriters for any expenses (including reasonable fees and
disbursements of counsel) incurred by them in connection with
qualification of the Registered Securities for sale and determination
of their eligibility for investment under the laws of such
jurisdictions as the Representatives may designate and the printing of
memoranda relating thereto, and for any fees charged by investment
rating agencies for the rating of the Securities and for expenses
incurred in distributing the Prospectus, any preliminary prospectuses
and any preliminary prospectus supplements to underwriters.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of the Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Price Waterhouse LLP, covering such matters as are
customary for accountants' "comfort" letters for underwritten
transactions of the type contemplated by the Terms Agreement
substantially identical to the form attached hereto.
(b) No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
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(c) Subsequent to the execution of the Terms Agreement (i)
there shall not have occurred any change, or any development involving
a prospective change, in or affecting particularly the business or
properties of the Company or its subsidiaries which, in the judgment of
a majority in interest of the Underwriters, including any
Representatives, materially impairs the investment quality of the
Securities or the Registered Securities; (ii) trading generally shall
not have been suspended or materially limited on or by, as the case may
be, any of the New York Stock Exchange, the American Stock Exchange,
the National Association of Securities Dealers, Inc., the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade; (iii) trading of any securities of the Company shall
not have been suspended on any exchange or in any over-the-counter
market; (iv) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading, in
the rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Act; (v) no banking moratorium
shall have been declared by Federal or New York authorities; and (vi)
there shall not have occurred any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international
calamity or emergency or a material adverse change in general economic,
political or financial conditions (or in international conditions which
affect the U.S. financial markets) if, in the judgment of a majority in
interest of the Underwriters, including any Representatives, the effect
of any such outbreak, escalation, declaration, calamity or emergency or
change in conditions makes it impractical to proceed with completion of
the sale of and payment for the Securities.
(d) The Representatives shall have received the favorable
opinion, dated as of Closing Date, of Xxxxxx X. Xxxxxxx, Vice President
and General Counsel of the Company, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) The Company is duly incorporated, validly
existing and in good standing under the laws of the
Commonwealth of Virginia, with full corporate power and
authority to issue and sell the Securities as contemplated
herein and own its properties and conduct its business as
described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in
all other jurisdictions in which it owns or leases substantial
properties or in which the conduct of its business requires
such qualification, except where the failure to be so
qualified would not have a material adverse effect on the
Company.
(ii) Upon payment therefor as provided herein, the
Securities will have been duly and validly authorized and
(assuming their due authentication by the Trustee) will have
been duly and validly issued and will be valid out-
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standing obligations of the Company in accordance with their
terms, except as the same may be limited by insolvency,
bankruptcy, reorganization, or other laws relating to or
affecting the enforcement of creditors' rights, and will be
entitled to the benefits of the Indenture.
(iii) The issue and sale of the Securities pursuant
to the Terms Agreement and the compliance by the Company with
all of the provisions of the Securities, the Indenture, the
Terms Agreement (including the provisions of this Agreement)
will not conflict with or result in any breach which would
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
property or assets of the Company material to the Company
pursuant to the terms of, any indenture, loan agreement or
other agreement or instrument for borrowed money to which the
Company is a party or by which the Company may be bound or to
which any of the property or assets of the Company, material
to the Company, is subject, nor will such action result in any
material violation of the provisions of the charter or the
by-laws of the Company or any statute or any order, rule or
regulation applicable to the Company of any court or any
Federal, State or other regulatory authority or other
governmental body having jurisdiction over the Company, and no
consent, approval, authorization or other order of, or filing
with, any court or any such regulatory authority or other
governmental body is required in connection with the
transactions contemplated by the Terms Agreement (including
the provisions of this Agreement) except as may be required
under the Act, the Exchange Act, the Trust Indenture Act and
securities laws of the various states and other jurisdictions
in which the Underwriters will offer and sell the Securities.
(iv) The Indenture has been duly authorized, executed
and delivered by the Company and (assuming due authorization,
execution and delivery by the Trustee) is a valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally.
(v) The Terms Agreement (including the provisions of
this Agreement) has been duly authorized, executed and
delivered by the Company.
(vi) The Indenture conforms, and the Securities, when
executed, authenticated, issued and delivered in the manner
provided in the Indenture, will conform in all material
respects to the descriptions thereof contained in the
Prospectus.
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(vii) The Registration Statement has become effective
under the Act, and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are
pending or contemplated; and
(viii) Such counsel does not know of any legal or
governmental proceedings required to be described in the
Prospectus which are not described as required, nor of any
contracts or documents of a character required to be described
in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of the Commonwealth of Virginia, upon
the opinion of Hunton & Xxxxxxxx; (B) as to matters involving the application of
laws of any other jurisdiction other than the State of Ohio or the United
States, to the extent he deems proper and specified in such opinion, upon the
opinion of other counsel of good standing who he believes to be reliable and who
are satisfactory to counsel for the Underwriters; and (C) as to matters of fact,
to the extent he deems proper, on certificates of responsible officers of the
Company and public officials.
In addition, such counsel shall state that he has participated
in conferences with officers and other representatives of the Company and, on
the basis of the foregoing and on his ongoing representation of the Company as
its General Counsel, no facts have come to his attention that lead him to
believe that (i) such Registration Statement, at the time such Registration
Statement became effective, or the Registration Statement, as of the date of the
Terms Agreement, or any amendment or supplement to the Registration Statement or
the Prospectus, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) that the Prospectus, as of its date
and the Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that he need express no opinion with respect to the financial statements,
schedules and other financial and statistical data included or incorporated by
reference in the Registration Statement or Prospectus or with respect to the
Form T-1.
(e) The Representatives shall have received the favorable
opinion, dated as of Closing Date, of Rosenman & Colin, counsel to the
Company, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The issue and sale of the Securities pursuant to
the Terms Agreement and the compliance by the Company with all
of the provisions of the Securities, the Indenture, the Terms
Agreement (including the provisions of this Agreement), to our
knowledge after due inquiry, will not conflict with or result
in any breach which would constitute a default under, or
result in the
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creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Company material to the
Company pursuant to the terms of, any material indenture, loan
agreement or other agreement or instrument for borrowed money
to which the Company is a party or by which the Company may be
bound or to which any of the property or assets of the
Company, material to the Company, is subject, nor will such
action result in any material violation of the provisions of
the charter or the by-laws of the Company or any statute or
any order, rule or regulation applicable to the Company of any
court (to our knowledge after due inquiry) or any Federal,
State or other regulatory authority or other governmental body
having jurisdiction over the Company, and no consent,
approval, authorization or other order of, or filing with, any
court (to our knowledge after due inquiry) or any such
regulatory authority or other governmental body is required in
connection with the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) except
as may be required under the Act, the Exchange Act, the Trust
Indenture Act and securities laws of the various states and
other jurisdictions in which the Underwriters will offer and
sell the Securities.
(ii) The Indenture has been duly authorized, executed
and delivered by the Company and (assuming due authorization,
execution and delivery by the Trustee) is a valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally.
(iii) The Terms Agreement (including the provisions
of this Agreement) has been duly authorized, executed and
delivered by the Company.
(iv) The Indenture conforms, and the Securities, when
executed, authenticated, issued and delivered in the manner
provided in the Indenture, will conform in all material
respects to the descriptions thereof contained in the
Prospectus.
(v) The Indenture has been duly qualified under the
Trust Indenture Act.
(vi) The Registration Statement has become effective
under the Act, and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are
pending or contemplated.
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(vii) The Registration Statement and the Prospectus,
as of the date of the Terms Agreement, and each amendment or
supplement thereto, as of their respective effective or
mailing dates (but excluding the financial statements and
schedules and other financial and statistical data and the
Form T-l included or incorporated by reference therein, as to
which such counsel need express no opinion) complied as to
form in all material respects with the Act, the Trust
Indenture Act and the Rules and Regulations, as applicable;
and
(viii) Such counsel does not know of any legal or
governmental proceedings required to be described in the
Prospectus which are not described as required, nor of any
contracts or documents of a character required to be described
in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of the Commonwealth of Virginia, upon
the opinion of Hunton & Xxxxxxxx, and as to matters involving the application of
the laws of the State of Ohio, upon the opinion of the Vice President and
General Counsel of the Company; (B) as to matters involving the application of
laws of any other jurisdiction other than the State of New York or the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing who they believe to be reliable and
who are satisfactory to counsel for the Underwriters; and (C) as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials.
In addition, such counsel shall state that it has participated
in conferences with officers and other representatives of the Company, including
without limitation, inside counsel for the Company, representatives of the
independent public accountants for the Company, and the Underwriters, at which
the contents of the Registration Statement and Prospectus and related manners
were discussed and, on the basis of the foregoing and on its ongoing
representation of the Company, no facts have come to its attention that lead it
to believe that (i) such Registration Statement, at the time such Registration
Statement became effective, or the Registration Statement, as of the date of the
Terms Agreement, or any amendment or supplement to the Registration Statement or
the Prospectus, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) that the Prospectus, as of its date
and the Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that it need express no opinion with respect to the financial statements,
schedules and other financial and statistical data included or incorporated by
reference in the Registration Statement or Prospectus or with respect to the
Form T-1.
(f) The Representatives shall have received the favorable
opinion, dated as of Closing Date, of Hunton & Xxxxxxxx, Xxxxxxxx
counsel for the Company, in form and substance reasonably satisfactory
to the Representatives, to the effect that:
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(i) The Company is duly incorporated, validly
existing and in good standing under the laws of the
Commonwealth of Virginia, with full corporate power and
authority to issue and sell the Securities as contemplated
herein and own its properties and conduct its business as
described in the Prospectus.
(ii) Upon payment therefor as provided herein, the
Securities will have been duly and validly authorized and
(assuming their due authentication by the Trustee) will have
been duly and validly issued and will be valid outstanding
obligations of the Company in accordance with their terms,
except as the same may be limited by insolvency, bankruptcy,
reorganization, or other laws relating to or affecting the
enforcement of creditors' rights, and will be entitled to the
benefits of the Indenture.
(iii) The issue and sale of the Securities pursuant
to the Terms Agreement and the compliance by the Company with
all of the provisions of the Securities, the Indenture, the
Terms Agreement (including the provisions of this Agreement),
to our knowledge after due inquiry, will not conflict with or
result in any breach which would constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company
material to the Company pursuant to the terms of, any material
indenture, loan agreement or other agreement or instrument for
borrowed money to which the Company is a party or by which the
Company may be bound or to which any of the property or assets
of the Company, material to the Company, is subject, nor will
such action result in any material violation of the provisions
of the charter or the by-laws of the Company or any statute or
any order, rule or regulation applicable to the Company of any
Federal or Virginia court or any Federal or Virginia
regulatory authority or other governmental body having
jurisdiction over the Company, and no consent, approval,
authorization or other order of, or filing with, any court or
any such regulatory authority or other governmental body is
required in connection with the transactions contemplated by
the Terms Agreement (including the provisions of this
Agreement) except as may be required under the Act, the
Exchange Act, the Trust Indenture Act and securities laws of
the Commonwealth of Virginia.
(iv) The Indenture has been duly authorized, executed
and delivered by the Company and (assuming due authorization,
execution and delivery by the Trustee) is a valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally;
and
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(v) The Terms Agreement (including the provisions of
this Agreement) has been duly authorized, executed and
delivered by the Company.
(g) The Representatives shall have received from counsel for
the Underwriters, to be named in the Terms Agreement, such opinion or
opinions, dated the Closing Date, with respect to the validity of the
Securities, the Registration Statement, the Prospectus and other
related matters as they may require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(h) The Representatives shall have received a certificate,
dated the Closing Date, of any vice-president and a principal financial
or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements
incorporated into the Registration Statement, there has been no
material adverse change in the business, financial position or results
of operations of the Company and its subsidiaries except as set forth
in or contemplated by the Prospectus.
(i) The Representatives shall have received a letter, dated
the Closing Date, of Price Waterhouse LLP, which reconfirms the matters
set forth in their letter delivered pursuant to subsection (a) of this
Section and covering such matters as are customary for accountants'
"comfort" letters for underwritten transactions of the type
contemplated by the Terms Agreement and in form and substance
reasonably satisfactory to the Representatives.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each
Underwriter (including any Underwriter in its role as qualified independent
underwriter pursuant to the rules of the National Association of Securities
Dealers, Inc.), its officers and employees and each person, if any, who controls
any Underwriter within the meaning of the Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Securities), to which that Underwriter,
officer, employee or controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the Registration
Statement or the Pro-
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spectus or in any amendment or supplement thereto, (ii) the omission or alleged
omission to state in any preliminary prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
application any material fact required to be stated therein or necessary to make
the statements therein not misleading or (iii) any act or failure to act or any
alleged act or failure to act by any Underwriter in connection with, or relating
in any manner to, the Securities or the offering contemplated hereby, and which
is included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by such Underwriter through its gross negligence or willful misconduct), and
shall reimburse each Underwriter and each such officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by that Underwriter, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, in reliance upon and in
conformity with written information concerning such Underwriter furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any
Underwriter or to any officer, employee or controlling person of that
Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of its
directors and each person, if any, who controls the Company within the meaning
of the Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any preliminary prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or (B) in
any Blue Sky application or (ii) the omission or alleged omission to state in
any preliminary prospectus, the Registration Statement or the Prospectus, or in
any amendment or supplement thereto, or in any Blue Sky application any material
fact required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning such Underwriter
furnished to the Company through the Representatives by or on behalf of that
Underwriter specifically for inclusion therein, and shall reimburse the Company
and any such director, officer or controlling person for any legal or other
expenses reasonably
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incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such director, officer,
employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Underwriters
against the Company under this Section 6 if, in the reasonable judgment of the
Representatives, it is advisable for the Representatives and those Underwriters,
officers, employees and controlling persons to be jointly represented by
separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), 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, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld).
(d) If the indemnification provided for in this Section 6
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 6(a) or 6(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
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15
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities purchased hereunder (before deducting
expenses) received by the Company, on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the
Securities purchased hereunder, on the other hand, bear to the total gross
proceeds from the offering of the Securities hereunder in each case as set forth
in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section 6 were to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 6 shall be deemed to include, for purposes of
this Section 6(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6(d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public was offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 6(d) are several in proportion to their
respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public offering of the
Stock by the Underwriters set forth on the cover page of, the legend concerning
over-allotments on the inside front cover page of and the concession and
reallowance figures and table of underwriters (and the principal amounts of the
Securities to be purchased by them) appearing under the caption
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16
"Underwriting" in, the Prospectus are correct and constitute the only
information concerning such Underwriters furnished in writing to the Company by
or on behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
7. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made within
36 hours after such default, such Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
The foregoing obligations and agreements set forth in this
Section will not apply if the Terms Agreement specifies that such obligations
and agreements will not apply.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If the Terms Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Securities by the Underwriters under the Terms Agreement is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4 and the respective obligations of the Company and the
Underwriters pursuant to Section 6 shall remain in effect. If the purchase of
the Securities by the Underwriters is not consummated because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement or if for any reason the Company shall be
unable to perform its obligations under this Agreement, the Company will
reimburse the Underwriters for all reasonable out-of-pocket expenses (including
reasonable fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Securities.
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9. NOTICES. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their addresses furnished to the Company in writing for the
purpose of communications hereunder or, if sent to the Company, will be mailed,
delivered or sent via facsimile, e-mail or courier service and confirmed to it
at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxx 00000, Attention of General Counsel.
10. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. APPLICABLE LAW. This Agreement and the Terms Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York.
22
Schedule C to Terms Agreement
DESCRIPTION OF THE NOTES
The Notes will be unsecured general obligations of the Company, ranking on
a parity with all other unsecured and unsubordinated indebtedness of the Company
which may be outstanding from time to time. The description of Debt Securities
set out under "Description of Debt Securities" in the accompanying Prospectus
(including the covenants and the discharge and defeasance provisions of the
Indenture described therein) will apply to the Notes offered hereby, except as
otherwise provided in the following description of the particular terms of the
2008 Notes and 2028 Notes. The following description of the Notes is qualified
in its entirety by reference to the Indenture and to the First Supplemental
Indenture dated March 11, 1998 designating the Notes (the "Indenture
Supplement"). Capitalized terms used but not defined below have the meanings
ascribed to them in the Prospectus and the Indenture.
GENERAL
The Notes will be limited to $350,000,000 in aggregate principal amount.
The 2008 Notes will be limited to $150,000,000 in aggregate principal amount,
will mature on March 15, 2008, and will bear interest at the rate of 6.50% per
annum. The 2028 Notes will be limited to $200,000,000 in aggregate principal
amount, will mature on March 15, 2028, and will bear interest at the rate of
7.00% per annum. For the Notes, interest will be computed on the basis of a
360-day year of twelve 30-day months, from the date of issuance, or the most
recent Interest Payment Date to which interest has been paid or provided for,
and will be payable semiannually on March 15 and September 15 of each year,
commencing September 15, 1998, to the persons in whose names the Notes are
registered at the close of business on March 1 or September 1, as the case may
be, next preceding such Interest Payment Date. The Company will be required to
pay interest on any overdue principal and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at a rate of 1.00% per annum over the coupon rate for each Note,
compounded semi-annually. The Notes will not be convertible into or exchangeable
for Common Stock or Preferred Stock of the Company and will not be entitled to
the benefit of any sinking fund. The Notes will not be listed on any securities
exchange.
BOOK-ENTRY SYSTEM, FORM AND DELIVERY
The Notes will be issued in the form of one or more Global Securities
registered in the name of a nominee of The Depository Trust Company (the
"Depository") and the provisions set forth under "Description of Debt
Securities -- Global Securities" in the accompanying Prospectus will apply to
the Notes. The Notes will be issued in denominations of U.S. $1,000 and any
integral multiple thereof. Settlement for the Notes will be made by the
Underwriters in immediately available funds. All payments of principal and
interest on the Notes will be made by the Company in immediately available funds
so long as the Notes are maintained in book-entry form.
The Notes will trade in the Depository's Same-Day Funds Settlement System
and secondary trading activity in the Notes will therefore be required by the
Depository to settle in immediately available funds. No assurance can be given
as to the effect, if any, of settlement in immediately available funds on
trading activity in the Notes.
OPTIONAL REDEMPTION
The Company will have the right to redeem the Notes at any time, in whole
or in part, upon not less than 30 calendar days' notice by mail at a redemption
price equal to the sum of the principal amount of the Notes being redeemed (plus
accrued interest thereon to the redemption date) and any Make-Whole Amount (as
defined below) with respect to the Notes. Interest installments on a Note
specified to be due on or prior to such redemption date will be payable to the
holders of record on the relevant Record Date.
As used in connection with any redemption of the Notes, "Make-Whole Amount"
means any excess of (1) the aggregate present value (as of the redemption date)
of the principal being redeemed and the remaining payments of interest
(excluding that accrued before the redemption date) payable on that principal
had the redemption not been made, determined by discounting the principal and
interest on a semi-annual basis at the Reinvestment Rate (determined on the
third Business Day before the notice of redemption is given) from the dates on
which the principal and interest would have been payable to the redemption date,
over (2) the aggregate principal amount of the Notes being redeemed.
23
As used herein,
(1) "Reinvestment Rate" means "Treasury Yield" plus (i) 0.10% for the
2008 Notes; (ii) 0.15% for the 2028 Notes.
(2) "Treasury Yield" means the yield on Treasury securities at a
constant maturity corresponding to the remaining life to the stated
maturity (as of the redemption date, rounded to the nearest month) of the
principal being redeemed. The Treasury Yield will be equal to the
arithmetic mean of the yields published in the Statistical Release under
the heading "Week Ending" for "U.S. Government Securities-Treasury Constant
Maturities" with a maturity equal to such remaining life. If no published
maturity exactly corresponds with such remaining life, then the Treasury
Yield will be interpolated or extrapolated on a straight-line basis from
the arithmetic mean of the yields for the next shortest and next longest
published maturities.
(3) "Statistical Release" means the "H.15 (519)" or any successor
publication which is published weekly by the Board of Governors of the
Federal Reserve System and which reports yields on actively traded United
States government securities adjusted to constant maturities. If no
Statistical Release is published at the time of any redemption of the Notes
or if the format or content of the Statistical Release changes so as to
preclude a determination of the Treasury Yield in the above manner, the
Company will designate a reasonably comparable index.
For calculating the Reinvestment Rate, the Company will use the most recent
Statistical Release published before the date of determination of the Make-Whole
Amount.
If fewer than all of the Notes are to be redeemed, the Trustee will select
the particular Notes or portions thereof for redemption from the outstanding
Notes not previously called, either pro rata, by lot or by such other method as
the Trustee deems fair and reasonable. The aggregate principal amounts to be
redeemed must equal $1,000 or any integral multiple thereof, and the selection
must be made not more than 60 days or less than 30 days before the redemption
date.
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[XXXX LETTERHEAD]
March 11, 1998
XXXXXX BROTHERS INC.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED,
X.X. XXXXXX SECURITIES INC.,
As Representatives of the Several Underwriters,
c/x XXXXXX BROTHERS INC.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
We accept the offer contained in your letter dated March 11,
1998 relating to $150,000,000 principal amount of our 6.50% Notes Due March 15,
2008, and $200,000,000 principal amount of our 7.00% Notes Due March 15, 2028.
We also confirm that 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 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.
Very truly yours,
XXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
