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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): July 14, 1998
PROVIDENT COMPANIES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 1-11834 62-1598430
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
1 Fountain Square, Chattanooga, Tennessee 37402
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(Address of principal executive offices, including Zip Code)
(423) 755-1011
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Registrant's telephone number, including area code
N/A
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
Pursuant to a Registration Statement on Form S-3 (File No. 333-25009) (the
"Registration Statement") filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and
declared effective by the Commission on April 11, 1997, the Registrant
registered senior debt securities of the Company and certain back-up
undertakings of the Company (the "Registered Securities"), for delayed or
continuous offering to the public pursuant to Rule 415 under the Act, for a
maximum aggregate initial offering price of $900 million. Reference is made to
the Registration Statement for further information concerning the terms of the
Registered Securities and the offering thereof.
On June 30, 1998, an Underwriting Agreement (the "Underwriting Agreement"),
substantially in the form of Exhibit 1.1 to the Registration Statement, was
executed by the Registrant and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as representatives of the several underwriters named therein (the
"Underwriters"), providing for the sale by the Company to, and the offering to
the public by, the Underwriters of $200,000,000 6 3/8% Senior Notes due July 15,
2005 (the "2005 Notes") and $200,000,000 7% Senior Notes due July 15, 2018 (the
"2018 Notes" and, together with the 2005 Notes, the "Notes"). Specimens of the
2005 Notes and 2018 Notes are filed as Exhibits 4.1 and 4.2 hereto.
The sale of the Notes to the Underwriters pursuant to the Underwriting
Agreement was consummated on July 14, 1998. The Notes were offered and sold
pursuant to a Prospectus Supplement, dated July 9, 1998, and a Prospectus, dated
May 22, 1997, which have been filed under the Act pursuant to Rule 424(b).
The Notes were issued pursuant to an Indenture, dated as of March 16, 1998,
between the Registrant and The Chase Manhattan Bank, as trustee, in the form
previously filed as Exhibit 4.1 to the Company's Current Report on Form 8-K
dated March 16, 1998.
The opinion of Alston & Bird LLP, counsel to the Company, concerning
certain legal matters with respect to the validity of the Notes is filed as
Exhibit 5.1 hereto. Such opinion includes the consent of Alston & Bird LLP to
the reference to its name in the Prospectus Supplement.
The Registrant is filing this Current Report on Form 8-K in order to cause
the Underwriting Agreement and the opinions and consents of Alston & Bird LLP
to be incorporated into the Registration Statement by reference. By filing
this Current Report on Form 8-K, however, the Registrant does not believe that
any of the Underwriting Agreement, the specimen Notes, the opinion and consent
of Alston & Bird LLP or the information set forth herein represent, either
individually or in the aggregate, a "fundamental change" (as such term is used
in Item 512(a)(1)(ii) of Regulation S-K) in the information set forth in the
Registration Statement.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
The following exhibits are being filed with this Form 8-K:
1.1 Underwriting Agreement, dated as of June 30, 1998, among the
Registrant and the underwriters named therein
4.1 Specimen 6 3/8% Senior Note due July 15, 2005
4.2 Specimen 7% Senior Note due July 15, 2018
5.1 Opinion of Alston & Bird LLP regarding legality of Notes
23.1 Consent of Alston & Bird LLP (included in exhibit 5.1)
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
PROVIDENT COMPANIES, INC.
(REGISTRANT)
/s/ Ralph A. Rogers, Jr.
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Ralph A. Rogers, Jr.
Senior Vice President and Treasurer
Date: September 22, 1998
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Exhibit 1.1
CONFORMED COPY
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PROVIDENT COMPANIES, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
July 8, 1998
From time to time, Provident Companies, Inc., a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Terms defined in the Underwriting Agreement are
used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the Offered
Securities together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
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1. REPRESENTATIONS AND WARRANTIES. The Company represents and
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warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented,
if applicable, will not contain any 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, (ii) the Registration Statement
and the Prospectus comply, and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii) the
Prospectus as of its date and on the Closing Date does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply to (A) statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Manager expressly for use therein or (B) to
that part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), of the Trustee.
(c) The documents incorporated by reference in the Registration
Statement or Prospectus, when such documents became effective or were filed
with the Commission, as the case may be, under the Exchange Act, (i)
complied, and any documents so filed and incorporated by reference after
the date of this Agreement will, when they are filed with the Commission,
comply, in all material respects with the Securities Act and the Exchange
Act, as applicable, and the applicable rules and regulations of the
Commission thereunder, and (ii) did not contain and, as amended or
supplemented, if applicable, will not contain any 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.
(d) The financial statements included in the Registration Statement
and the Prospectus, together with the related schedules and notes,
represent fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved.
The supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information shown
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therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement.
(e) The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are independent
public accountants as required by the Securities Act.
(f) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(g) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; and all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned by the Company either directly or
through another subsidiary of the Company, free and clear of all liens,
encumbrances, equities or claims.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(j) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
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laws affecting creditors' rights generally and (ii) rights of acceleration,
if any, and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(k) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture and
the Offered Securities will not contravene any provision of applicable law
or the certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as
a whole, or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, the Indenture or the Offered
Securities, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Offered Securities.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(n) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(o) The Company is not 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.
(p) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
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licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(q) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(r) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or
with any person or affiliate located in Cuba.
(s) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement or for the due execution,
delivery or performance of the Indenture by the Company, except such as
have been already obtained or as may be required under the Securities Act
or state securities laws and except for the qualification of the Indenture
under the Trust Indenture Act.
2. TERMS OF PUBLIC OFFERING. The Company is advised by the Manager
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that the Underwriters propose to make a public offering of their respective
portions of the Offered Securities as soon after this Agreement has been entered
into as in the Manager's judgment is advisable. The terms of the public
offering of the Offered Securities are set forth in the Prospectus.
3. PAYMENT AND DELIVERY. Except as otherwise provided in this
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Section 3, payment for the Offered Securities shall be made to the Company in
Federal or other immediately available funds at the time and place set forth in
the Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Offered Securities registered in
such names and in such denominations as the Manager shall request in writing not
less than two full business days prior to the date of delivery, with any
transfer taxes payable in connection with the transfer of the Offered Securities
to the Underwriters duly paid.
Delivery on the Closing Date of any Offered Securities that are in bearer
form shall be effected by delivery of a single temporary global debt security
without coupons evidencing the Offered Securities in the name of The Depository
Trust Company or its nominee.
4. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The several
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obligations of the Underwriters are subject to the following conditions:
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(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in the judgment of the
Manager, is material and adverse and that makes it, in the judgment of
the Manager, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in clause (a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Alston & Bird LLP, outside counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an
opinion of F. Dean Copeland, Executive Vice President and General Counsel
of the Company, dated the Closing Date, to the effect set forth in Exhibit
B hereto.
(e) The Underwriters shall have received on the Closing Date an
opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel for the
Underwriters, dated the Closing Date, to the effect set forth in Exhibit C
hereto.
The opinion of Alston & Bird LLP described in paragraph (c) above
shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
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(f) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters,
from Ernst & Young LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus; provided that the
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letter delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
(g) Prior to the Closing Date, the Company shall have furnished to the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably request in connection with the offering of the
Offered Securities.
5. COVENANTS OF THE COMPANY. In further consideration of the
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agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish the Manager, without charge, two signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the
Manager a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses the Manager will
furnish to the Company) to which the Offered Securities may have been sold
by the Manager on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
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(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to maintain such qualification for as long as
the Manager shall reasonably request.
(e) To make generally available to the Company's security holders and
to the Manager as soon as practicable an earning statement covering a
twelve-month period beginning on the first day of the first full fiscal
quarter after the date of this Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder. If such fiscal quarter is
the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of
the period covered thereby and in all other cases shall be made available
not later than 45 days after the close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
substantially similar to the Offered Securities (other than (i) the Offered
Securities and (ii) commercial paper issued in the ordinary course of
business), without the prior written consent of the Manager.
(g) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and accountants, the Trustee and its counsel in
connection with the preparation, registration issuance and delivery of the
Offered Securities under the Securities Act and all other fees or expenses
in connection with the preparation and filing of the Registration Statement
and the Prospectus and all amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers,
in the quantities hereinabove specified; (ii) the preparation, issuance and
delivery of the Offered Securities; (iii) the qualification of the Offered
Securities under state securities or Blue Sky laws in accordance with the
provisions of Section 6(d), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of any Blue Sky Memoranda; (iv) the
printing and delivery to the Underwriters of copies of any Blue Sky
Memoranda; (v) any fees charged by rating agencies for the rating of the
Offered Securities; (vi) all filing fees, reasonable fees and disbursements
of counsel to the Underwriters incurred with respect to any filing with the
National Association of Securities Dealers, Inc. made in connection with
the Offered Securities; (vii) the costs and charges of any transfer agent,
registrar or depositary; (viii) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors; and (ix)
all other costs and expenses incident to the performance of the obligations
of the Company hereunder for which provision is not otherwise made in this
Section 5. It is understood, however, that except as provided in this
Section 5, Section 6 entitled "Indemnity and Contribution," and the last
paragraph of Section 8 below, the Underwriters will pay all of their costs
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and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Offered Securities by them
and any advertising expenses connected with any offers they may make.
6. INDEMNITY AND CONTRIBUTION.
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(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred by any Underwriter or any such controlling person in connection
with defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused by
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Manager
expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either paragraph (a) or (b) of this Section 6, such
person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
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indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by the
Manager, in the case of parties indemnified pursuant to paragraph (a)
above, and by the Company, in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the
Offered Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other
hand in connection with the offering of the Offered Securities shall be
deemed to be in the same respective proportions as the net proceeds from
the offering of the Offered Securities (before deducting expenses) received
by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the
one hand and the Underwriters on the other hand shall be determined by
10
<PAGE>
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 or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant
to this Section 6 are several in proportion to the respective principal
amounts of Offered Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 6 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 that does not take
account of the equitable considerations referred to in paragraph (d) of
this Section 6. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that 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 Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its officers
or directors or any person controlling the Company and (iii) acceptance of
and payment for any of the Offered Securities.
7. TERMINATION. This Agreement shall be subject to termination by
-----------
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, and the
National Association of Securities Dealers, Inc. (ii) trading of any securities
of the Company shall have been suspended on any exchange or in any over-the-
counter market, (iii) a general moratorium on commercial banking activities in
New York shall have been declared by either Federal or New York State
authorities or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of the Manager, is material and adverse and (b) in the case of
11
<PAGE>
any of the events specified in clauses (a)(i) through (iv), such event, singly
or together with any other such event, makes it, in the judgment of the Manager,
impracticable to market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or more
-----------------------
of the Underwriters shall fail or refuse to purchase Offered Securities that it
has or they have agreed to purchase on such date, and the aggregate amount of
Offered Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate amount
of the Offered Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount of Offered
Securities set forth opposite their respective names in the Underwriting
Agreement bears to the aggregate amount of Offered Securities set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions
as the Manager may specify, to purchase the Offered Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the amount of Offered Securities
--------
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 8 by an amount in excess of one-ninth of such
amount of Offered Securities without the written consent of such Underwriter.
If on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Offered Securities and the aggregate amount of Offered Securities with
respect to which such default occurs is more than one-tenth of the aggregate
amount of Offered Securities to be purchased on such date, and arrangements
satisfactory to the Manager and the Company for the purchase of such Offered
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Manager or the Company shall have the
right to postpone the Closing Date but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Securities.
9. COUNTERPARTS. This Agreement may be signed in two or more
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
10. APPLICABLE LAW. This Agreement shall be governed by and
--------------
construed in accordance with the internal laws of the State of New York.
12
<PAGE>
11. HEADINGS. The headings of the sections of this Agreement have
--------
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
Very truly yours,
PROVIDENT COMPANIES, INC.
By: /s/ Thomas R. Watjen
---------------------------------------
Name: Thomas R. Watjen
Title: Vice Chairman and
Chief Financial Officer
Accepted as of the date hereof
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BEAR STEARNS & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
MORGAN STANLEY & CO. INCORPORATED
SALOMON SMITH BARNEY HOLDINGS, INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Joseph E. Consolino
--------------------------
Name: Joseph E. Consolino
Title: Vice President
13
<PAGE>
EXHIBIT A
Pursuant to Section 4(c) of the Agreement, Alston & Bird LLP, outside
counsel for the Company, shall provide to the Underwriters on the Closing Date
an opinion, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(ii) the Agreement has been duly authorized, executed and delivered by
the Company;
(iii) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance
with its terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency, or similar laws affecting creditors' rights
generally and (b) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(iv) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency, or similar
laws affecting creditors' rights generally and (b) rights of acceleration,
if any, and the availability of equitable remedies may be limited by
equitable principles of general applicability;
(v) the execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Agreement, the Indenture and
the Offered Securities will not contravene any provision of applicable law
or the certificate of incorporation or by-laws of the Company or, to the
best of such counsel's knowledge, any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the Company
and its subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under the Agreement, the Indenture and the Offered
Securities, except such as may be required by the securities or
14
<PAGE>
Blue Sky laws of the various states in connection with the offer and sale
of the Offered Securities;
(vi) the statements (A) in the Basic Prospectus under the captions
"Description of Debt Securities" and "Plan of Distribution" and in the
Prospectus Supplement under the captions "Description of the Notes" and
"Underwriters" and (B) in the Registration Statement under Item 15, in each
case insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(vii) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required;
(viii) the Company is not 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;
(ix) such counsel (A) has no reason to believe that (except for
financial statements and schedules and other financial data included
therein, as to which such counsel need not express any belief, and except
for that part of the Registration Statement that constitutes the Form T-1
heretofore referred to) each part of the Registration Statement, when such
part became effective, contained any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) is of the
opinion that the Registration Statement and Prospectus (except for
financial statements and schedules and other financial data included
therein, as to which such counsel need not express any opinion) comply as
to form in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (C) has no reason to
believe that (except for financial statements and schedules and other
financial data included therein as to which such counsel need not express
any belief) the Prospectus as of the date such opinion is delivered
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
15
<PAGE>
EXHIBIT B
Pursuant to Section 4(d) of the Agreement, F. Dean Copeland, Executive
Vice President and General Counsel of the Company, shall provide to the
Underwriters on the Closing Date an opinion, dated the Closing Date, to the
effect that:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole;
(iii) the Agreement has been duly authorized, executed and delivered
by the Company;
(iv) the execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Agreement, the relevant
Indenture and the Offered Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or, to the best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or, to the
best of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
relevant Indenture and the Offered Securities, except such as may be
required by the securities or Blue Sky laws of the various states or any
foreign jurisdiction in connection with the offer and sale of the Offered
Securities;
(v) the statements in the Basic Prospectus under the caption "Business
- Regulation" and in the Prospectus Supplement under the captions "The
Company - Regulation" and "The Company - Legal Proceedings," (B) in "Item 3
- Legal Proceedings" of the Company's most recent annual report on Form
10-K incorporated by reference in the Prospectus and (C) in "Item 1 - Legal
Proceedings" of Part II of the Company's
16
<PAGE>
quarterly reports on Form 10-Q, if any, filed since such annual report,
insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(vi) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required;
(vii) the Company and its subsidiaries (A) are in compliance with any
and all applicable Environmental Laws, (B) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (C) are in compliance with
all terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole; and
(viii) such counsel (A) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and schedules and other
financial data included therein, as to which such counsel need not express
any opinion) complied when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (B) has no reason to believe that (except for
financial statements and schedules and other financial data included
therein, as to which such counsel need not express any belief, and except
for that part of the Registration Statement that constitutes the Form T-1
heretofore referred to) each part of the Registration Statement, when such
part became effective, contained any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (C) is of the
opinion that the Registration Statement and Prospectus (except for
financial statements and schedules and other financial data included
therein, as to which such counsel need not express any opinion) comply as
to form in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (D) has no reason to
believe that (except for financial statements and schedules and other
financial data included therein as to which such counsel need not express
any belief) the Prospectus as of the date such opinion is delivered
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
17
<PAGE>
EXHIBIT C
Pursuant to Section 4(e) of the Agreement, LeBoeuf, Lamb, Greene &
MacRae, L.L.P., counsel to the Underwriters, shall provide to the Underwriters
on the Closing Date an opinion, dated the Closing Date, to the effect that:
(i) the Agreement has been duly authorized, executed and delivered by
the Company;
(ii) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance
with its terms subject to (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, rehabilitation, moratorium or other similar laws affecting
creditors' rights generally and (b) general principles of equity;
(iii) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, will be valid and binding
obligations of the Company, in each case enforceable in accordance with
their terms subject to (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, rehabilitation, moratorium or other similar laws affecting
creditors' rights generally and (b) general principles of equity;
(iv) the statements in the Prospectus under the captions "Description
of Debt Securities" and "Plan of Distribution" and in the Prospectus
Supplement under the captions "Description of the Notes" and
"Underwriters," insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein, fairly
summarize such matters; and
(v) the Registration Statement and Prospectus (except for financial
statements and schedules and other financial data included or incorporated
by reference therein, as to which such counsel need not express any
opinion) comply as to form in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
Nothing has come to the attention of such Counsel (A) that would lead
it to believe that (except for financial statements and schedules and other
financial data included or incorporated by reference therein, as to which
such counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore referred
to) the Registration Statement, at the time it became effective, 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 (B) that would lead it to believe that (except for
financial statements and schedules and other financial data included or
incorporated by reference therein as to which such counsel need not express
any belief) the Prospectus as of the date such opinion is delivered
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
18
<PAGE>
CONFORMED COPY
--------------
UNDERWRITING AGREEMENT
July 9, 1998
Provident Companies, Inc.
1 Fountain Square
Chattanooga, TN 37402
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Provident
Companies, Inc., a Delaware corporation (the "Company"), proposes to issue and
sell $200,000,000 aggregate initial offering price of 6 3/8% Senior Notes due
July 15, 2005 (the "2005 Notes") and $200,000,000 aggregate initial offering
price of 7% Senior Notes due July 15, 2018 (the "2018 Notes", and together with
the 2005 Notes, the "Offered Securities"). The Offered Securities will be
issued pursuant to the provisions of an Indenture dated as of March 11, 1998
(the "Indenture") between the Company and The Chase Manhattan Bank, as Trustee
(the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company (i) the respective principal amounts of the 2005 Notes set forth below
opposite its name at a purchase price of 6 3/8% of the principal amount of the
2005 Notes, plus accrued interest, if any, from July 14, 1998 to the date of
payment and delivery and (ii) the respective principal amounts of the 2018 Notes
set forth below opposite its name at a purchase price of 7% of the principal
amount of the 2018 Notes, plus accrued interest, if any, from July 14, 1998 to
the date of payment and delivery.
19
<PAGE>
<TABLE>
<CAPTION>
Principal Amount of
Underwriter 2005 Notes 2018 Notes
----------- ------------ -----------
<S> <C> <C>
Merrill Lynch, Pierce, Fenner & Smith 40,000,000 40,000,000
Incorporated
Bear Stearns & Co. Inc. 40,000,000 40,000,000
Credit Suisse First Boston Corporation 40,000,000 40,000,000
Morgan Stanley & Co. Incorporated 40,000,000 40,000,000
Salomon Smith Barney Holdings, Inc. 40,000,000 40,000,000
----------- -----------
Total............................................... 200,000,000 200,000,000
=========== ===========
</TABLE>
The Underwriters will pay for the Offered Securities upon delivery
thereof at the offices of LeBoeuf, Lamb, Greene & MacRae, L.L.P. at 125 West
55th Street, New York, New York 10019 at 10:00 a.m. (New York time) on July 14,
1998, or at such other time, not later than 5:00 p.m. (New York time) on July
14, 1998, as shall be designated by the Manager. The time and date of such
payment and delivery are hereinafter referred to as the "Closing Date."
The Offered Securities shall have the terms set forth in the
Prospectus dated May 22, 1997 and the Prospectus Supplement dated July 9, 1998,
including the following:
Terms of 2005 Notes
-------------------
Maturity Date: July 15, 2005
Interest Rate: 6 3/8%
Redemption Provisions: The Notes will not be redeemable prior to
their maturity.
Interest Payment Dates: January 15 and July 15 of each year,
commencing January 15, 1999.
Form and Denomination: The 2005 Notes will be issued in the form
of global securities in the aggregate
principal amount of $200,000,000.
Price to Public: 99.649%
20
<PAGE>
Dealer Concession: .625%
Reallowance Concession: .25%
Terms of 2018 Notes
-------------------
Maturity Date: July 15, 2018
Interest Rate: 7%
Redemption Provisions: The Notes will not be redeemable prior to
their maturity.
Interest Payment Dates: January 15 and July 15 of each year,
commencing January 15, 1999.
Form and Denomination: The 2018 Notes will be issued in the form
of global securities in the aggregate
principal amount of $200,000,000.
Price to Public: 99.968%
Dealer Concession: .875%
Reallowance Concession: .25%
All provisions contained in the document entitled Provident Companies,
Inc. Underwriting Agreement Standard Provisions (Debt Securities) dated July 8,
1998, a copy of which is attached hereto, are herein incorporated by reference
in their 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, except that (i)
if any term defined in such document is otherwise defined herein, the definition
set forth herein shall control, (ii) all references in such document to a type
of security that is not an Offered Security shall not be deemed to be a part of
this Agreement and (iii) all references in such document to a type of agreement
that has not been entered into in connection with the transactions contemplated
hereby shall not be deemed to be a part of this Agreement.
21
<PAGE>
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BEAR STEARNS & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
MORGAN STANLEY & CO. INCORPORATED
SALOMON SMITH BARNEY HOLDINGS, INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Joseph E. Consolino
-----------------------------------------
Name: Joseph E. Consolino
Title: Vice President
Accepted as of the date hereof:
PROVIDENT COMPANIES, INC.
By: /s/ Thomas R. Watjen
--------------------------------
Name: Thomas R. Watjen
Title: Vice Chairman and
Chief Financial Officer
22
<PAGE>
Exhibit 4.1
[SPECIMEN 6 3/8% SENIOR NOTE DUE JULY 15, 2005]
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company (as
defined below) or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in 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.
Registered No. N- PRINCIPAL AMOUNT
CUSIP No.: 743862 AC 8 --$[_____________]--
PROVIDENT COMPANIES, INC.
6 3/8% SENIOR NOTE DUE 2005
PROVIDENT COMPANIES, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein referred to as the "Company"
which term shall include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of
[____________________] on July 15, 2005, and to pay interest on the outstanding
principal amount thereon from July 14, 1998, or from the immediately preceding
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on January 15 and July 15 of each year, commencing
January, 1999, at the rate of 6 3/8% per annum, until the entire principal
hereof is paid or made available for payment. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security is
registered at the close of business on the Regular Record Date for such interest
which shall be December 31 or June 30 (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 may either be paid to the Person in
whose name this Security is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of the Securities not more
than 15 days and not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Payment of the principal of and interest on this
Security will be made at the office or agency maintained for that purpose in the
City of New York, New York, or elsewhere as provided in the Indenture, in such
coin or currency of the United
1
<PAGE>
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
--------
payments of principal and interest on the Notes (other than payments of
principal and interest due at Maturity) may be made (i) by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer to an account of the Person entitled
thereto located inside the United States.
Securities of this series are one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of the date first
above written (the "Indenture"), between the Company and The Chase Manhattan
Bank (herein called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are
authenticated and delivered. This Security is one of the series designated in
the first page thereof, limited in aggregate principal amount to $200,000,000.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Company, in each case, upon compliance by the Company with certain
conditions set forth in the Indenture, which provisions apply to this Security.
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Securities, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any interest on or
after the respective due dates expressed herein.
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
2
<PAGE>
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 principal amount of the Outstanding Securities of
each series of Securities then Outstanding affected thereby. The Indenture also
contains provisions permitting the Holders of specified percentages in 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 Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this 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 interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment where the principal of
and interest on this Security are payable 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 hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, 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 this 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 this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
3
<PAGE>
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evidenced hereby or thereby, shall be had against any promoter, as such, or
against any past, present or future shareholder, officer or director, as such,
of the Company or of any successor, either directly or through the Company or
any successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series.
All capitalized terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, PROVIDENT COMPANIES, INC. has caused this
instrument to be duly executed under its corporate seal.
Dated: July 14, 1998
PROVIDENT COMPANIES, INC.
By: /s/ Ralph A. Rogers, Jr.
------------------------
Ralph A. Rogers, Jr.,
Senior Vice President and Treasurer
[Corporate Seal]
Attest:
/s/ Susan N. Roth
- -----------------
Susan N. Roth
Vice President, Counsel and Secretary
4
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the within-
mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Gregory P. Shea
-------------------
Gregory P. Shea
Senior Trust Officer
5
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
- ---------------------------------
| | . . . . . . . . . . . . . . . . . . . . .
- ---------------------------------
- --------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address including Zip Code of Assignee)
- --------------------------------------------------------------------------------
the within Security of Provident Companies, Inc. and hereby does irrevocably
constitute and appoint
Attorney to transfer
- ----------------------------------------------------------
said Security on the books of the within-named Company with full power of
substitution in the premises.
Dated:
---------------------- ----------------------------------------
----------------------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
6
<PAGE>
Exhibit 4.2
[SPECIMEN 7% SENIOR NOTE DUE JULY 15, 2018]
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company (as
defined below) or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in 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.
Registered No. N- PRINCIPAL AMOUNT
CUSIP No.: 743862 AD 6 --$[_____________]--
PROVIDENT COMPANIES, INC.
7% SENIOR NOTE DUE 2018
PROVIDENT COMPANIES, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein referred to as the "Company"
which term shall include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of
[__________________] on July 15, 2018, and to pay interest on the outstanding
principal amount thereon from July 14, 1998, or from the immediately preceding
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on January 15 and July 15 of each year, commencing
January, 1999, at the rate of 7% per annum, until the entire principal hereof is
paid or made available for payment. The interest so payable and punctually paid
or duly provided for on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security is registered at
the close of business on the Regular Record Date for such interest which shall
be December 31 or June 30 (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 may either be paid to the Person in whose name
this Security is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of the Securities not more than 15 days and
not less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture. Payment of the principal of and interest on this Security will be
made at the office or agency maintained for that purpose in the City of New
York, New York, or elsewhere as provided in the Indenture, in such coin or
currency of the United
1
<PAGE>
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
--------
payments of principal and interest on the Notes (other than payments of
principal and interest due at Maturity) may be made (i) by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer to an account of the Person entitled
thereto located inside the United States.
Securities of this series are one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of the date first
above written (the "Indenture"), between the Company and The Chase Manhattan
Bank (herein called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are
authenticated and delivered. This Security is one of the series designated in
the first page thereof, limited in aggregate principal amount to $200,000,000.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Company, in each case, upon compliance by the Company with certain
conditions set forth in the Indenture, which provisions apply to this Security.
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Securities, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any interest on or
after the respective due dates expressed herein.
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
2
<PAGE>
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 principal amount of the Outstanding Securities of
each series of Securities then Outstanding affected thereby. The Indenture also
contains provisions permitting the Holders of specified percentages in 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 Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this 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 interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment where the principal of
and interest on this Security are payable 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 hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, 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 this 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 this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
3
<PAGE>
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evidenced hereby or thereby, shall be had against any promoter, as such, or
against any past, present or future shareholder, officer or director, as such,
of the Company or of any successor, either directly or through the Company or
any successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series.
All capitalized terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, PROVIDENT COMPANIES, INC. has caused this
instrument to be duly executed under its corporate seal.
Dated: July 14, 1998
PROVIDENT COMPANIES, INC.
By: /s/ Ralph A. Rogers, Jr.
------------------------
Ralph A. Rogers, Jr.,
Senior Vice President and Treasurer
[Corporate Seal]
Attest:
/s/ Susan N. Roth
- -----------------
Susan N. Roth
Vice President, Counsel and Secretary
4
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the within-
mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Gregory P. Shea
-------------------
Gregory P. Shea
Senior Trust Officer
5
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
- --------------------------------
| | . . . . . . . . . . . . . . . . . . . . . .
- --------------------------------
- --------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address including Zip Code of Assignee)
- --------------------------------------------------------------------------------
the within Security of Provident Companies, Inc. and hereby does irrevocably
constitute and appoint
Attorney to transfer
- -----------------------------------------------------------
said Security on the books of the within-named Company with full power of
substitution in the premises.
Dated:
---------------------- ----------------------------------------
----------------------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
6
<PAGE>
Exhibit 5.1
July 14, 1998
Provident Companies, Inc.
1 Fountain Square
Chattanooga, Tennessee 37402
Ladies and Gentlemen:
This opinion is given in connection with the public offering by
Provident Companies, Inc. (the "Company") of $200,000,000 6 3/8% Senior Notes
due July 15, 2005 (the "2005 Notes") and $200,000,000 7% Senior Notes due July
15, 2018 (the "2018 Notes" and, together with the 2005 Notes, the "Notes"). The
offering of the Notes will be made pursuant to a Prospectus Supplement dated
July 9, 1998 (the "Prospectus Supplement"), relating to the Prospectus dated May
22, 1997, filed with the Company's Shelf Registration Statement (Commission File
No. 333-25009) on Form S-3 (the "Registration Statement"). The Notes are
proposed to be issued by the Company pursuant to an indenture dated March 16,
1998 between the Company and The Chase Manhattan Bank, New York, New York, as
Trustee (the "Indenture").
As counsel to the Company, we have examined the relevant corporate and
other documents incident to the giving of this opinion. In our examination, we
have assumed the genuineness of all signatures and the authenticity of all
documents submitted to us as original documents, and conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies. Based upon the foregoing, we are of the following opinion:
The Notes covered by the Registration Statement, when issued, sold and
authenticated in accordance with the terms of the Indenture pursuant to the
Underwriting Agreement between the Company and Morgan Stanley & Co. Incorporated
on behalf of the underwriters will be duly authorized, legally issued, valid and
binding obligations of the Company.
We hereby consent to the incorporation by reference of this opinion
into the Registration Statement. We further consent to the reference to our
firm under the heading "Legal Opinions" in the Prospectus and "Legal Matters" in
the Prospectus Supplement.
Very truly yours,
/s/ David E. Brown, Jr.
-----------------------
David E. Brown, Jr., Partner
