Exhibit 1
Execution Copy
▇▇▇▇▇▇ CORPORATION
(a Virginia corporation)
$200,000,000
6.8% Senior Notes due 2013
UNDERWRITING AGREEMENT
Dated: February 20, 2003
▇▇▇▇▇▇ Corporation
Debt Securities
Underwriting Agreement
February 20, 2003
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described.
Ladies and Gentlemen:
From time to time ▇▇▇▇▇▇ Corporation, a Virginia corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") to be attached as Annex I hereto, subject to the terms and
conditions stated herein and therein, to issue and sell to the firm or firms
named in Schedule I to the applicable Pricing Agreement (such firm or firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Securities"),
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Firm Securities"). If specified in such Pricing Agreement, the
Company may grant to the Underwriters the right to purchase at their election an
additional aggregate principal amount of debt securities, specified in such
Pricing Agreement as provided in Section 3 hereof (the "Optional Securities").
The Firm Securities and the Optional Securities, if any, which
the Underwriters elect to purchase pursuant to Section 3 hereof are herein
collectively called the "Designated Securities."
The Designated Securities are to be issued pursuant to an
indenture dated as of June 5, 2001, between the Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank) as trustee (the "Trustee"), as
supplemented to date and as to be further supplemented by the second
supplemental indenture thereto (the "Indenture"). The Designated Securities
issued in book-entry form will be issued to Cede & Co., as nominee of the
Depository Trust Company ("DTC") pursuant to a letter agreement, to be dated as
of the Time of Delivery (as defined in Section 4 below), among the Company, the
Trustee and DTC. The Designated Securities and the Indenture are more fully
described in the Prospectus referred to below.
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Company to sell any of
the Securities or as an obligation of any of the Underwriters to purchase any of
the Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of Firm Securities, the maximum principal amount
of Optional Securities, if any, the initial public offering price of such
Designated Securities or the manner of determining such price, the purchase
price to the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the Representatives of
such Underwriters, the number of such Designated Securities to be purchased by
each Underwriter and the commission, if any, payable to the Underwriters with
respect thereto and shall set forth the date, time and manner of delivery of
such Designated Securities, and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. (a) The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-71952) as
amended by Amendment No. 1 thereto (the "Registration Statement") in
respect of the Securities has been filed with the Securities and Exchange
Commission (the "Commission"); the Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to (i) the Representatives and (ii) excluding exhibits to
the Registration Statement, but including all documents incorporated by
reference in the prospectus included therein, to the Representatives for
each of the other Underwriters, have been declared effective by the
Commission in such form; the Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"); other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Registration Statement
or document incorporated by reference therein has heretofore been filed, or
transmitted for filing, with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the
Registration Statement, any post-effective amendment thereto or the Rule
462(b) Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission; the
final prospectus and the final prospectus supplement relating to any
Designated Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of such Designated
Securities, are collectively hereinafter called the "Prospectus" with
respect to such Designated Securities; provided,
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however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated
therein by reference filed pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), prior to the execution of the
applicable Pricing Agreement; all references in this Agreement to
financial statements and schedules and other information which is
"contained," "included" or "stated" (or other references of like
import) in the Registration Statement, Prospectus or preliminary
prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary
prospectus, as the case may be, prior to the execution of the
applicable Pricing Agreement; and all references in this Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to include the filing of any
document under the Exchange Act which is incorporated by reference in
the Registration Statement, Prospectus or preliminary prospectus, as
the case may be, after the execution of the applicable Pricing
Agreement; any statement contained in a document incorporated or deemed
incorporated by reference shall be deemed to be modified or superceded
for purposes of the Registration Statement or the Prospectus to the
extent that a statement contained in the Prospectus or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference modifies or replaces such statement, and any
statement so modified or superceded shall not be deemed to constitute a
part of the Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in 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 Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and will not contain 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; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus or any amendment thereto relating to such
Securities nor shall this representation and warranty apply to that part of
the Registration Statement that constitutes the Statement of Eligibility on
Form T-1 (the "Form T-1") under the 1939 Act of the relevant trustee;
(iii) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
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applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in
the Prospectus or any amendment thereto relating to such Securities;
(iv) Neither the Company nor any of its subsidiaries which meets
the definition of a significant subsidiary as defined in Regulation
S-X (a "Significant Subsidiary") 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 respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock of the
Company (other than (i) pursuant to the Company's employee stock
purchase plan existing on the date hereof or (ii) exercise of certain
employee stock options existing on the date hereof) or, except for
borrowings under the Company's existing revolving credit facility, any
increase, on a consolidated basis, in the long-term debt of the
Company and 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;
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Virginia,
with power and authority (corporate and other) to own, lease and
operate its properties and conduct its business in all material
respects as described in the Prospectus; and has been duly qualified
as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which its
owns or leases properties, or conducts any business, so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction;
(vi) Each subsidiary of the Company has been duly formed and is
validly existing as a legal entity in good standing under the laws of
its jurisdiction of formation with power and authority (corporate and
other) to own, lease and operate its properties and to conduct its
business in all material respects as described in the Prospectus; each
subsidiary of the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or lease
properties or conducts any business so as to require qualification or
is subject to no material liability or disability by reason of the
failure to be so qualified in any jurisdiction;
(vii) The Company has an authorized capitalization as set forth
in the Prospectus, all of the issued and outstanding shares of capital
stock of the Company have
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been duly and validly authorized and issued and are fully paid
and non-assessable; all of the issued and outstanding shares of
capital stock of each Significant Subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(viii) The Securities have been duly and validly authorized, and,
when the Firm Securities are issued and delivered pursuant to this
Underwriting Agreement, the Pricing Agreement and the Indenture with
respect to the Designated Securities and, in the case of any Optional
Securities, pursuant to an Over-allotment Option (as defined in
Section 3 hereof) and the Indenture with respect to such Designated
Securities, such Designated Securities will be duly executed,
authenticated, issued and delivered; the Securities conform to the
description thereof contained in the Registration Statement and the
Designated Securities will conform to the description thereof
contained in the Prospectus with respect to such Designated
Securities;
(ix) The issue and sale of the Firm Securities and the Optional
Securities and the compliance by the Company with all of the
provisions of this Underwriting Agreement, any Pricing Agreement and
each Over-allotment Option, if any, and the consummation of the
transactions contemplated herein and therein will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, except in each case, for
such conflicts, breaches, violations or defaults as could not
reasonably be expected, individually or in the aggregate, to have a
material adverse effect on the financial position, shareholders'
equity or results of operations of the Company (a "Material Adverse
Effect"), nor will such action result in any violation of (i) the
provisions of the Articles of Incorporation or By-laws of the Company
or (ii) any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its properties, except, in the case of clause (ii), for such
violations as could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the Firm Securities and the Optional Securities or
the consummation by the Company of the transactions contemplated by
this Agreement or any Pricing Agreement or any Over-allotment Option,
except such as have been, or will have been prior to each Time of
Delivery (as defined in Section 4 hereof), obtained under the Act,
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(x) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject, which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
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consolidated financial position, shareholders' equity or results
of operations of the Company and its subsidiaries; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(xi) Neither the Company nor any of its subsidiaries is (i) in
violation of its Articles of Incorporation or By-laws or (ii) in
default in the performance or observance of any 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,
except, in the case of clause (ii), where such violation or default
could not reasonably be expected to have a Material Adverse Effect;
(xii) Each of the Company and its subsidiaries is in compliance
with, and conducts its business in conformity with, all applicable
laws and governmental regulations, except where the failure to be so
in compliance could not reasonably be expected to have a Material
Adverse Effect;
(xiii) The statements set forth in the Prospectus under the
caption "Description of Notes" and "Description of Debt Securities",
insofar as they purport to constitute a summary of the terms of the
Designated Securities and the Indenture, are accurate and complete in
all material respects;
(xiv) The Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company", as
such term is defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(xv) KPMG LLP, who have certified certain financial statements of
the Company and its subsidiaries, are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder; and
(xvi) The financial statements included in the Registration
Statement and the Prospectus, together with the related schedules and
notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The selected financial data and the
summary financial information included in the Prospectus present
fairly the information shown therein and, to the extent derived
therefrom, have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale upon the terms and conditions set forth in the Prospectus.
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The Company may specify in the Pricing Agreement applicable to
any Designated Securities that the Company thereby grants to the Underwriters
the right (an "Overallotment Option") to purchase at their election up to the
maximum aggregate principal amount of Optional Securities set forth in such
Pricing Agreement, on the terms set forth in the paragraph above, for the sole
purpose of covering over-allotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised by written notice from
the Representatives to the Company, given within a period specified in the
Pricing Agreement, setting forth the aggregate principal amount of Optional
Securities to be purchased and the date on which such Optional Securities are to
be delivered, as determined by the Representatives but in no event earlier than
the First Time of Delivery (as defined in Section 4 hereof) or, unless the
Representatives and the Company otherwise agree in writing, earlier than or
later than the respective number of business days after the date of such notice
set forth in such Pricing Agreement.
The aggregate principal amount of Optional Securities to be
added to the aggregate principal amount of Firm Securities to be purchased by
each Underwriter, as set forth in Schedule I to the Pricing Agreement applicable
to such Designated Securities, shall be, in each case, the aggregate principal
amount of Optional Securities which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided that, if the
Company has not been so advised, the aggregate principal amount of Optional
Securities to be so added shall be, in each case, that proportion of Optional
Securities which the aggregate principal amount of Firm Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate principal amount of Firm Securities. The total aggregate principal
amount of Designated Securities to be purchased by all the Underwriters pursuant
to such Pricing Agreement shall be the aggregate principal amount of Firm
Securities set forth in Schedule I to such Pricing Agreement plus the aggregate
principal amount of Optional Securities which the Underwriters elect to
purchase.
4. Certificates for the Firm Securities and the Optional
Securities to be purchased by each Underwriter pursuant to the Pricing Agreement
relating thereto, in the form specified in such Pricing Agreement and in such
authorized denominations and registered in such names as the Representatives may
request upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives for the account
of such Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to the Representatives at least forty-eight
hours in advance, as specified in such Pricing Agreement, (i) with respect to
the Firm Securities, all in the manner and at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "First Time of Delivery" and (ii) with respect to
the Optional Securities, if any, in the manner and at the time and date
specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Securities, or at such other time and date as the Representatives and the
Company may agree upon in writing, such time and date, if not the First Time of
Delivery, herein called the "Second Time of Delivery". Each such time and date
for delivery is herein called a "Time of Delivery".
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5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus in relation to the applicable
Designated Securities in a form approved by the Representatives and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement relating
to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or
Prospectus after the date of the Pricing Agreement relating to such
Designated Securities and prior to any Time of Delivery for such
Designated Securities which shall be disapproved by the
Representatives for such Designated Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after any Time of Delivery for such
Designated Securities and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Designated Securities,
and during such same period to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of
any prospectus relating to the Securities or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any
jurisdiction;
(c) Promptly as practicable after the date of the Pricing
Agreement applicable to the Designated Securities and from time to
time, to furnish the Underwriters with written and electronic copies
of the Prospectus in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Securities and if at such time any event shall have
occurred 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
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material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the Act or the Exchange Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
written and electronic copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect
such compliance;
(d) To make generally available to its security holders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to the date
specified in the Pricing Agreement (if any), the Company will not, the
Company will not, without the prior written consent of the
Representative, directly or indirectly, issue, sell, offer or contract
to sell, grant any option for the sale of, or otherwise dispose of,
the securities specified in the Pricing Agreement;
(f) To apply the net proceeds from the sale of the Designated
Securities sold by the Company substantially in accordance with the
description set forth in the Prospectus;
(g) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on
the date of the Pricing Agreement for such Designated Securities, and
the Company shall at the time of filing either pay the Commission the
filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act;
(h) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trade names and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the
on-line offering of the Securities (the "License"); provided, however,
that the License shall be used solely for the purpose described above
for a period not to exceed 120 days, is granted without any fee and
may not be assigned or transferred.
6. The Company hereby covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any preliminary prospectus and the Prospectus and
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amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Blue Sky Memorandum, closing documents (including compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey(s); (iv) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
reviews by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (v) the cost of preparing certificates for the
Securities; and (vi) the cost and charges of any transfer agent or registrar or
dividend disbursing agent. It is understood, however, that, except as provided
in this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company in
or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the Company shall
have performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Prospectus in relation to such Designated Securities
shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with
Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 P.M., Washington, D.C. time, on the date of
the Pricing Agreement; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated each Time
of Delivery for such Designated Securities, with respect to
certain matters covered in paragraphs (iv), (v), (ix) and (xii)
of subsection (c) below, as well as such other related matters as
the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters. As
to all matters of Virginia law, such counsel may rely on the
opinion of McGuireWoods LLP;
(c) McGuireWoods LLP, counsel for the Company, shall have
furnished to the Representatives their written opinions, dated
each Time of Delivery for such Designated
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Securities, respectively, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Virginia, with full corporate power and authority
to own its properties and conduct its business as described in
the Prospectus;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued and outstanding
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable; and
the Designated Securities delivered pursuant to this Agreement
and the Pricing Agreement with respect to such Designated
Securities, and, in the case of any Optional Securities, pursuant
to Over-allotment Option (as defined in Section 3 hereof) with
respect to such Optional Securities, have been duly authorized,
executed, authenticated, issued and delivered;
(iii) This Underwriting Agreement and the Pricing Agreement
with respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(iv) The Designated Securities have been duly authorized and
executed by the Company for issuance and sale pursuant to the
terms of the Pricing Agreement and, assuming due authorization,
execution and delivery by the Trustee, and when delivered against
payment therefor as contemplated by the Pricing Agreement, will
constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding
in equity or at law), and are entitled to the benefits of the
Indenture.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, constitutes a valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar law affecting enforcement
of creditors' rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
the Indenture is qualified under the 1939 Act.
(vi) The issue and sale of the Designated Securities being
delivered at such Time of Delivery and the compliance by the
Company with all of the
11
provisions of this Agreement and the Pricing Agreement with
respect to the Designated Securities and the consummation of
the transactions herein and therein contemplated will not (i)
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument that would constitute a material
contract as described in Item 601(b)(10) of Regulation S-K
known to such counsel to which the Company is a party or by
which the Company is bound or to which any of the property or
assets of the Company is subject or (ii) result in any
violation of the provisions of the Articles of Incorporation
or By-laws of the Company, except, in the case of clause (i),
for such conflicts, breaches, violations or defaults that
could not reasonably be expected to have a Material Adverse
Effect; in rendering the opinion in clause (i) hereof, such
counsel may rely upon a certificate of the Company in respect
of which contracts constitute material contracts as described
in Item 601(b)(10) of Regulation S-K, provided that such
counsel shall state that they believe that both you and they
are justified in relying upon such certificate;
(vii) The issue and sale of the Firm Securities and the
Optional Securities being delivered at such Time of Delivery and
the compliance by the Company with all of the provisions of this
Agreement and the Pricing Agreement with respect to such Firm
Securities and Optional Securities and the consummation of the
transactions herein and therein contemplated will not result in a
violation of any statute or any order, rule or regulation known
to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its properties,
except for such conflicts, breaches, violations or defaults that
could not reasonably be expected to have a Material Adverse
Effect;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body having jurisdiction over the Company
or any of its properties is required for the issue and sale of
the Firm Securities and Optional Securities being delivered at
such Time of Delivery or the consummation by the Company of the
transactions contemplated by this Agreement or such Pricing
Agreement, except such as have been obtained under the Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(ix) The statements set forth in the Prospectus under the
captions "Description of Notes" and "Description of Debt
Securities", insofar as they purport to constitute a summary of
the terms of the Designated Securities and the Indenture, are
accurate and complete in all material respects;
(x) The Company is not an "Investment Company", as such term
is defined in the Investment Company Act;
12
(xi) The documents incorporated by reference in the
Prospectus (other than the financial statements and related
schedules and other financial data therein, as to which such
counsel need express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as
to form in all material respects with the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder;
(xii) The Registration Statement and the Prospectus, and any
further amendments and supplements thereto made by the Company
prior to such Time of Delivery (other than the financial
statements and related schedules and other financial data
therein, as to which such counsel need express no opinion),
comply as to form in all material respects with the requirements
of the Act and the rules and regulations thereunder. Such counsel
shall also state that, although they are not passing upon, do not
assume any responsibility for, and have not independently
verified, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the
Prospectus and any further amendments or supplements to the
Prospectus made by the Company prior to such Time of Delivery,
except for those referred to in the opinion in subsection (ix) of
this Section 7(c), in the course of their review and discussion
of the contents of the Registration Statement and the Prospectus
with certain officers and employees of the Company, nothing has
come to their attention that causes them to believe that, as of
its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related
schedules and other financial data therein, as to which such
counsel need make no statement) 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 that, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules and other financial data therein, as to which such
counsel need make no statement) contained an untrue statement of
a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading or that, as of such
Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial
data therein, as to which such counsel need make no statement)
contains an untrue statement of a material fact or omits to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit
to the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in the
Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required;
13
(d) On the date of the Pricing Agreement for such Designated
Securities and at each Time of Delivery for such Designated
Securities, the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
shall have furnished to the Representatives a letter, dated the date
of the Pricing Agreement, and a letter dated such Time of Delivery,
respectively (a draft of the letter in substantially the form to be
delivered on the date of the Pricing Agreement for such Designated
Securities is attached as Annex II hereto, which letter shall be
reasonably satisfactory to the Underwriters), and with respect to such
letter dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its Significant
Subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any 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 (ii) since the respective dates as of which
information is given in the Prospectus there shall not have been any
change in the capital stock of the Company (other than pursuant to (i)
the Company's employee stock purchase plans existing on the date
hereof, or (ii) the exercise of certain employee stock options
existing on the date hereof), or, except for borrowings under the
Company's existing revolving credit facility, any increase, on a
consolidated basis, in the long-term debt of the Company and its
subsidiaries or any change, or any development involving a prospective
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, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the
Prospectus;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities no downgrading shall have occurred in the rating
accorded the Company's debt securities or the Company's financial
strength or claims paying ability by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and on or
after the date of the Pricing Agreement relating to the Designated
Securities no 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 or the Company's
financial strength or claims paying ability;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by
14
either Federal or New York State authorities; (iv) any material
adverse change in the financial markets in the United States or the
international financial markets, any outbreak or escalation of
hostilities or other calamity or crisis or any change or development
involving a prospective change in national or international political,
financial or economic conditions, if the effect of any such event
specified in this clause (iv) in the judgment of the Representatives
makes it impracticable or inadvisable to market the Designated
Securities or to enforce contracts for the sale of the Designated
Securities; or (v) a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United
States.
(h) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses;
and
(i) The Company shall have furnished or caused to be furnished to
the Representatives at each Time of Delivery for the Designated
Securities certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery,
as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to
the matters set forth in subsections (a) and (e) of this Section and
as to such other matters as the Representatives may reasonably
request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
Prospectus and any other prospectus relating to the Securities, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim 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
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement, the Prospectus and any other prospectus relating to the Securities,
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter of Designated
Securities through the Representatives expressly for use in the Prospectus
relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, the Prospectus and any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or
15
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, the Prospectus and any other prospectus relating to the Securities,
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include any
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated Securities to which
such loss, claim, damage or liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company one hand and the Underwriters of the
Designated Securities on the other in connection with the statements or
16
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by such Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, 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 subsection (e) were 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 account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include 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 subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such 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 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Securities or Optional Securities which it has agreed to purchase under the
Pricing Agreement relating to such Securities, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Securities on the terms contained herein. If within thirty-six hours after
such default by any Underwriter the Representatives do not arrange for the
purchase of such Firm Securities or Optional Securities, as the case may be,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the Company
that they have so arranged for the purchase of such Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Securities, the
17
Representatives or the Company shall have the right to postpone a Time of
Delivery for such Securities for a period of not more than seven days, in order
to effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate number of such Securities which remains
unpurchased does not exceed one-eleventh of the aggregate number of the Firm
Securities or Optional Securities, as the case may be, to be purchased at the
respective Time of Delivery, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of Firm Securities or
Optional Securities, as the case may be, which such Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated Securities and,
in addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Firm Securities or Optional Securities, as the
case may be, which such Underwriter agreed to purchase under such Pricing
Agreement) of the Firm Securities or Optional Securities, as the case may be, of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate number of Firm Securities or Optional
Securities, as the case may be, which remains unpurchased exceeds one-eleventh
of the aggregate number of the Firm Securities or Optional Securities, as the
case may be, to be purchased at the respective Time of Delivery, as referred to
in subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Firm Securities or Optional Securities, as the case may be, of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating to
such Firm Securities or the Over-allotment Option relating to such Optional
Securities, as the case may be, shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in Section
6 hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any
18
officer or director or controlling person of the Company and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, the Company shall not then be under any liability
to any Underwriter with respect to the Firm Securities or Optional Securities
with respect to which such Pricing Agreement shall have been terminated except
as provided in Sections 6 and 8 hereof; but, if for any other reason, Designated
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Securities, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Securities except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters and the Company to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
19
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
20
If the foregoing is in accordance with your understanding,
please sign and return to us eight counterparts hereof.
Very truly yours,
▇▇▇▇▇▇ Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice-Chairman
CONFIRMED AND ACCEPTED as of the date hereof:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------------
Managing Director
21
ANNEX I
Pricing Agreement
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
As Representatives of the
Underwriter named in Schedule I hereto,
World Financial Center - North Tower,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
February 20, 2003
Ladies and Gentlemen:
▇▇▇▇▇▇ Corporation, a Virginia corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated February 20, 2003 (the "Underwriting Agreement"),
between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, to issue and sell to the Underwriter named in Schedule I
hereto (the "Underwriter") the Securities specified in Schedule II hereto (the
"Designated Securities," consisting only of Firm 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 Representatives 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 the Representatives referred to in such Section 12
are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, 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 the Underwriter, and the Underwriter agrees to purchase
from the Company, at the time and place and at the purchase price to the
Underwriter set forth in Schedule II hereto, the aggregate
principal amount of Firm Securities set forth opposite the name of the
Underwriter in Schedule I hereto.
During the period beginning from the date of this Pricing
Agreement and continuing to the Time of Delivery, the Company will not, the
Company will not, without your prior written consent, directly or indirectly,
issue, sell, offer or contract to sell, grant any option for the sale of, or
otherwise dispose of, any debt securities.
2
If the foregoing is in accordance with your understanding,
please sign and return to us eight 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 the Underwriter and the Company.
Very truly yours,
▇▇▇▇▇▇ Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice-Chairman
CONFIRMED AND ACCEPTED as of the date hereof:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------------
Managing Director
3
SCHEDULE I
Aggregate Principal Amount at Maturity of Securities
Underwriter to be Purchased
----------- ----------------------------------------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ $200,000,000
Incorporated
Total ----------------------------------------------------
$200,000,000
4
SCHEDULE II - DESIGNATED SECURITIES
▇▇▇▇▇▇ CORPORATION
$200,000,000
6.8% Senior Notes due 2013
The Designated Securities shall have the following terms in addition to those
set forth in the Prospectus.
Title: 6.8% Senior Notes due 2013
Rank: Senior Debt
Ratings: ▇▇▇▇▇'▇: Baa3(Stable); S&P: BBB-(Negative)
Aggregate Principal amount: $200,000,000
Denominations: $1,000 and integral multiples thereof
Interest Rate: 6.8% per annum (30/360)
Interest Payment Dates: February 15th and August 15th, commencing August 15, 2003
Stated Maturity Date: February 15, 2013
Redemption Provisions: None
Sinking Fund Provisions: None
Initial Public Offering Price: 99.66% of the principal amount, plus accrued interest, if any, from
February 25, 2003
Purchase Price: 99.01% (Underwriting Discount: 0.65%)
Total Proceeds to Issuer: $198,020,000
Settlement Date: February 25, 2003
5
ANNEX II
[Attach Form of Comfort Letter from KPMG]
