EXHIBIT 1.2
PRICING AGREEMENT RELATING TO 7.50% SENIOR NOTES DUE 2011
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated Banc of America
Securities LLC Banc One Capital Markets, Inc.
Wachovia Securities, Inc.
First Union Securities, Inc.
The Xxxxxxxx Capital Group, L.P.
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
January 24, 2001
Ladies and Gentlemen:
Xxxxxxxxx'x, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated January 24, 2001 (the "Underwriting
Agreement"), between the Company on the one hand and Xxxxxxx, Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated, Banc of America
Securities LLC, Banc One Capital Markets, Inc., Wachovia Securities, Inc.,
First Union Securities, Inc., and The Xxxxxxxx Capital Group, L.P., on the
other hand, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule II hereto
(the "Designated Securities").
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 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 Pricing Agreement, except that each representation and warranty
which 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 (as therein defined),
and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating
to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall
be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representative designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the address of such
Representative is set forth at the end of Schedule II hereto.
A supplement to the Prospectus, relating to the Designated
Securities, 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 sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us twelve counterparts hereof, and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, constitute a binding agreement between
each of the Underwriters and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will
be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on the part of the
Representative as to the authority of the signers thereof other than the
Representative.
Very truly yours,
Xxxxxxxxx'x, Inc.
By: /s/ A. Xxxxx Xxxxx
-----------------------
A. Xxxxx Xxxxx
Executive Vice President and
Chief Financial Officer
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated Banc of
America Securities LLC Banc One Capital Markets, Inc.
Wachovia Securities, Inc.
First Union Securities, Inc.
The Xxxxxxxx Capital Group, L.P.
By: Xxxxxxx, Xxxxx & Co.
/s/ Xxxxxxx, Sachs & Co.
----------------------------
Name:
Title:
SCHEDULE I
7.50% SENIOR NOTES DUE 2011
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- -----------
Xxxxxxx, Xxxxx & Co......................................$ 350,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated...... 126,000,000
Banc of America Securities LLC........................... 84,000,000
Banc One Capital Markets, Inc............................ 49,000,000
Wachovia Securities, Inc................................. 49,000,000
First Union Securities, Inc.............................. 21,000,000
The Xxxxxxxx Capital Group, L.P.......................... 21,000,000
Total...........................................$ 700,000,000
=============
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
7.50% Senior Notes due 0000
XXXXXXXXX PRINCIPAL AMOUNT:
$700,000,000
PRICE TO PUBLIC:
99.924% of the principal amount of the Designated Securities, plus
accrued interest from January 29, 2001.
PURCHASE PRICE BY UNDERWRITERS:
99.274% of the principal amount of the Designated Securities, plus
accrued interest from January 29, 2001.
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for inspection by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds.
TIME OF DELIVERY:
10:00 a.m. (New York City time), January 29, 2001.
INDENTURE:
Indenture dated May 1, 1992, between the Company and U.S. Bank
Trust National Association, fka First Trust of New York, National
Association, as Trustee and as successor in interest to the corporate trust
business of Xxxxxx Guaranty Trust Company of New York.
MATURITY:
February 15, 2011.
INTEREST RATE:
7.50%.
INTEREST PAYMENT DATES:
February 15 and August 15 of each year, commencing August 15,
2001.
REDEMPTION PROVISIONS:
The Company may redeem all or any part of the Notes at any time at
a price equal to the greater of (i) 100% of the principal amount of the
Notes to be redeemed; and (ii) an amount, as determined by the Quotation
Agent (as defined in the Indenture or the Section 301 Officer's
Certificate), equal to the sum of the present values of the remaining
scheduled payments of principal and interest on the Notes to be redeemed
(not including any portion of payments of interest accrued as of the
redemption date) discounted to the redemption date on a semi-annual basis
(assuming a 360-day year comprised of twelve 30-day months, at the Adjusted
Treasury Rate (as defined in the Indenture or the Section 301 Officer's
Certificate) plus 25 basis points, plus accrued and unpaid interest to the
redemption date, all as specified in further detail in the Indenture and
the Section 301 Officer's Certificate.
SINKING FUND PROVISIONS:
The Notes do not provide for any sinking fund.
DEFEASANCE PROVISIONS:
The defeasance and covenant defeasance provisions set forth in
Article 13 of the Indenture will apply to the Notes.
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn. Xxxx X. Xxxx or Xxxxxx Xxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
NAMES AND ADDRESS OF REPRESENTATIVE:
Xxxxxxx Sachs & Co,
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
OTHER TERMS:
The covenants set forth in Sections 1008 and 1009 of the Indenture
will apply to the Notes.
