SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) N/A
Heilig-Meyers Company
(Exact name of registrant as specified in its charter)
Virginia
(State or other jurisdiction of incorporation)
1-8484 54-0558861
(Commission file number) (IRS Employer Identification No.)
2235 Staples Mill Road, Richmond, Virginia 23230
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (804) 359-9171
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
On July 31, 1997, Heilig-Meyers Company ("Heilig-Meyers") and MacSaver
Financial Services, Inc. ("MacSaver") entered into a Pricing Agreement with
Goldman, Sachs & Co., on behalf of itself and NationsBanc Capital Markets, Inc.
and Salomon Brothers Inc, which incorporated by reference a related Underwriting
Agreement, dated July 31, 1997, for the public offering by MacSaver of $175
million aggregate principal amount of 7.60% Notes due August 1, 2007, guaranteed
as to payment of principal and interest by Heilig-Meyers (the "7.60% Notes").
The 7.60% Notes were issued pursuant to an Indenture dated as of August 1, 1996
among Heilig-Meyers, MacSaver and First Union National Bank, formerly known as
First Union National Bank of Virginia, as Trustee, and an Officers' Certificate
dated as of August 5, 1997.
Item 7. Financial Statements and Exhibits
(c) Exhibits
The following exhibits are filed as a part of this report.
1(a) Underwriting Agreement dated July 31, 1997, among
Heilig-Meyers and MacSaver.
1(b) Pricing Agreement dated July 31, 1997 among Heilig-
Meyers, MacSaver and Goldman, Sachs & Co., on
behalf of itself and NationsBanc Capital Markets,
Inc. and Salomon Brothers Inc.
4(a) Indenture dated as of August 1, 1996 among
Heilig-Meyers, MacSaver and First Union National
Bank, formerly known as First Union National Bank of
Virginia, as Trustee, filed with the Commission as
Exhibit 4(a) to Heilig-Meyers' Current Report on Form
8-K filed September 11, 1996, is expressly
incorporated herein by this reference.
4(b) Officers' Certificate dated August 5, 1997,
relating to the 7.60% Notes.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of
1934, the registrant has caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
HEILIG-MEYERS COMPANY
Date: August 5, 1997 By: /s/ Roy B. Goodman
--------------------
Roy B. Goodman
Senior Vice President and
Chief Financial Officer
<PAGE>
Exhibit Index
Exhibit
No. Description
1(a) Underwriting Agreement dated July 31, 1997, among Heilig-
Meyers and MacSaver.
1(b) Pricing Agreement dated July 31, 1997, among Heilig-
Meyers, MacSaver and Goldman, Sachs & Co., on behalf of
itself and NationsBanc Capital Markets, Inc. and Salomon
Brothers Inc.
4(b) Officers' Certificate dated August 5, 1997, relating to
the 7.60% Notes.
Exhibit 1(a)
MACSAVER FINANCIAL SERVICES, INC.
Debt Securities
unconditionally guaranteed as to the payment of principal, premium,
if any, and interest by
Heilig-Meyers Company
Underwriting Agreement
July 31, 1997
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time MacSaver Financial Services, Inc., a Delaware
corporation (the "Company"), and Heilig-Meyers Company, a Virginia corporation
(the "Guarantor"), propose to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, the Company proposes to issue and sell to
the firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Debt
Securities") specified in Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, the "Designated Debt Securities"). Such Debt Securities,
including the Designated Debt Securities, will be unconditionally guaranteed as
to the payment of principal, premium, if any, and interest (the "Guarantees") by
the Guarantor. The Debt Securities and the Guarantees are hereinafter
collectively called the "Securities", and the Designated Debt Securities and the
Guarantees relating thereto ("Designated Guarantees") are hereinafter
collectively called the ("Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
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 an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company or the Guarantor to sell
any of the Securities or as an obligation of any of the Underwriters to purchase
the Securities. The obligation of each of the Company and the Guarantor to issue
and sell any of the Securities, on the one hand, and the obligation of any of
the Underwriters to purchase any of the Securities, on the other hand, 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 the Designated Debt Securities comprising a part of such Designated
Securities, the initial public offering price of such Designated Securities, 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 and the principal amount of such Designated Debt Securities
to be purchased by each Underwriter 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
Indenture and 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. Each of the Company and the Guarantor, jointly and
severally, represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Two registration statements on Form S-3 (File Nos.
333-07753 and 333-29929) (the "Initial Registration Statements") in
respect of the Securities have been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration
Statements and any post-effective amendment thereto, each in the form
heretofore delivered or to be delivered to the Representatives and,
excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus contained
therein, to the Representatives for each of the other Underwriters,
have been declared effective by the Commission in such form; 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 Initial
Registration Statements 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 Initial Registration Statements,
any post-effective amendment thereto or the 462(b) Registration
Statements, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statements or filed
with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statements and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statements at the time such part of the Initial
Registration Statements became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective but excluding Form T-1, each as amended at the time such part
of the registration statement became effective, are hereinafter
collectively called the "Registration Statement"; the prospectus
relating to the Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or prior
to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the
Company or the Guarantor filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in the form in which
it is filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) 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 and the Guarantor by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(c) 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 Trust Indenture Act of 1939, as amended
(the "Trust Indenture 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 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 and the
Guarantor by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Neither the Company, the Guarantor nor any of their
subsidiaries 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 or long-term debt of the Company,
the Guarantor or any of their subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company,
the Guarantor or any of their subsidiaries, otherwise than as set forth
or contemplated in the Prospectus;
(e) The Company been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware and the Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Virginia, and each has power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus, and each 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 leases
properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of failure to be so qualified in any such jurisdiction; and each
subsidiary of the Company or the Guarantor has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation 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 it 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 failure to be so qualified in any such jurisdiction;
(f) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; the Guarantor has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Guarantor have been duly and validly authorized and issued and
are fully paid and non-assessable and conform to the description of the
Securities contained in the Prospectus; and all of the issued shares of
capital stock of each subsidiary of the Company or the Guarantor 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 or the Guarantor, as the case may
be, free and clear of all liens, encumbrances, equities or claims;
(g) The Securities have been duly authorized, and, when
Designated Debt Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities and the Indenture, against payment of the consideration
therefor in accordance herewith, such Designated Securities will have
been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company (in the
case of Designated Debt Securities) and the Guarantor (in the case of
Designated Guarantees) entitled to the benefits provided by the
Indenture, which will be substantially in the form filed as an exhibit
to the Registration Statement; the Indenture has been duly authorized
and duly qualified under the Trust Indenture Act and, at the Time of
Delivery for such Designated Securities (as defined in Section 4
hereof), the Indenture will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles; and the Indenture conforms, and the
Designated Securities will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to
such Designated Securities;
(h) The issue and sale of the Securities and the compliance by
the Company and the Guarantor with all of the provisions of the
Securities, the Indenture, this Agreement and any Pricing Agreement,
and the consummation of the transactions herein and therein
contemplated 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 or the Guarantor or any of
their subsidiaries is a party or by which the Company or the Guarantor
or any of their subsidiaries is bound or to which any of the property
or assets of the Company or the Guarantor is subject, nor will such
action result in any violation of any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, the Guarantor or any of their
subsidiaries or any of their properties, which breach, violation or
default would have a material adverse effect on the financial position,
stockholders' equity, or results of operations of the Guarantor and its
subsidiaries taken as a whole, or upon the issue and sale of the
Securities and the compliance by the Company and the Guarantor with all
of the provisions of the Securities, the Indenture, this Agreement and
any Pricing Agreement, and the consummation of the transactions herein
and therein contemplated, nor will such action result in any violation
of the provisions of the Articles of Incorporation or the By-laws of
the Company or the Guarantor; 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
Securities or the consummation by the Company or the Guarantor of the
transactions contemplated by this Agreement or any Pricing Agreement or
the Indenture, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Act and the Trust Indenture 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 Securities
by the Underwriters;
(i) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Debt Securities" or
"Description of Notes", insofar as they purport to constitute a summary
of the terms of the Securities, and under the caption "United States
Taxation", insofar as they are or refer to statements of United States
law or legal conclusions relating thereto, are accurate, complete and
fair in all material respects;
(j) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company, the
Guarantor or any of their subsidiaries is a party or of which any
property of the Company, the Guarantor or any of their subsidiaries is
the subject which the Company or the Guarantor has reasonable cause to
believe would either individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company,
the Guarantor or their subsidiaries taken as a whole; and, to the best
of the Company's and the Guarantor's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(k) Neither the Company nor the Guarantor is or, after giving
effect to the offering and sale of the Securities, will be an
"investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(l) None of the Company, the Guarantor or any of their
affiliates does business with the government of Cuba or with any
person or affiliate located in Cuba within the meaning of the
U.S. Treasury Department's Cuban Assets Control Regulations, the
Cuban Liberty and Democratic Solidarity ("LIBERTAD") Act of 1996 or
Section 517.075, Florida Statutes; and
(m) Deloitte & Touche LLP, who have certified certain
financial statements of the Guarantor and its subsidiaries (including
the Company), are independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated 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 and the Guarantor
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 or certified or official bank check or checks, payable to the order of
the Company in the funds specified in such Pricing Agreement, 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 "Time of
Delivery" for such Securities.
5. Each of the Company and the Guarantor, jointly and
severally, agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented 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 as amended or supplemented after the date of
the Pricing Agreement relating to such Securities and prior to the Time
of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery 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 or the Guarantor with the Commission pursuant to Section
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 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, to promptly 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
neither the Company nor the Guarantor shall be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus as
amended or supplemented 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 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, the Exchange Act or the Trust Indenture 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 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 securityholders 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 Guarantor 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 Guarantor, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company or the Guarantor, or any
guarantees by the Company or the Guarantor of debt securities of
others, which mature more than one year after such Time of Delivery and
which are substantially similar to such Designated Debt Securities or
Designated Guarantees, without the prior written consent of the
Representatives; and
(f) 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 this Agreement, and the Company shall at the
time of filing either pay to 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.
6. Each of the Company and the Guarantor, jointly and severally,
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
their 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 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 Indenture, any Blue Sky and Legal
Investment Memoranda, closing documents (including any 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 and Legal Investment Surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to, and
the fees and disbursements of counsel for the Underwriters in connection with,
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (vi) the cost of preparing the
Securities; (vii) the fees and expenses of any Trustee and any agent of any
Trustee and the fees and disbursements of counsel for any Trustee in connection
with any Indenture and the Securities; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. 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 and the
Guarantor in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of the Time of Delivery for such
Designated Securities, true and correct, the condition that the Company and the
Guarantor shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable 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 the Rule 462(b) Registration Statement shall have
become effective by 10:00 p.m., Washington, D.C. time on the date of
this 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 opinion or opinions, (a draft of each such opinion
is attached as Annex III(a) hereto) dated the Time of Delivery for such
Designated Securities, with respect to the incorporation of the
Company, the validity of the Designated Securities being delivered at
such Time of Delivery, the Registration Statement, the Prospectus, and
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;
(c) McGuire, Woods, Battle & Boothe, L.L.P., counsel for the
Company and the Guarantor, or other counsel for the Company and the
Guarantor satisfactory to the Representatives shall have furnished to
the Representatives their written opinion (a draft of each such opinion
is attached as Annex III(b) hereto), dated the Time of Delivery for
such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) Each of the Company and the Guarantor has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) The Guarantor has an authorized capitalization
as set forth in the Prospectus as amended or supplemented and
all of the issued shares of capital stock of the Company and
the Guarantor have been duly and validly authorized and issued
and are fully paid and non-assessable;
(iii) To the best of such counsel's
knowledge and other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the
Company, the Guarantor or any of their subsidiaries is a party
or of which any property of the Company, the Guarantor or any
of their subsidiaries is the subject which could be reasonably
expected to individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the
Company, the Guarantor or their subsidiaries taken as a whole;
and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iv) This Agreement and the Pricing
Agreement with respect to the Designated Securities have been
duly authorized, executed and delivered by the Company and the
Guarantor;
(v) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the
Company (in the case of the Designated Debt Securities) and
the Guarantor (in the case of the Designated Guarantees)
entitled to the benefits provided by the Indenture;
(vi) The Indenture has been duly authorized,
executed and delivered by the Company and the Guarantor and
(assuming the Indenture has been duly authorized, executed and
delivered by the Trustee) constitutes a valid and legally
binding obligation of the Company and the Guarantor,
enforceable against the Company and the Guarantor in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture has
been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Designated
Securities and the compliance by the Company and the Guarantor
with all of the provisions of the Designated Securities, the
Indenture, this Agreement and the Pricing Agreement with
respect to the Designated Securities and the consummation of
the transactions herein and therein contemplated 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 known to such counsel to which the
Company, the Guarantor or any of their subsidiaries is a party
or by which the Company, the Guarantor or any of their
subsidiaries is bound or to which any of the property or
assets of the Company, the Guarantor or any of their
subsidiaries is subject, nor will such actions result in any
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, the Guarantor or
any of their subsidiaries or any of their properties, which
breach, violation or default would have a material adverse
effect on the financial position, stockholders' equity, or
results of operations of the Guarantor and its subsidiaries
taken as a whole, or upon the issue and sale of the Designated
Securities and the compliance by the Company and the Guarantor
with all of the provisions of the Designated Securities, the
Indenture, the Underwriting Agreement and any Pricing
Agreement, and the consummation of the transactions therein
contemplated, nor will such action result in any violation of
the provisions of the Articles of Incorporation or the By-laws
of the Company or the Guarantor;
(viii) No consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale
of the Designated Securities or the consummation by the
Company or the Guarantor of the transactions contemplated by
this Agreement or such Pricing Agreement or the Indenture,
except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
orders, 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 as amended or supplemented under the captions
"Description of Debt Securities" or "Description of Notes",
insofar as they purport to constitute a summary of the terms
of the Securities, and under the caption "United States
Taxation", insofar as they are or refer to statements of
United States law or legal conclusions relating thereto, are
accurate, complete and fair in all material respects;
(x) Neither the Company nor the
Guarantor is an "investment company" or an entity
"controlled" by an "investment company", as such terms are
defined in the Investment Company Act;
(xi) The documents incorporated by reference
in the Prospectus as amended or supplemented (other than the
financial statements, related schedules and financial data
included 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; and they have no reason to believe
that any of such documents, when they became effective or were
so filed, as the case may be, contained, in the case of a
registration statement 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, or, in the case of
other documents which were filed under the Act or 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 when such documents were so filed,
not misleading; and
(xii) The Registration Statement and the
Prospectus as amended or supplemented and any further
amendments and supplements thereto made by the Company or the
Guarantor prior to the Time of Delivery for the Designated
Securities (other than the financial statements, related
schedules and financial data included 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
Trust Indenture Act and the rules and regulations thereunder;
although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus, except to the
extent indicated in the opinion in subsection (ix) of this
Section 7(c), they have no reason to believe that, as of its
effective date, the Registration Statement or any further
amendment thereto made by the Company or the Guarantor prior
to the Time of Delivery (other than the financial statements,
related schedules and financial data included therein, as to
which such counsel need express no opinion) 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 as amended or supplemented or any further
amendment or supplement thereto made by the Company or the
Guarantor prior to the Time of Delivery (other than the
financial statements, related schedules and financial data
included therein, as to which such counsel need express no
opinion) 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 the Time
of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company or the Guarantor
prior to the Time of Delivery (other than the financial
statements, related schedules and financial data included
therein, as to which such counsel need express no opinion)
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
as amended or supplemented or required to be described in the
Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference
or described as required;
(d) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at the Time of Delivery
for such Designated Securities, the independent accountants of the
Company and the Guarantor who have certified the financial statements
of the Guarantor and its subsidiaries (including the Company) included
or incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated the effective date of
the Registration Statement or the date of the most recent report filed
with the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated such Time of
Delivery, respectively, 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 (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex II(a) hereto and a
draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of
each Time of Delivery is attached as Annex II(b) hereto);
(e) (i) None of the Company, the Guarantor or any of their
subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities 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 as amended prior to the date of the
Pricing Agreement relating to the Designated Securities, and (ii) since
the respective dates as of which information is given in the Prospectus
as amended prior to the date of the Pricing Agreement relating to the
Designated Securities there shall not have been any change in the
capital stock or long-term debt of the Company, the Guarantor or any of
their subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company, the Guarantor or any of its subsidiaries, otherwise than
as set forth or contemplated in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the Designated Securities,
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 as first amended or
supplemented relating to the Designated Securities;
(f) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or (if the Guarantor has
debt securities or preferred stock that is rated) the Guarantor' debt
securities or preferred stock 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 (ii) 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
or the Guarantor's debt securities or preferred stock;
(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 or the Guarantor's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York
or Virginia State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this Clause (iv) in the judgment of the
Representatives makes 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 as amended or
supplemented relating to the Designated Securities;
(h) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(i) The Company and the Guarantor shall have furnished or
caused to be furnished to the Representatives at the Time of Delivery
for the Designated Securities a certificate or certificates of officers
of the Company and the Guarantor satisfactory to the Representatives as
to the accuracy of the representations and warranties of the Company
and the Guarantor herein at and as of such Time of Delivery, as to the
performance by the Company and the Guarantor of all of their respective
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) Each of the Company and the Guarantor, jointly and severally,
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 any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented 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 neither the Company nor the Guarantor shall 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 any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented 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 as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Guarantor against any losses, claims, damages or liabilities to which the
Company or the Guarantor 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 any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented 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, 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 any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented 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 or Guarantor by
such Underwriter through the Representatives expressly for use therein; and will
reimburse the Company and the Guarantor for any legal or other expenses
reasonably incurred by the Company or the Guarantor 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)
or (b) 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 a 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) or (b) 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 and the Guarantor 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 (c) 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 and the
Guarantor on the one hand and the Underwriters of the Designated Securities on
the other in connection with the statements or 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 and the Guarantor 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 and the
Guarantor 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 and the Guarantor 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, the Guarantor and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) 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 and the Guarantor under this Section
8 shall be in addition to any liability which the Company or the Guarantor 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 or the Guarantor and to each person, if any, who controls the Company or
the Guarantor within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated 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 Designated Securities, 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 Designated 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 Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated 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 as amended or
supplemented, 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
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities 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
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities 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
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, 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 Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Guarantor, except for the expenses to be borne
by the Company, the Guarantor 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, the Guarantor 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, the
Company or the Guarantor, or any officer or director or controlling person of
the Company or the Guarantor, and shall survive delivery of and payment for the
Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, neither the Company nor the Guarantor shall then be under any liability
to any Underwriter with respect to the Designated Securities covered by such
Pricing Agreement 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 and the Guarantor as provided herein, the Company and the Guarantor,
jointly and severally, 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 neither the Company nor the
Guarantor shall then be under any 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 or the Guarantor shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company or
the Guarantor, as applicable, set forth in the Registration Statement:
Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) 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 and the Guarantor 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, the Company, the Guarantor
and, to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company, the Guarantor and each person who controls the
Company, the Guarantor 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, "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.
<PAGE>
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.
Very truly yours,
MacSaver Financial Services, Inc.
By: /s/ DOSSI V. BHAVNAGRI
------------------------------
Name: Dossi V. Bhavnagri
Title: Vice President
Heilig-Meyers Company
By: /s/ PAIGE H. WILSON
------------------------------
Name: Paige H. Wilson
Title: Vice President, Treasurer and
Secretary
<PAGE>
ANNEX I
Pricing Agreement
[Names of Representatives]
As Representatives of the several
Underwriters named in Schedule I hereto
[Address of Representatives]
, 199_
Ladies and Gentlemen:
MacSaver Financial Services, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated _____ __, 1996 (the "Underwriting Agreement"),
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Notes specified in Schedule II hereto (the "Notes"). The
Notes will be unconditionally guaranteed as to the payment of principal,
premium, if any, and interest (the "Guarantees") by Heilig-Meyers Company, a
Virginia corporation (the "Guarantor"). The Notes and the Guarantees are
hereinafter collectively called the "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 Notes and the
Guarantees (together, 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 at the end of 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 and the
Guarantor agree to issue and the Company agrees to 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.
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us ten 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, shall constitute a binding agreement among each of the Underwriters,
the Company and the Guarantor. 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 and the Guarantor for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
MacSaver Financial Services, Inc.
By:
------------------------
Name:
Title:
Heilig-Meyers Company
By:
------------------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
NationsBanc Capital Markets, Inc.
Salomon Brothers Inc
By: Goldman, Sachs & Co.
By:
--------------------------------------
(Authorized Officer and Attorney-in-fact)
On behalf of each of the Underwriters
<PAGE>
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
[Names of Representatives] $
[Names of other Underwriters]
Total $
<PAGE>
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
Aggregate principal amount:
[$]
Price to Public:
% of the principal amount of the Designated
Securities, plus accrued interest[, if any,]
from to [and
accrued amortization[, if any,] from
to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated
Securities, plus accrued interest from to [and
accrued amortization[, if any,] from to ]
Form of Designated Securities:
[Definitive form to be made available for
checking and packaging at least twenty-four
hours prior to the Time of Delivery at the
office of [The Depository Trust Company or
its designated custodian] [the Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
Specified funds for payment of purchase price:
Federal (same-day) funds
Time of Delivery:
a.m. (New York City time), , 19
Indenture:
Indenture dated , 19 , among the Company,
the Guarantor and , as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing ....................., 19..]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following
redemption prices (expressed in percentages
of principal amount). If [redeemed on or
before , %, and if] redeemed
during the 12-month period beginning ,
Redemption
Year Price
and thereafter at 100% of their
principal amount, together in each
case with accrued interest to the
redemption date.]
[on any interest payment date falling on or after , , at the
election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of
redemption.]]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to
the benefit of a sinking fund to retire
[$ ] principal amount of Designated
Securities on in each of the years through
at 100% of their principal amount plus
accrued interest[, together with
[cumulative] [noncumulative] redemptions at
the option of the Company to retire an
additional [$ ] principal amount of
Designated Securities in the years
through at 100% of their
principal amount plus accrued interest.]
[If Designated Securities are extendable debt
securities, insert--
Extendable provisions:
Designated Securities are repayable on , [insert date and
years], at the option of the holder, at their principal amount with
accrued interest. The initial annual interest rate will be %,
and thereafter the annual interest rate will be adjusted on , and to
a rate not less than % of the effective annual interest rate
on U.S. Treasury obligations with -year maturities as of the
[insert date 15 days prior to maturity date] prior to such [insert
maturity date].]
[If Designated Securities are floating rate debt securities, insert--
Floating rate provisions:
Initial annual interest rate will be %
through [and thereafter will be
adjusted [monthly] [on each
, , and ] [to an
annual rate of % above the average rate
for -year
[month][securities][certificates of deposit]
issued by
and [insert names of banks].]
[and the annual interest rate [thereafter]
[from
through ] will be the interest yield equivalent of the weekly
average per annum market discount rate for -month Treasury bills plus %
of Interest Differential (the excess, if any, of (i) the then current
weekly average per annum secondary market yield for -month certificates
of deposit over (ii) the then current interest yield equivalent of the
weekly average per annum market discount rate for -month Treasury
bills); [from and thereafter the rate will be the then
current interest yield equivalent plus % of Interest
Differential].]
Defeasance provisions:
Closing location for delivery of Designated
Securities:
Additional Closing Conditions:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms:]
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public
accountants with respect to the Guarantor and its subsidiaries
(including the Company) within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information
examined) by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related published rules
and regulations thereunder; and, if applicable, they have made a review
in accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Guarantor and the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been separately furnished to the
representative or representatives of the Underwriters (the
"Representatives") such term to include an Underwriter or Underwriters
who act without any firm being designated as its or their
representatives;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Guarantor's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been separately
furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of the Guarantor and the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form
in all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Guarantor and the Company for the five most recent fiscal years
included in the Prospectus and included or incorporated by reference in
Item 6 of the Guarantor's Annual Report on Form 10-K for the most
recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial
statements for five such fiscal years which were included or
incorporated by reference in the Guarantor's Annual Reports on Form
10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Guarantor, the Company and their
subsidiaries, inspection of the minute books of the Guarantor, the
Company and their subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Guarantor, the Company and
their subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Guarantor's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made
to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus or included in the
Guarantor's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement
data and balance sheet items included in the Prospectus do not
agree with the corresponding items in the unaudited
consolidated financial statements from which such data and
items were derived, and any such unaudited data and items were
not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Guarantor's Annual Report on Form 10-K for
the most recent fiscal year;
(C) the unaudited financial statements which
were not included in the Prospectus but from which were
derived the unaudited condensed financial statements referred
to in clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred to
in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements
included or incorporated by reference in the Guarantor's
Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated
condensed financial statements included or incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
(E) as of a specified date not more than
five days prior to the date of such letter, there have been
any changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or
any increase in the consolidated long-term debt of the
Guarantor, the Company and their subsidiaries, or any
decreases in consolidated net current assets or stockholders'
equity or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance
sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the
latest financial statements included or incorporated by
reference in the Prospectus to the specified date referred to
in Clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts
of consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records
of the Guarantor, the Company and their subsidiaries, which appear in
the Prospectus (excluding documents incorporated by reference), or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Guarantor, the Company and their
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
Exhibit 1(b)
Pricing Agreement
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
NationsBanc Capital Markets, Inc.
NationsBank Corp Center
7th Floor
100 North Tryon Street
Charlotte, North Carolina 28255
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
July 31, 1997
Ladies and Gentlemen:
MacSaver Financial Services, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated July 31, 1997 (the "Underwriting Agreement"),
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Notes specified in Schedule II hereto (the "Notes"). The
Notes will be unconditionally guaranteed as to the payment of principal,
premium, if any, and interest (the "Guarantees") by Heilig-Meyers Company, a
Virginia corporation (the "Guarantor"). The Notes and the Guarantees are
hereinafter collectively called the "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 Notes and the
Guarantees (together, 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 at the end of 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 and the
Guarantor agree to issue and the Company agrees to 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.
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us eight 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, shall constitute a binding agreement among each of the Underwriters,
the Company and the Guarantor. 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 and the Guarantor for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
MacSaver Financial Services, Inc.
By: /s/ DOSSI V. BHAVNAGRI
---------------------------------
Name: Dossi V. Bhavnagri
Title: Vice President
Heilig-Meyers Company
By: /s/ PAIGE H. WILSON
---------------------------------
Name: Paige H. Wilson
Title: Vice President, Treasurer and
Secretary
Accepted as of the date hereof:
Goldman, Sachs & Co.
NationsBanc Capital Markets, Inc.
Salomon Brothers Inc
By: Goldman, Sachs & Co.
By: /s/ GOLDMAN, SACHS & CO.
............................................
(Authorized Officer and Attorney-in-fact)
On behalf of each of the Underwriters
<PAGE>
===================================================================
SCHEDULE I
===================================================================
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- ---------
Goldman, Sachs & Co. $ 87,500,000
NationsBanc Capital Markets, Inc., $ 43,750,000
Salomon Brothers Inc $ 43,750,000
Total $175,000,000
==============
<PAGE>
SCHEDULE II
TERMS OF DESIGNATED SECURITIES
7.60% NOTES DUE AUGUST 1, 2007
Title of Designated Securities:
7.60% Notes due August 1, 2007
Aggregate principal amount:
$175,000,000
Price to Public:
99.867% of the principal amount of the Designated Securities, plus
accrued interest from August 1, 1997 to August 5, 1997.
Purchase Price by Underwriters:
98.867% of the principal amount of the Designated Securities, plus
accrued interest from August 1, 1997 to August 5, 1997.
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 checking 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:
DTC, Same day funds
Time of Delivery:
10:00 A.M., New York City time, on August 5, 1997
Indenture:
Indenture dated as of August 1, 1996, among the Company, the
Guarantor and First Union National Bank (Formerly First Union National
Bank of Virginia), as Trustee
Maturity:
August 1, 2007
Interest Rate and Interest Period:
7.60% from August 1, 1997, or from the most recent Interest Payment Date
to which interest has been paid or provided
Interest Payment Dates:
August 1 and February 1, commencing February 1, 1998
Redemption Provisions:
No provisions for redemption
Sinking Fund Provisions:
No sinking fund provisions
Closing location for delivery of Designated Securities:
The offices of Sullivan & Cromwell, 125 Broad Street, New York, New York
10004
Names and addresses of Underwriters:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
NationsBanc Capital Markets, Inc.
NationsBank Corp Center
7th Floor
100 North Tryon Street
Charlotte, North Carolina 28255
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Exhibit 4(b)
MACSAVER FINANCIAL SERVICES, INC.
7.60% Notes Due August 1, 2007
Officers' Certificate
Pursuant to the Indenture dated as of August 1, 1996 (the "Indenture"),
among MacSaver Financial Services, Inc., a Delaware corporation, as Issuer (the
"Company"), Heilig-Meyers Company, a Virginia corporation, as Guarantor (the
"Guarantor"), and First Union National Bank, formerly First Union National Bank
of Virginia, as Trustee (the "Trustee"), and resolutions duly adopted by the
Company's Board of Directors on June 28, 1996 and June 19, 1997 and the
Guarantor's Board of Directors on April 3, 1996, February 5, 1997 and April 2,
1997, this Officers' Certificate is being delivered in accordance with Section
102 of the Indenture to the Trustee to establish the terms of a series of
Securities in accordance with Section 301 of the Indenture and to establish the
forms of the Securities of such series in accordance with Section 201 of the
Indenture.
Capitalized terms use herein and not otherwise defined herein shall
have the meanings assigned to them in the Indenture.
All conditions precedent provided for in the Indenture relating to the
establishment of a series of Securities and to the authentication and delivery
of the Securities have been complied with. The Company is authorized to issue up
to $175,000,000 in aggregate principal amount of the Securities (except as noted
in Sections 303, 304, 305, 306, 905 or 1107 of the Indenture).
1
<PAGE>
A. Establishment of Series pursuant to Section 301 of
Indenture.
There is hereby established pursuant to Section 301 of the Indenture a
series of Securities which shall have the following terms (the "Notes"):
(1) The series of Securities hereby being authorized
shall bear the title "7.60% Notes Due August 1, 2007."
(2) The Notes shall be limited to $175,000,000 in aggregate
principal amount (except as noted in Sections 303, 304, 305, 306, 905 or 1107 of
the Indenture).
(3) The Notes shall be issued as Registered Securities only
and as Book-Entry Securities, initially represented by one permanent global
note. The Depository Trust Company shall be the U.S. Depositary (the
"Depositary") with respect to the Notes. The Notes shall be exchangeable as
provided in the Indenture and in the form of the Note attached as Exhibit A
hereto.
(4) Interest shall be payable to the person in whose name a
Note (or any predecessor Note) is registered at the close of business on the
Regular Record Date (as defined below) next preceding the applicable Interest
Payment Date (as defined below); provided, however, that interest payable at
Maturity shall be payable to the Person to whom principal shall be payable.
(5) The Notes shall mature, and the principal of the
Notes shall be payable on August 1, 2007.
(6) The Notes shall bear interest (computed on the basis of a
360-day year of twelve 30-day months) from August 1, 1997 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, at the rate of 7.60% per annum, until the principal thereof is paid or duly
made available for payment. Interest shall be payable in arrears semi-annually
on February 1 and August 1 of each year, commencing February 1, 1998 (each such
date, an "Interest Payment Date"), to the person in whose name a Note (or any
predecessor Note) is registered at the close of business on the January 15 or
July 15 next preceding such Interest Payment Date (each such date, a "Regular
Record Date"); provided, however, that interest payable at Maturity shall be
payable to the person to whom principal shall be payable.
(7) Principal of, any premium and interest on or any
Additional Amounts with respect to the Notes shall be payable at the office or
agency of the Company to be maintained in the Borough of Manhattan, The City of
New York, initially at First Union National Bank, 40 Broad Street, 5th Floor,
Suite 550, New
2
<PAGE>
York, New York, 10004; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the person
entitled thereto as it appears on the registry books of the Company at the close
of business on the Regular Record Date corresponding to the relevant Interest
Payment Date. Upon the terms, conditions and circumstances provided in the
Indenture and in the form of Note attached as Exhibit A hereto, the transfer of
the Notes will be registrable and Notes will be exchangeable for Notes of any
authorized denominations and of a like tenor at the corporate trust office of a
security registrar selected by the Company, initially First Union National Bank
(the "Security Registrar"), in the Borough of Manhattan, The City of New York.
(8) The Notes shall not be redeemable prior to
Maturity.
(9) The Notes shall not be subject to redemption or purchase
pursuant to any sinking fund or analogous provision or at the option of any
Holder.
(10) The denomination of the Notes shall be $1,000 and
any integral multiple of $1,000 in excess thereof.
(11) The portion of the principal amount of the Notes which
shall be payable upon declaration of acceleration of the Maturity thereof shall
be the principal amount thereof.
(12) Payments of principal of, any premium or interest
on or any Additional Amounts with respect to the Notes shall be
made in United States dollars.
(13) The principal of, any premium or interest on or any
Additional Amounts with respect to the Notes shall not be payable in any
currency other than United States dollars.
(14) The amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to the Notes shall not be
determined with reference to an index, indices, formula or other method.
(15) Sections 402(2) (relating to defeasance) and
402(3)(relating to covenant defeasance) of the Indenture shall be applicable to
the Notes, and no covenants in addition to those specified in Section 402(3)
relating to the Notes shall be subject to covenant defeasance.
(16) The following additional covenants of the
Guarantor shall apply to the Notes:
(a) Leverage Ratio. The Guarantor shall maintain, as
of the last day of each fiscal year of the Guarantor, a
3
<PAGE>
ratio of Consolidated Debt to Consolidated Total Capital of not more
than 0.65 to 1.00.
"Consolidated Debt" means the aggregate amount of all Debt of
the Guarantor, the Company and the other Restricted Subsidiaries
determined on a consolidated basis in accordance with GAAP consistently
applied.
"Debt" means Indebtedness less all accounts payable and
expenses incurred in the ordinary course of business which would
otherwise be included as Indebtedness.
"Consolidated Total Capital" means the sum of Consolidated
Debt plus the aggregate amount of total stockholders' equity of the
Guarantor, the Company and the other Restricted Subsidiaries determined
on a consolidated basis in accordance with GAAP consistently applied.
(b) Fixed Charges Coverage Ratio. The Guarantor shall not, and
shall not permit any Restricted Subsidiary to, issue, assume,
guarantee, incur, create or otherwise become liable in respect of any
Debt unless the ratio of Cash Flow to Fixed Charges, calculated for the
immediately preceding period of four consecutive fiscal quarters, after
giving effect, on a pro forma basis as if incurred at the beginning of
such period, to such Debt and to any other Debt incurred since the end
of such period, would equal or exceed 1.15 to 1.00, except that the
Guarantor or any Restricted Subsidiary may issue, assume, guarantee,
incur, create or otherwise become liable in respect of:
(1) Debt of a Restricted Subsidiary payable to the
Guarantor or to a Restricted Subsidiary;
(2) Debt arising under bank loan facilities existing on the
date of the Indenture or established after such date in accordance with
the Indenture (as such facilities may be increased, extended, renewed
or otherwise amended, supplemented or modified from time to time);
(3) Debt of any corporation or other entity outstanding at the
time such corporation or other entity became a Restricted Subsidiary
(and not incurred in contemplation thereof);
(4) Debt incurred to finance the purchase, construction or
other acquisition of assets if such Debt could be secured by such
assets in accordance with the Indenture;
(5) Attributable Debt otherwise permitted under the
Indenture;
4
<PAGE>
(6) deferred payment obligations representing the unpaid
purchase price of property, assets or services or Debt arising under
any conditional sale or other title retention agreement;
(7) Debt not otherwise permitted by clauses (1) through (6)
above in an aggregate outstanding principal amount not to exceed
$50,000,000; and
(8) Debt incurred in connection with any extension, renewal,
refinancing, replacement or refunding (including successive extensions,
renewals, refinancings, replacements or refundings), in whole or in
part, of any Indebtedness of the Guarantor or any Restricted Subsidiary
(other than Indebtedness incurred pursuant to clause (7) above),
provided that (A) the principal amount of such Debt does not exceed the
sum of the principal amount of the Indebtedness so extended, renewed,
refinanced, replaced or refunded plus all interest accrued thereon and
all related fees and expenses (including, without limitation, any
payments made in connection with the procurement of any required lender
or similar consents), and (B) for purposes of this clause (8), Debt
arising under bank loan facilities may only be refinanced, replaced or
refunded with other bank loan facilities or with Debt that is
subordinated in right of payment to the Notes.
"Cash Flow" means, for any period, the sum of (i) the
consolidated net income of the Guarantor, the Company and the other
Restricted Subsidiaries for such period plus (ii) Lease Expense for
such period plus (iii) Interest Expense for such period plus (iv) the
aggregate amount deducted in determining such consolidated net income
in respect of income taxes, depreciation or amortization.
"Lease Expense" means, for any period, the consolidated lease
expense of the Guarantor, the Company and the other Restricted
Subsidiaries for such period (excluding any portion of lease expense in
respect of Capitalized Leases).
"Interest Expense" means, for any period, the consolidated
interest expense of the Guarantor, the Company and the other Restricted
Subsidiaries for such period (including, without limitation, the
portion of any obligation under Capitalized Leases allocable to
interest expense in accordance with GAAP).
"Fixed Charges" means, for any period, the sum of (i) Lease
Expense for such period plus (ii) Interest Expense for such period.
5
<PAGE>
(17) The Notes are not issuable upon the exercise of
warrants.
B. Establishment of Note Forms pursuant to Section 201 of
the Indenture.
It is hereby established, pursuant to Section 201 of the Indenture,
that the Notes shall be substantially in the form of the permanent global
security attached as Exhibit A hereto.
C. Other Matters.
Attached as Exhibit B hereto are true and correct copies, certified by
the Secretary or an Assistant Secretary of the Company, of resolutions duly
adopted by the Board of Directors of the Company at meetings duly called and
held on June 28, 1996 and June 19, 1997 at each of which a quorum was present
and acting throughout; such resolutions have not been amended, modified, revoked
or rescinded and remain in full force and effect; and such resolutions are the
only resolutions and authorizations adopted by the Company's Board of Directors
or any committee thereof relating to the offering and sale of the Notes.
* * *
6
<PAGE>
Each of the undersigned has read the sections of the Indenture setting
forth the conditions precedent to the authentication of the Notes and the
definitions related thereto contained therein. Each of the undersigned has
examined the resolutions adopted by the Board of Directors of the Company
relating to the authorization, issuance, authentication and delivery of the
Notes and has conducted such additional examinations as each considers
necessary. In the opinion of each of the undersigned, he or she has made such
examination or investigation as is necessary for him or her to express an
informed opinion as to whether or not the conditions precedent to the
establishment and authentication of a series of Securities contained in the
Indenture have been complied with. In the opinion of each of the undersigned,
all such conditions have been complied with.
Dated: August 5, 1997
MACSAVER FINANCIAL SERVICES, INC.
By: /s/ Dossi V. Bhavnagri
-----------------------------------------
Name: Dossi V. Bhavnagri
Title: Vice President
By: /s/ Paige H. Wilson
-----------------------------------------
Name: Paige H. Wilson
Title: Secretary
7
<PAGE>
Exhibit A
THIS SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A U.S. DEPOSITORY OR A
NOMINEE OF A U.S. DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE U.S. DEPOSITORY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF
THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE U.S.
DEPOSITORY TO A NOMINEE OF THE U.S. DEPOSITORY OR BY A NOMINEE OF THE U.S.
DEPOSITORY TO THE U.S. DEPOSITORY OR ANOTHER NOMINEE OF THE U.S. DEPOSITORY) MAY
BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS PERMANENT GLOBAL SECURITY
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON EXCEPT PURSUANT TO THE
PROVISIONS HEREOF.
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
-------------------
MACSAVER FINANCIAL SERVICES, INC.
-------------------
PERMANENT GLOBAL SECURITY
$175,000,000
7.60% Note Due August 1, 2007
-------------------
No. 1 CUSIP No. 556109AC0
<PAGE>
This permanent global Security is one of a duly authorized issue of
securities (herein called the "Securities") of MacSaver Financial Services,
Inc., a Delaware corporation (hereinafter called the "Company," which term
includes any successor corporation under the Indenture hereinafter referred to),
unlimited as to aggregate principal amount, issued and to be issued in one or
more series under an indenture, dated as of August 1, 1996, between the Company,
Heilig-Meyers Company, as Guarantor (the "Guarantor") and First Union National
Bank, formerly known as First Union National Bank of Virginia, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture (as hereinafter defined)), to which indenture and all indentures
supplemental hereto (the indenture as supplemented being herein called the
"Indenture") reference is hereby made for a statement of the respective rights
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This permanent global Security is one of the series of Securities
designated on the face hereof, which series has been issued in an aggregate
initial principal amount of One Hundred Fifty Million United States Dollars.
This permanent global Security represents an aggregate initial principal amount
of One Hundred Fifty Million United States Dollars (as adjusted from time to
time in accordance with the terms and provisions hereof and as set forth on
Schedule A hereto, the "Principal Amount") of the Securities of such series,
with the Interest Payment Dates, date of original issuance, and Maturity
specified herein and bearing interest on said Principal Amount at the interest
rate specified herein.
The Company, for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the Principal Amount hereof on August 1, 2007 and to pay
interest (computed on the basis of a 360-day year of twelve 30-day months)
thereon, from August 1, 1997 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, or, if the date of this
permanent global Security is an Interest Payment Date to which interest has been
paid or duly provided for, then from the date hereof semi-annually in arrears on
February 1 and August 1, in each year commencing February 1, 1998, and at
Maturity, at the rate of 7.60% per annum, until the principal hereof is paid or
duly made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this permanent global Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the January 15 or
July 15 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such Regular Record
Date and shall be paid either to the Person in whose name this permanent global
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date to be fixed by the Trustee for the payment of
such Defaulted Interest, notice whereof shall be given to the Holder of this
permanent global Security not less than 10 days prior to such Special Record
Date, or at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in such Indenture. Notwithstanding the foregoing,
2
<PAGE>
interest payable on this Security at Maturity will be payable to the person to
whom principal is payable.
This permanent global Security is exchangeable for definitive
Registered Securities of this series and of like tenor and of an equal aggregate
principal amount, registered in the name of, and a transfer of this permanent
global Security may be registered to, any Person other than the U.S. Depository
or its nominee, only if (x) the U.S. Depository with respect to the Securities
of this series (the "U.S. Depository") notifies the Company that it is unwilling
or unable to continue as U.S. Depository for this permanent global Security or
if at any time the U.S. Depository ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, as amended, (y) the Company in its
sole discretion determines that this permanent global Security shall be so
exchangeable and executes and delivers to the Trustee a Company Order providing
that this permanent global Security shall be so exchangeable and the transfer
thereof so registrable or (z) there shall have happened and be continuing an
Event of Default or any event which, after notice or lapse of time, or both,
would become an Event of Default with respect to the Securities of the series of
which this permanent global Security is a part. In the event this permanent
global Security is exchangeable pursuant to the preceding sentence, it shall be
exchanged in whole for definitive Registered Securities of this series, of like
tenor and of an equal aggregate principal amount in denominations of $1,000 and
integral multiples of $1,000 in excess thereof, provided that, in the case of
clauses (y) and (z) above, definitive Registered Securities of this series will
be issued in exchange for this permanent global Security only if such definitive
Registered Securities were requested by written notice to the Security Registrar
by or on behalf of a Person who is a beneficial owner of an interest herein
given through the Holder hereof. Any definitive Registered Security of this
series issued in exchange for this permanent global Security shall be registered
in the name of or names of, and the transfer of such Securities may be
registered to such Person or Persons as the Holder hereof shall instruct the
Security Registrar. Except as provided above, owners of beneficial interests in
this permanent global Security will not be entitled to receive physical delivery
of Securities in definitive form and will not be considered the Holders thereof
for any purpose under Indenture.
Any exchange of this permanent global Security or portion hereof for
one or more definitive Registered Securities of this series will be made at the
New York office of the Security Registrar. Upon exchange of any portion of this
permanent global Security for one or more definitive Registered Securities of
this series, the Security Registrar shall endorse Schedule A of this permanent
global Security to reflect the reduction of its Principal Amount by an amount
equal to the aggregate principal amount of the definitive Registered Securities
of this series so issued in exchange, whereupon the Principal Amount hereof
shall be reduced for all purposes by the amount so exchanged and noted. Except
as otherwise provided herein or in the Indenture, until exchanged in full for
one or more definitive Registered Securities of this series, this permanent
global Security shall in all respects be subject to and entitled to the same
benefits and conditions under the Indenture as a duly authenticated and
delivered definitive Registered Security of this series.
3
<PAGE>
The principal and any interest in respect of any portion of this
permanent global Security payable in respect of an Interest Payment Date or at
the Stated Maturity thereof, in each case occurring prior to the exchange of
such portion for a definitive Registered Security or Securities of this series,
will be paid, as provided herein, to the Holder hereof. If a definitive
Registered Security or Registered Securities of this series are issued in
exchange for any portion of this permanent global Security after the close of
business at the office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, only to the Holder hereof.
Payment of the principal of and any such interest on this permanent
global Security will be made at the offices of First Union National Bank, as
Paying Agent, in the Borough of Manhattan, The City of New York, or at such
other office or agency of the Company as may be designated by it for such
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts; provided, however,
that payment of interest may be made at the option of the Company by United
States dollar check mailed to the addresses of the Persons entitled thereto as
such addresses shall appear in the Security Register or by transfer to a United
States dollar account maintained by the payee with, a bank in The City of New
York (so long as the applicable Paying Agent has received proper transfer
instructions in writing).
This permanent global Security is not subject to redemption prior to
Maturity.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series
(including this permanent global Security) may be declared due and payable in
the manner and with the effect provided in the Indenture. Upon payment (i) of
the amount of principal so declared due and payable and (ii) of interest on any
overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and any interest on
the Securities of this series (including this permanent global Security) shall
terminate.
The Indenture contains provisions for defeasance at any time of (a) the
entire obligations of the Company under this permanent global Security and (b)
certain restrictive covenants and the related defaults and Events of Default,
upon compliance with certain conditions set forth therein, which provisions
shall apply to this permanent global Security.
4
<PAGE>
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding on behalf of the Holders of all Securities of such series
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this permanent global Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
permanent global Security, and of any Security issued in exchange here for or in
lieu hereof whether or not notation of such consent or waiver is made upon this
permanent global Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Securities of this series, the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of this series shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding as trustee,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the Outstanding Securities of this series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days; provided, however, that such limitations do not apply
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal of or any interest on this permanent global Security on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this permanent
global Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
interest on this permanent global Security at the times, places, and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of Registered Securities of the series of
which this permanent global Security is a part may be registered on the Security
Register of the Company, upon surrender of such Securities for registration of
transfer at the office of the Security Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the Holder thereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
5
<PAGE>
No service charge shall be made for any such registration of transfer
or exchange of Securities as provided above, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of a Registered Security (including this
permanent global Security) for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner thereof for all purposes,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
The Securities of this series of which this permanent global Security
is a part are issuable only in registered form without coupons, in denominations
of $1,000 and any integral multiple thereof. As provided in the Indenture and
the Officers' Certificate setting forth the terms of the Securities of this
series and subject to certain limitations therein set forth, the Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
The Securities of this series (including this permanent global
Security) shall be dated the date of their authentication.
All terms used in this permanent global Security and not defined herein
shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or
on behalf of First Union National Bank, formerly known as First Union National
Bank of Virginia, the Trustee under the Indenture, or its successors thereunder,
by the manual signature of one of its authorized officers, this permanent global
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
6
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: MACSAVER FINANCIAL SERVICES, INC.
By:
Name:
Title:
Attest:
7
<PAGE>
GUARANTEE
For value received, Heilig-Meyers Company, a corporation
organized under the laws of the Commonwealth of Virginia (herein called
the "Guarantor," which term includes any successor corporation under
the Indenture referred to in the Security upon which this Guarantee is
endorsed), hereby unconditionally guarantees to the Holder of the
Security upon which this Guarantee is endorsed and to the Trustee on
behalf of the Trustee and such Holder the due and punctual payment of
the principal of, premium, if any, and interest on such Security, any
other amount due and payable pursuant to the terms of the Indenture and
the due and punctual payment of the sinking fund or analogous payments
referred to therein if any, when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of
acceleration, call for redemption or otherwise, according to the terms
thereof and of the Indenture referred to therein. In case of the
failure of MacSaver Financial Services, Inc., a corporation organized
under the laws of Delaware (herein called the "Company," which term
includes any successor corporation under such Indenture), punctually to
make any such payment of principal, premium, if any, or interest, the
Guarantor hereby agrees to cause any such payment to be made punctually
when and as the same shall become due and payable, whether at the
Stated Maturity or by declaration of acceleration, call for redemption
or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be
absolute and unconditional, irrespective of, and shall be unaffected
by, any invalidity, irregularity or unenforceability of such Security
or such Indenture, any failure to enforce the provisions of such
Security or such Indenture, or any waiver, modification or indulgence
granted to the Company with respect thereto, by the holder of such
Security or the Trustee or any other circumstance which may otherwise
constitute a legal or equitable discharge of a surety or guarantor. The
Guarantor hereby waives the benefits of division and discussion,
diligence, presentment, demand of payment, filing of claims with a
court in the event of merger, insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest or
notice with respect to such Security or the indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Guarantee
will not be discharged except by strict and complete performance of the
obligations contained in such Security and this Guarantee. The
Guarantor hereby agrees that, in the event of a default in payment of
principal of, premium, if any, and interest on such Security, or
default in any sinking fund or analogous payment referred to therein,
legal proceedings may be instituted by the Trustee on behalf of, or by,
the Holder of such Security, on the terms and
8
<PAGE>
conditions set forth in the Indenture, directly against the Guarantor
to enforce this Guarantee without first proceeding against the Company.
The Guarantor shall be subrogated to all rights of the Holder
of such Security and the Trustee against the Company in respect of any
amounts paid to such Holder by the Guarantor on account of such
Security pursuant to the provisions of this Guarantee or the Indenture;
provided, however, that the Guarantor shall not be entitled to enforce,
or to receive any payments arising out of or based upon, such right of
subrogation until the principal of, premium, if any, and interest on
all Securities issued under such Indenture shall have been paid in
full.
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantee of
the Guarantor, which is absolute and unconditional, of the due and
punctual payment of principal, premium (if any), and interest on the
Security upon which this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication of the Security upon
which this Guarantee is endorsed shall have been manually executed by
or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such
Indenture shall have the meanings assigned to them in such Indenture.
This Guarantee shall be deemed to be a contract made under the
laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to
be duly executed under its corporate seal and dated the date on the face hereof.
HEILIG-MEYERS COMPANY
By: _________________________________
Title: _________________________________
Attest:
- ----------------------------------
9
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series issued under the Indenture described
herein.
FIRST UNION NATIONAL BANK, as Trustee
By:
Authorized Officer
10
<PAGE>
SCHEDULE A
SCHEDULE OF EXCHANGES
<TABLE>
<CAPTION>
Principal amount Remaining Notation made on
exchanged for one principal amount behalf of
or more definitive following such the [Trustee]
Date exchange made Securities exchange [Security Registrar]
========================== ========================== ========================= ==============================
<S> <C>
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</TABLE>
