Exhibit 1.2
Pricing Agreement Relating to 7.25% Senior Notes due 0000
Xxxx xx Xxxxxxx Securities LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated
Xxxxxxx, Sachs & Co.
Banc One Capital Markets, Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Wachovia Securities, Inc.
First Union Securities, Inc.
The Xxxxxxxx Capital Group, L.P.
c/o
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
000 Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
April 26, 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 April 26, 2001 (the "Underwriting
Agreement"), between the Company on the one hand and Banc of America
Securities LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated,
Xxxxxxx, Sachs & Co., Banc One Capital Markets, Inc., U.S. Bancorp Xxxxx
Xxxxxxx Inc., Wachovia Securities, Inc., First Union Securities, Inc., 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.
[Remainder of this page intentionally left blank]
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
Banc of America Securities LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated
Xxxxxxx, Sachs & Co.
Banc One Capital Markets, Inc.
First Union Securities, Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Wachovia Securities, Inc.
The Xxxxxxxx Capital Group, L.P.
By:
Banc of America Securities LLC
/s/ Xxxx XxXxxxxxx
-----------------------------------
Xxxx XxXxxxxxx
Managing Director
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
/s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx
Vice President
SCHEDULE I
7.25% SENIOR NOTES DUE 2013
Principal Amount of
Underwriter Designated Securities
to be Purchased
Banc of America Securities LLC ................................... $60,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated .............. 60,000,000
Xxxxxxx, Sachs & Co............................................... 36,000,000
Banc One Capital Markets, Inc. ................................... 14,000,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. .................................. 10,000,000
Wachovia Securities, Inc. ........................................ 8,000,000
First Union Securities, Inc. ..................................... 6,000,000
The Xxxxxxxx Capital Group, L.P. ................................. 6,000,000
Total.................................................... $200,000,000
============
SCHEDULE II
Title of Designated Securities:
7.25% Senior Notes due 0000
Xxxxxxxxx Principal Amount:
$200,000,000
Price to Public:
99.534% of the principal amount of the Designated Securities, plus
accrued interest from May 1, 2001.
Purchase Price by Underwriters:
98.859% of the principal amount of the Designated Securities, plus
accrued interest from May 1, 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), May 1, 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:
May 1, 2013.
Interest Rate:
7.25%.
Interest Payment Dates:
May 1 and November 1 of each year, commencing November 1, 2001.
Redemption Provisions:
The Company may redeem all or any part of the Designated
Securities at any time at a price equal to the greater of (i) 100% of the
principal amount of the Designated Securities 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
Designated Securities 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 Designated Securities 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 Designated Securities.
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, Esq.
Telephone: 000-000-0000
Fax: 000-000-0000
Names and Address of Representatives:
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
000 Xxxxx Xxxxxx
Xxxxx Tower
World Financial Center
Xxx Xxxx, XX 00000
Other Terms:
The covenants set forth in Sections 1008 and 1009 of the Indenture
will apply to the Designated Securities.
