Exhibit 1.1
EXECUTION COPY
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DARDEN RESTAURANTS, INC.
(a Florida corporation)
UNDERWRITING AGREEMENT
August 9, 2005
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TABLE OF CONTENTS
Page
SECTION 1. REPRESENTATIONS AND WARRANTIES...............................3
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY...................3
(b) OFFICER'S CERTIFICATES.........................................12
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING..................12
(a) UNDERWRITTEN SECURITIES........................................12
(b) PAYMENT........................................................12
(c) DENOMINATIONS; REGISTRATION....................................13
(d) NO ADVISORY OR FIDUCIARY REPSPONSIBILITY.......................13
SECTION 3. COVENANTS OF THE COMPANY....................................13
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND
COMMISSION REQUESTS...........................................13
(b) FILING OF AMENDMENTS...........................................14
(c) DELIVERY OF REGISTRATION STATEMENTS............................14
(d) DELIVERY OF PROSPECTUSES.......................................14
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS......................15
(f) BLUE SKY QUALIFICATIONS........................................15
(g) EARNINGS STATEMENT.............................................15
(h) REPORTS TO SECURITYHOLDERS.....................................15
(i) USE OF PROCEEDS................................................15
(j) LISTING........................................................16
(k) RESTRICTION ON SALE OF SECURITIES..............................16
(l) REPORTING REQUIREMENTS.........................................16
SECTION 4. PAYMENT OF EXPENSES.........................................16
(a) EXPENSES.......................................................16
(b) TERMINATION OF AGREEMENT.......................................17
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.....................17
(a) EFFECTIVENESS OF REGISTRATION STATEMENT........................17
(b) OPINION OF COUNSEL FOR COMPANY.................................17
(c) OPINION OF COUNSEL FOR UNDERWRITERS............................17
(d) OFFICERS' CERTIFICATE..........................................18
(e) ACCOUNTANT'S COMFORT LETTER....................................18
(f) BRING-DOWN COMFORT LETTER......................................18
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TABLE OF CONTENTS
(continued)
(g) RATINGS........................................................18
(h) APPROVAL OF LISTING............................................19
(i) NO OBJECTION...................................................19
(j) LOCK-UP ARRANGEMENTS...........................................19
(k) ADDITIONAL DOCUMENTS...........................................19
(l) TERMINATION OF TERMS AGREEMENT.................................19
SECTION 6. INDEMNIFICATION.............................................19
(a) INDEMNIFICATION OF UNDERWRITERS................................19
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS.............20
(c) ACTIONS AGAINST PARTIES; NOTIFICATION..........................21
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE.............21
SECTION 7. CONTRIBUTION................................................22
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY..........................................23
SECTION 9. TERMINATION.................................................23
(a) UNDERWRITING AGREEMENT.........................................23
(b) TERMINATION; GENERAL...........................................23
(c) LIABILITIES....................................................24
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS..................24
SECTION 11. NOTICES.....................................................25
SECTION 12. PARTIES.....................................................25
SECTION 13. GOVERNING LAW AND TIME......................................25
SECTION 14. EFFECT OF HEADINGS..........................................25
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DARDEN RESTAURANTS, INC.
(a Florida corporation)
Debt Securities
UNDERWRITING AGREEMENT
August 9, 2005
To the Representative of the
several Underwriters named in the
Terms Agreement
hereinafter described
Ladies and Gentlemen:
Darden Restaurants, Inc., a Florida corporation (the "Company"), proposes
to issue and sell up to $600,000,000 aggregate initial public offering price of
its debt securities (the "Debt Securities"), from time to time, in or pursuant
to one or more offerings on terms to be determined at the time of sale.
The Debt Securities will be issued in one or more series under an
indenture, dated as of January 1, 1996 (the "Indenture"), between the Company
and Wells Fargo Bank, National Association (as successor to Wells Fargo Bank
Minnesota, National Association, formerly known as Norwest Bank Minnesota,
National Association), as trustee (the "Trustee"). Each series of Debt
Securities may vary, as applicable, as to title, aggregate principal amount,
rank, interest rate or formula and timing of payments thereof, stated maturity
date, redemption and/or payment provisions, sinking fund requirements,
guarantors and any other variable terms established by or pursuant to the
applicable Indenture. As used herein, "Securities" shall mean the Debt
Securities initially issuable by the Company.
Whenever the Company determines to make an offering of Securities, the
Company will enter into an agreement (each, a "Terms Agreement") providing for
the sale of such Securities to, and the purchase and offering thereof by, the
underwriters named in the applicable Terms Agreement (the "Underwriters," which
term shall include any Underwriter substituted pursuant to Section 10 hereof),
for whom the firm (or firms) designated as representative of the Underwriters of
such Underwritten Securities in the Terms Agreement relating thereto will act as
representative (the "Representative"). The Terms Agreement relating to the
offering of Securities shall specify the aggregate principal amount, as the case
may be, of Securities to be issued (the "Underwritten Securities"), the name of
each Underwriter participating in such offering (subject to substitution as
provided in Section 10 hereof) and the name of any Underwriter(s) acting as
co-manager in connection with such offering, the aggregate principal amount, as
the case may be, of Underwritten Securities which each such Underwriter
severally agrees to purchase, whether such offering is on a fixed or variable
price basis and, if on a fixed price basis, the initial
offering price, the price at which the Underwritten Securities are to be
purchased by the Underwriters, the form, time, date and place of delivery and
payment of the Underwritten Securities and any other material variable terms of
the Underwritten Securities. The Terms Agreement, which shall be substantially
in the form of EXHIBIT A hereto, may take the form of an exchange of any
standard form of written telecommunication between the Company and the
Representative, acting for itself and, if applicable, as representative of any
other Underwriters. Each offering of Underwritten Securities will be governed by
this Underwriting Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-127046) for the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), and the Company has filed such post-effective amendments
thereto as may be required prior to the execution of the applicable Terms
Agreement. Such registration statement (as so amended, if applicable) has been
declared effective by the Commission and each Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act regulations (the "Rule 430A Information") or Rule 434(d) of the 1933
Act Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement;" and the final prospectus and the final prospectus
supplement relating to the offering of the Underwritten Securities, in the form
first furnished to the Underwriters by the Company for use in connection with
the offering of the Underwritten Securities, are collectively referred to herein
as the "Prospectus;" PROVIDED, HOWEVER, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; PROVIDED FURTHER, that if the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then, after such filing,
all references to "Registration Statement" shall also be deemed to include the
Rule 462(b) Registration Statement; and PROVIDED FURTHER, that if the Company
elects to rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references in
this Underwriting Agreement to the date of the Prospectus shall mean the date of
the Term Sheet. A "preliminary prospectus" shall be deemed to refer to (i) any
prospectus used in connection with the offering of the Underwritten Securities
before the registration statement became effective or (ii) any prospectus that
omitted, as applicable, the Rule 430A Information, the Rule 434 Information or
other information to be included upon pricing in a form of prospectus filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was
used after such effectiveness and prior to the execution and delivery of the
applicable Terms Agreement, plus, in either case, all documents incorporated by
reference therein pursuant to the 1934 Act. For purposes of this Underwriting
Agreement, all references to (i) the Registration Statement,
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Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR"), (ii) the Indenture shall be deemed to include, as
applicable, any indenture supplemental thereto, and (iii) the Representative
shall be deemed to include, as applicable, all such Representatives if there
shall be more than one Representative.
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included," "referred to"
or "stated" (or other references of like import) in the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to the Representative, as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof and
as of the Closing Time (in each case, a "Representation Date"), as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with. In
addition, the Indenture has been duly qualified under the 1939 Act. At the
respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective and at
each Representation Date, the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto complied
and will comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. At the
date of the Prospectus, at the Closing Time and at each Date of Delivery,
if any, the Prospectus and any amendments and supplements thereto did not
and will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were
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made, not misleading. If the Company elects to rely upon Rule 434 of the
1933 Act Regulations, the Company will comply with the requirements of Rule
434. Notwithstanding the foregoing, the representations and warranties in
this subsection shall not apply to the Statement of Eligibility of the
Trustee on Form T-1 or statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter through
the Representative expressly for use in the Registration Statement or
Prospectus. Each preliminary prospectus and the 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 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of Underwritten Securities will, at the
time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except for
format and other variations permitted or required by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus (including the filing of the Company's most recent Annual Report
on Form 10-K with the Commission (the "Annual Report on Form 10-K")), at
the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, at the Closing Time and at each
Date of Delivery, if any, did not and will not include an 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.
(iii) INDEPENDENT ACCOUNTANTS. The accountants who expressed their
opinion with respect to the financial statements and supporting schedules
thereto and management's assessment of the effectiveness of internal
control over financial reporting included in the Registration Statement and
the Prospectus were at each time such opinion was issued, independent
registered public accountants as required by the 1934 Act and the1933 Act
and the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements of the Company
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present fairly
the financial position of the Company and its consolidated subsidiaries, or
such other entity, as the case may be, at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries, or such other entity, as the case may
be, for the periods specified. Such financial statements have been prepared
in conformity with accounting principles generally accepted in the United
States ("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in accordance with GAAP the
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information required to be stated therein. The selected financial data and
the summary financial information included in the Prospectus, if any,
present fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements included in
the Registration Statement and the Prospectus. In addition, any pro forma
financial statements of the Company and its subsidiaries and the related
notes thereto included in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition (financial or otherwise),
earnings, assets, properties, operations, or business, or to the knowledge
of the Company in the business prospects, of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) except for regular dividends on the Company's
common stock or preferred stock, in amounts per share that are consistent
with past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Florida and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Underwriting Agreement and the applicable Terms
Agreement. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify or be in good standing would not result in a Material Adverse
Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. Each material subsidiary (as set
forth on Annex I, each a "Material Subsidiary and, collectively, the
"Material Subsidiaries") of the Company has been duly formed and is validly
existing as a legal entity in good standing under the laws of its
jurisdiction of formation, has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign legal entity to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
or be in good standing would not result in a Material Adverse
5
Effect. Except as otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital stock of, or equity
interest in, as applicable, each such Material Subsidiary has been duly
authorized and is validly issued, fully paid and non-assessable and is
owned by the Company, directly or through Material Subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity. None of the outstanding shares of capital stock of, or equity
interest in, as applicable, any Material Subsidiary was issued in violation
of preemptive or other similar rights of any securityholder of such
Material Subsidiary.
(viii) CAPITALIZATION. If the Prospectus contains a "Capitalization"
section, the authorized, issued and outstanding shares of capital stock of
the Company is, to the extent set forth in such section as of May 29, 2005,
as set forth in the column entitled "Actual" under such section (except for
subsequent issuances or repurchases thereof, if any, (A) contemplated under
this Underwriting Agreement, (B) pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus, (C) pursuant to the
exercise of convertible securities or options referred to in the Prospectus
or (D) which are not in excess of 3 percent of the Company's outstanding
common stock, in the aggregate). The shares of capital stock of the Company
have been duly authorized and validly issued by the Company and are fully
paid and non-assessable; and none of such shares of capital stock was
issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(ix) AUTHORIZATION OF THIS UNDERWRITING AGREEMENT AND TERMS AGREEMENT.
This Underwriting Agreement has been, and the applicable Terms Agreement as
of the date thereof will have been, duly authorized, executed and delivered
by the Company.
(x) AUTHORIZATION OF DEBT SECURITIES. The Underwritten Securities have
been, or as of the date of such Terms Agreement will have been, duly
authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement and such Terms Agreement. Such Underwritten
Securities, when issued and authenticated in the manner provided for in the
applicable Indenture and delivered against payment of the consideration
therefor specified in such Terms Agreement, will constitute valid and
legally binding obligations of the Company, enforceable against the Company
in accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general principles of equity. Such
Underwritten Securities will be in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the applicable
Indenture.
(xi) AUTHORIZATION OF THE INDENTURE. The Indenture has been, or prior
to the issuance of the Debt Securities thereunder will have been, duly
authorized, executed and delivered by the Company and, upon such
authorization, execution and delivery, will constitute a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject, as to
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enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general principles of equity.
(xii) DESCRIPTION OF THE UNDERWRITTEN SECURITIES AND INDENTURE. The
Underwritten Securities being sold pursuant to the applicable Terms
Agreement and the Indenture, as of the date of the Prospectus, will conform
in all material respects to the statements relating thereto contained in
the Prospectus and will be in substantially the form filed or incorporated
by reference, as the case may be, as an exhibit to the Registration
Statement.
(xiii) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any
of its Material Subsidiaries is in violation of its charter, by-laws,
memorandum of association or other organizational document, as applicable,
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its Material
Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any Material
Subsidiary is subject (collectively, "Agreements and Instruments"), except,
in each case other than with respect to the charter, by-laws, memorandum of
association or other organizational document, as applicable, of the Company
or any of its Material Subsidiaries, for such violations or defaults that
would not result in a Material Adverse Effect. The execution, delivery and
performance of this Underwriting Agreement, the applicable Terms Agreement
and the Indenture, and any other agreement or instrument entered into or
issued or to be entered into or issued by the Company in connection with
the transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus and the consummation of the transactions
contemplated herein and in the Registration Statement and the Prospectus
(including the issuance and sale of the Underwritten Securities and the use
of the proceeds from the sale of the Underwritten Securities as described
under the caption "Use of Proceeds" in the Prospectus relating to such
Underwritten Securities) and compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any assets, property or operations of the Company or any of its
Material Subsidiaries pursuant to, any Agreements and Instruments nor will
such action result in any violation of the provisions of the charter,
by-laws, memorandum of association or other organizational document, as
applicable, of the Company or any of its Material Subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company ("Relevant Laws") or any of
its Material Subsidiaries or any of their assets, properties or operations
except, in each case other than with respect to the charter, by-laws,
memorandum of association or other organizational document, as applicable,
of the Company or any of its Material Subsidiaries or Relevant Laws, for
such conflicts, breaches, defaults, Repayment Events, liens, charges,
encumbrances, or violations that
7
would not result in a Material Adverse Effect. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of
its Material Subsidiaries.
(xiv) ABSENCE OF PROCEEDINGS. There is not an action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending or, to the
knowledge of the Company, threatened, against the Company or any of its
Material Subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated under this Underwriting
Agreement, the applicable Terms Agreement or the Indenture or the
performance by the Company of its obligations hereunder and thereunder. The
aggregate of all pending legal or governmental proceedings to which the
Company or any of its Material Subsidiaries is a party or of which any of
their respective assets, properties or operations is the subject which are
not described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xv) COMPLIANCE WITH STATE LAW. Neither the Company nor any of its
affiliates does business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075, Florida
Statues.
(xvi) ACCURACY OF EXHIBITS. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(xvii) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the performance by the
Company of its obligations under this Underwriting Agreement or the
applicable Terms Agreement or in connection with the transactions
contemplated under this Underwriting Agreement, such Terms Agreement or any
applicable Indenture, except such as have been already made or obtained or
as may be required under state securities laws.
(xviii) POSSESSION OF INTELLECTUAL PROPERTY. The Company and its
Material Subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by
8
them, except where the failure to possess or acquire would not, singly or
in the aggregate result in the Material Adverse Effect. Neither the Company
nor any of its Material Subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its Material
Subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(xix) POSSESSION OF LICENSES AND PERMITS. The Company and its Material
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, and the Company and
its Material Subsidiaries are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to possess
or comply would not, singly or in the aggregate, result in a Material
Adverse Effect. All of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect
would not result in a Material Adverse Effect. Neither the Company nor any
of its Material Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xx) TITLE TO PROPERTY. The Company and its Material Subsidiaries have
good and marketable title to all real property owned by the Company and its
Material Subsidiaries and good title to all other properties owned by them,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind, except (A) as
otherwise stated in the Registration Statement and the Prospectus or (B)
those which do not materially affect the value of the property of the
Company in the aggregate and do not interfere with the use made and
proposed to be made of the property by the Company or any of its Material
Subsidiaries. All of the leases and subleases of the Company and its
Material Subsidiaries considered as one enterprise, and under which the
Company or any of its Material Subsidiaries holds properties described in
the Prospectus, are in full force and effect, and neither the Company nor
any of its Material Subsidiaries has received any notice of any claim of
any sort that has been asserted by anyone adverse to the rights of the
Company or any of its Material Subsidiaries under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the
Company or such Material Subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease except where
the failure of such leases and subleases to be in full force and effect of
such claim, if the subject of an unfavorable decision, ruling or finding,
would, singly or in the aggregate, result in a Material Adverse Effect.
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(xxi) ENVIRONMENTAL LAWS. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not, singly
or in the aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its Material Subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release
or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its Material Subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or, to the
Company's knowledge, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its Material Subsidiaries
and (D) to the Company's knowledge, there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the Company or
any of its Material Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxii) REGISTRATION RIGHTS. There are no holders of securities (debt
or equity) of the Company or holders of rights (including, without
limitation, preemptive rights), warrants or options to obtain securities of
the Company, who have the right to request the Company to register
securities held by them under the 1933 Act, other than holders who have
waived or will not have such rights for a specified period to be agreed
upon among the Company and the Underwriters, and have waived their rights
with respect to the inclusion of their securities in the Registration
Statement.
(xxiii) ACCOUNTING CONTROLS. The Company maintains a system of
internal accounting controls sufficient to provide reasonable assurances,
in all material respects, that (A) transactions are executed in accordance
with management's general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(xxiv) COMPLIANCE WITH APPLICABLE LAW. The Company has complied in all
respects with all federal, state, local, foreign and similar statutes,
laws, ordinances, rules, regulations, orders, writs, injunctions,
judgments, and decrees applicable to the
10
Company or any of its Material Subsidiaries or to any of the Company's or
its Material Subsidiary's properties or assets, or with respect to any of
the Company's or its Material Subsidiary's officers, directors, employees
or agents in their capacity as such ("Applicable Laws"), except where the
failure to comply would not, individually or in the aggregate, result in a
Material Adverse Effect. None of the Company or any of its Material
Subsidiaries has received any written notice or other written communication
from any Governmental Authority or arbitrator regarding any violation by
the Company of, or a failure on the part of the Company to comply with any
Applicable Laws, other than any such violation or failure to comply which
would not, individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect.
(xxv) TAX RETURNS. The Company has filed all material Tax Returns
required to be filed by it in any jurisdiction, and all material Taxes for
which the Company is directly or indirectly liable, or to which any of its
properties or assets are subject, have been filed other than Taxes being
contested in good faith by appropriate proceedings and for which adequate
reserves have been established in accordance with GAAP. All such Tax
Returns are complete and accurate in all material respects. There is no
material proposed Tax assessment against the Company and, to the best
knowledge of the Company, there is no basis for any such assessment, except
for contested claims. All references in this subsection 1(a)(xxv) to the
Company shall include any Affiliated Group (within the meaning of Section
1504 of the Internal Revenue Code of 1986, as amended, or any similar
provision of any law), and any partnership or limited liability company in
which the Company is a member or partner. "Taxes" means all taxes of any
kind or nature, assessments and governmental charges, including interest
and penalties (whether or not actually shown on any Tax Return) imposed by
any government authority. "Tax Returns" means all reports, returns or other
information required to be supplied to a government authority with respect
to Taxes.
(xxvi) INSURANCE. Each of the Company and its Material Subsidiaries is
insured (including in each case self-insurance and reinsurance) by insurers
of recognized financial responsibility against such losses and risks and in
such amounts and covering such risks as management reasonably believes are
prudent and customary in the businesses in which it is engaged and all such
insurance is in full force and effect; neither the Company nor any of its
Material Subsidiaries has within the last 3 years been refused any
insurance coverage sought or applied for; and neither the Company nor any
of its Material Subsidiaries has reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business; except in the case of each of the foregoing as would
not have a Material Adverse Effect.
(xxvii) COMPANY NOT AN "INVESTMENT COMPANY." The Company has been
advised of the rules and requirements under the Investment Company Act of
1940, as amended (the "Investment Company Act"). The Company is not, and
after giving effect to the offering, the sale of the Underwritten
Securities and the application of the proceeds thereof as described in the
Prospectus, will not be required to register as an "investment company"
within the meaning of the Investment Company Act.
11
(xxviii) CONTROLS AND PROCEDURES. The Company has established and
maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the 1934 Act), which (i) are designed to ensure that
material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company's principal executive officer
and its principal financial officer by others within those entities,
particularly during the periods in which the periodic reports required
under the 1934 Act are being prepared and (ii) are effective in all
material respects to perform the functions for which they were established.
Based on the most recent evaluation of the Company's internal control over
financial reporting (as defined in Rule 13a-15(f) under the 1934 Act), the
Company is not aware of (a) any significant deficiency in the design or
operation of internal control over financial reporting which is reasonably
likely to adversely affect, in any material respect, the Company's ability
to record, process, summarize and report financial data or any material
weaknesses in internal control over financial reporting or (b) any fraud,
whether or not material, that involves management or other employees who
have a significant role in the Company's internal control over financial
reporting. Since the most recent evaluation of the Company's internal
control over financial reporting, there have been no material changes in
the Company's internal control over financial reporting or in other factors
that would reasonably be expected to materially affect the Company's
internal control over financial reporting.
(xxix) SARBANES-OXLEY. The Company is in material compliance with the
applicable provisions of the Sarbanes-Oxley Act of 2002, and, to the best
of the Company's knowledge, the Company's directors and officers, in their
capacities as such, are in material compliance with the applicable
provisions of the Sarbanes-Oxley Act of 2002.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(a) UNDERWRITTEN SECURITIES. The several commitments of the Underwriters to
purchase the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Underwritten Securities shall be made at the offices of
McGuireWoods LLP, Charlotte, North Carolina, or at such other place as shall be
agreed upon by the Representative and the Company, at 10:00 A.M. (Eastern time)
on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on
any given day) business day after the date of the applicable Terms Agreement
(unless postponed in accordance with the provisions of Section 10 hereof), or
such other time not
12
later than ten business days after such date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery being
herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Securities which it has severally agreed to purchase. The
Representative, individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time or the relevant Date of Delivery, as the case
may be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(c) DENOMINATIONS; REGISTRATION. The Underwritten Securities shall be in
such denominations and registered in such names as the Representative may
request in writing at least two full business days before the Closing Time or
the relevant Date of Delivery, as the case may be. The Underwritten Securities
will be made available for examination and packaging by the Representative in
Charlotte, North Carolina, or at such other place as shall be agreed upon by the
Representative and the Company, not later than 9:00 A.M. (Eastern time) on the
business day prior to the Closing Time or the relevant Date of Delivery, as the
case may be.
(d) NO ADVISORY OR FIDUCIARY REPSPONSIBILITY. The Company acknowledges and
agrees that: (i) the purchase and sale of the Underwritten Securities pursuant
to this Underwriting Agreement and the applicable Terms Agreement, including the
determination of the public offering price of the Underwritten Securities and
any related discounts and commissions, is an arm's-length commercial transaction
between the Company, on the one hand, and the several Underwriters, on the other
hand, and the Company is capable of evaluating and understanding and understands
and accepts the terms, risks and conditions of the transactions contemplated by
this Underwriting Agreement and the applicable Terms Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to
such transaction each Underwriter is and has been acting solely as a principal
and is not the financial advisor, agent or fiduciary of the Company or its
affiliates, stockholders, creditors or employees or any other party; (iii) no
Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters)
and no Underwriter has any obligation to the Company with respect to the
offering contemplated hereby except the obligations expressly set forth in this
Underwriting Agreement and the applicable Terms Agreement; (iv) the several
Underwriters and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company and
that the several Underwriters have no obligation to disclose any of such
interests by virtue of any advisory, agency or fiduciary relationship; and (v)
the Underwriters have not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it deemed appropriate.
13
This Underwriting Agreement and the applicable Terms Agreement supersede
all prior agreements and understandings (whether written or oral) between the
Company and the several Underwriters, or any of them, with respect to the
subject matter of this Section 2(d).
SECTION 3. COVENANTS OF THE COMPANY.
The Company covenants with the Representative and with each Underwriter
participating in the offering of Underwritten Securities, as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify the Representative promptly, and confirm the
notice in writing, of (i) the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will timely effect the filings necessary pursuant to
Rule 424 and will take such steps as it deems necessary to ascertain promptly
whether any Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company will use reasonable efforts to prevent the
issuance of any stop order and, if any stop order is issued, use promptly its
best efforts to obtain the lifting thereof.
(b) FILING OF AMENDMENTS. The Company will give the Representative notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representative with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file or use any such document to which the Representative or counsel for the
Underwriters shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or will
deliver to the Representative and counsel for the Underwriters, without charge,
signed or conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed or conformed copies of all consents and
certificates of experts, and will also deliver to the Representative, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the Underwriters.
Copies of the Registration
14
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except for format and other variations permitted
or required by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company will deliver to each Underwriter,
without charge, as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will furnish
to each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except for format and other
variations permitted or required by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters, without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its reasonable best
efforts, in cooperation with the Underwriters, to qualify the Underwritten
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Representative may
designate and to maintain such qualifications in effect for as long as may be
necessary to complete the distribution of the Underwritten Securities, up to one
year from the date of the applicable Terms Agreement; PROVIDED, HOWEVER, that
the Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a broker or dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject.
15
(g) EARNINGS STATEMENT. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) REPORTS TO SECURITYHOLDERS. Through its fiscal year ending in 2006, the
Company will deliver to the Representative copies of all reports or other
communications (financial or otherwise) made generally to securityholders of the
Company.
(i) USE OF PROCEEDS. The Company will use the net proceeds received by it
from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(j) LISTING. The Company will use reasonable efforts to effect the listing
of the Underwritten Securities, prior to the Closing Time, on any national
securities exchange or quotation system if and as specified in the applicable
Terms Agreement.
(k) RESTRICTION ON SALE OF SECURITIES. Between the date of the applicable
Terms Agreement and the Closing Time or such other date specified in such Terms
Agreement, the Company will not, without the prior written consent of the
Representative, directly or indirectly, issue, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, the Securities specified in
such Terms Agreement.
(l) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Company will pay all expenses incident to the performance
of its obligations under this Underwriting Agreement or the applicable Terms
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any agreement among underwriters, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Underwritten Securities, (iii) the preparation,
issuance and delivery of the Underwritten Securities to the Underwriters,
including any transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Underwritten Securities to the Underwriters,
(iv) the fees and disbursements of the Company's counsel, accountants and other
advisors or agents (including transfer agents and registrars), as well as the
reasonable fees and disbursements of any Trustees and their respective counsel,
(v) the qualification of the Underwritten Securities under state securities laws
in accordance with the provisions of Section 3(f) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey
16
and any Legal Investment Survey, and any amendment thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheet, and the Prospectus and any amendments or supplements thereto, (vii)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Underwritten Securities, if applicable, (viii) the fees and
expenses incurred with respect to the listing of the Underwritten Securities, if
applicable, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review, if
any, by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Underwritten Securities and (x) the fees and expenses
of any Underwriter acting in the capacity of a "qualified independent
underwriter" (as defined in the bylaws of the NASD), if applicable. It is
understood, however, that except as provided in this Section 4, and in Sections
6 and 7 hereof, the Underwriters will be responsible for all their own costs and
expenses, including the fees of their counsel, any transfer taxes on the
Underwritten Securities upon resale by them and all other expenses incurred by
them in connection with any offering of the Underwritten Securities made by the
Underwriters.
(b) TERMINATION OF AGREEMENT. If the applicable Terms Agreement is
terminated by the Representative in accordance with the provisions of Section 5
or Sections 9(b)(i) or 9(b)(iii)(with respect to the Company's securities)
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses reasonably incurred by the Underwriters in connection
with preparations for the purchase, sale and delivery of Underwritten Securities
pursuant to the applicable Terms Agreement, including the reasonable fees and
disbursements of counsel for the Underwriters, but the Company shall then be
under no further liability to any Underwriter with respect to such Underwritten
Securities except as provided in Sections 4(a), 6 and 7 hereof.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any officer of the Company or any of its subsidiaries delivered pursuant to
the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been initiated or be pending or threatened by the Commission,
and any request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing information relating to the description of
the Underwritten Securities, the specific method of distribution and similar
matters shall have been filed with the Commission in accordance with Rule
424(b)(1), (2), (3), (4) or (5), as applicable (or any required post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A), or, if the Company
has elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet
including the Rule 434 Information shall have been filed with the Commission in
accordance with Rule 424(b)(7).
17
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the Representative
shall have received the favorable opinion, dated as of Closing Time, of Dorsey &
Whitney LLP, counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect set forth in EXHIBIT B
hereto. In rendering such opinion Dorsey & Whitney LLP may rely as to matters
involving the application of the laws of the State of Florida, to the extent it
deems it proper and to the extent specified in such opinion, upon the opinion of
McGuireWoods LLP. In addition, at Closing Time, the Representative shall have
received the favorable opinion, dated as of Closing Time, of Douglas E. Wentz,
Senior Associate General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, to the effect set
forth in EXHIBIT C hereto.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of McGuireWoods LLP, counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, with
respect to the matters set forth in clauses (1), (2), (3), (4), (5), (6), (7)
(solely as to the information in the Prospectus under "Description of Notes" and
"Description of Debt Securities," or any caption purporting to describe any such
Securities), (11), (12) and the penultimate paragraph of EXHIBIT B hereto. In
giving such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the laws of the State of New York, the State of
Florida and the federal laws of the United States, upon the opinions of counsel
satisfactory to the Representative. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, a Material Adverse Effect,
and the Representative shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the effect that (i) there
has been no such Material Adverse Effect, (ii) the representations and
warranties in Section 1 are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or, to such officer's
knowledge, threatened by the Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of the
applicable Terms Agreement, the Representative shall have received from KPMG LLP
(and, if necessary, any other independent registered public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements are, or are required to be, included in the Registration
Statement) a letter dated such date, in form and substance satisfactory to the
Representative, together with signed or reproduced copies of such letter for
each of the other Underwriters, including matters such as those set forth in
EXHIBIT D
18
hereto and 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 the Registration
Statement and the Prospectus and to such further effect as the Representative
may reasonably request.
(f) BRING-DOWN COMFORT LETTER. At the Closing Time, the Representative
shall have received from KPMG LLP (and, if necessary, any other independent
registered public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements are, or are
required to be, included in the Registration Statement) a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(g) RATINGS. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization," as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to the
Representative a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Representative, confirming
that the Underwritten Securities have such rating. Since the time of execution
of such Terms Agreement, there shall not have occurred a downgrading in the
rating assigned to the Underwritten Securities or any of the Company's other
securities by any such rating organization, and no such rating organization
shall have publicly announced that it has under surveillance or review its
rating of the Underwritten Securities or any of the Company's other securities.
(h) APPROVAL OF LISTING. At Closing Time, the Underwritten Securities shall
have been approved for listing, subject only to official notice of issuance, if
any, as specified in the applicable Terms Agreement.
(i) NO OBJECTION. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(j) LOCK-UP ARRANGEMENTS. On the date of the applicable Terms Agreement,
the Representative shall have received, in form and substance satisfactory to
it, each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(k) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of
19
the Underwritten Securities as herein contemplated shall be satisfactory in form
and substance to the Representative and counsel for the Underwriters.
(l) TERMINATION OF TERMS AGREEMENT. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement may be terminated by the Representative by notice
to the Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7, 8 and 13 shall survive any such
termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; PROVIDED that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Representative),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged
20
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representative expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information
deemed to be a part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information deemed to be a part thereof,
if applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representative expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action; PROVIDED, HOWEVER, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel (and local counsel) if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest in the reasonable judgment of the
indemnified party, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall have authorized
21
the indemnified party to employ separate counsel at the expense of the
indemnifying party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding 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, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (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
Underwritten Securities pursuant to the applicable Terms Agreement or (ii) if
the allocation provided by clause (i) 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 which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
22
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
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate public offering price of such Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
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 Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any 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 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number or aggregate principal amount,
as the case may be, of Underwritten Securities set forth opposite their
respective names in the applicable Terms Agreement and not joint.
23
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company submitted pursuant hereto or thereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of and payment for the Underwritten Securities.
SECTION 9. TERMINATION.
(a) UNDERWRITING AGREEMENT. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by the Representative upon the giving of 30 days' prior written
notice of such termination to the other party hereto.
(b) TERMINATION; GENERAL. The Representative may terminate the applicable
Terms Agreement, by notice to the Company, at any time at or prior to the
Closing Time or any relevant Date of Delivery, if (i) there has been, since the
time of execution of this Underwriting Agreement or since the respective dates
as of which information is given in the Prospectus, a Material Adverse Effect,
or (ii) there has occurred, since the execution of the applicable Terms
Agreement, any material adverse change in the financial markets in the United
States or in the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or there has occurred any change
or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representative, impracticable or
inadvisable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) trading in any securities of
the Company has been suspended or materially limited by the Commission or any
national securities exchange or quotation system on which the Company's common
stock is listed or quoted, or if trading generally on the New York Stock
Exchange or the American Stock Exchange or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been declared by
Federal, New York, or North Carolina authorities or, if the Underwritten
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, by the relevant authorities in the
related foreign country or countries, or (v) there has occurred a material
disruption in commercial banking or securities settlement or clearance services,
or (vi) there is any downgrading in the rating accorded the Underwritten
Securities by any "nationally recognized statistical rating organization" as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
1933 Act or if any such rating organization shall have publicly announced that
it has placed any of such Underwritten Securities on what is commonly termed a
"watch list" for possible downgrading.
(c) LIABILITIES. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of
24
any party to any other party except as provided in Section 4 hereof, and
provided further that Sections 1, 6, 7, 8 and 13 shall survive such termination
and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail at the Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then the Representative shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations under such Terms Agreement bear to the underwriting obligations
of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on
such date pursuant to such Terms Agreement, such Terms Agreement shall
terminate without liability on the part of any non-defaulting Underwriter
or on the part of the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 4 and the
indemnification and contribution provisions in Sections 6 and 7 hereof.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
the applicable Terms Agreement, either the Representative or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the address of the Representative as set forth
in the Terms Agreement; notices to the Company shall be directed to the Company
at 5900 Lake Ellenor Drive, Orlando, Florida 32809, attention of Senior Vice
President, General Counsel and Secretary.
25
SECTION 12. PARTIES. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
the Representative and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned in
this Underwriting Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS TO BE PERFORMED WHOLLY
WITHIN THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
26
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement between the Representative and the Company in accordance with its
terms.
Very truly yours,
DARDEN RESTAURANTS, INC.
By: /s/ William R. White, III
-----------------------------
Name: William R. White, III
Title: Senior Vice President and
Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
BANC OF AMERICA SECURITIES LLC
As Representative of the several Underwriters
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Peter J. Carbone
-------------------------------------
Authorized Signatory
WACHOVIA CAPITAL MARKETS, LLC
As Representative of the several Underwriters
By: WACHOVIA CAPITAL MARKETS, LLC
By: /s/ Jacob Horstman
------------------------------------
Authorized Signatory
27
EXHIBIT A
DARDEN RESTAURANTS, INC.
(a Florida corporation)
Debt Securities
TERMS AGREEMENT
_________ ___, 2005
To: Darden Restaurants, Inc.
5900 Lake Ellenor Drive
Orlando, Florida 32809
Ladies and Gentlemen:
We understand that Darden Restaurants, Inc., a Florida corporation (the
"Company"), proposes to issue and sell $[__________] aggregate principal amount
of its debt securities (the "Debt Securities") (such securities also being
hereinafter referred to as the "Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, we [the
underwriters named below (the "Underwriters")] offer to purchase, severally and
not jointly, the principal amount of Underwritten Securities [opposite their
names set forth below] at the purchase price set forth below.
Principal Amount
Underwriter of Underwritten Securities
- --------------- --------------------------------------
Total _____________________
[$]
===================
The Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
A-1
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Defeasance provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering: initial public offering price: [__]% of the
principal amount, plus accrued interest, if any, or amortized original
issue discount, if any, from ________________.
Purchase price: ___% of principal amount, plus accrued interest, if any, or
amortized original issue discount, if any, from ____________.
Form:
Other terms and conditions:
Closing date and location:
Additional co-managers, if any:
All of the provisions contained in the document attached as Annex I hereto
entitled "Darden Restaurants, Inc. --Underwriting Agreement" are hereby
incorporated by reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined.
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ________________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
[NAME OF REPRESENTATIVE]
By:
-----------------------------
Authorized Signatory
[Acting on behalf of itself and the
other named Underwriters.]
Accepted:
DARDEN RESTAURANTS, INC.
By: ____________________________
Name:
Title:
A-2
EXHIBIT B
FORM OF OPINION OF DORSEY & WHITNEY LLP, COUNSEL FOR
THE COMPANY, TO BE DELIVERED PURSUANT TO SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Florida.
(2) The Company has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under, or as contemplated under, the
Underwriting Agreement and the applicable Terms Agreement.
(3) The Underwriting Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Company.
(4) The Underwritten Securities have been duly authorized by the Company
for issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Underwritten Securities, when issued and authenticated in
the manner provided for in the Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will constitute valid
and legally binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles. Such Underwritten Securities will be in the form contemplated by,
and each registered holder thereof is entitled to the benefits of, the
Indenture.
(5) The Indenture has been duly authorized, executed and delivered by the
Company and (assuming due authorization, execution and delivery thereof by the
Trustee) constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles and the Indenture has been duly
qualified under the 1939 Act.
(6) The Indenture and the Underwritten Securities being sold pursuant to
the applicable Terms Agreement conform in all material respects to the
statements relating thereto contained in the Prospectus and are in substantially
the form filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
(7) The information in the Prospectus under "Description of Debt
Securities," "Description of Notes" and in the Registration Statement under Item
15, to the extent that it constitutes matters of law, summaries of legal
matters, the Company's charter and bylaws, legal proceedings or legal
conclusions, has been reviewed by us and is correct in all material respects.
B-1
(8) The execution, delivery and performance of the Underwriting Agreement,
the applicable Terms Agreement and the Indenture and any other agreement or
instrument entered into or issued or to be entered into or issued by the Company
in connection with the transactions contemplated in the Registration Statement
and the Prospectus and the consummation of the transactions contemplated in the
Underwriting Agreement and such Terms Agreement and in the Registration
Statement and the Prospectus (including the issuance and sale of the
Underwritten Securities and the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use Of Proceeds") and
compliance by the Company with its obligations thereunder do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to us, to which the Company is a party or by
which it may be bound, or to which any of the assets, properties or operations
of the Company is subject, except for such conflicts, breaches, defaults, events
or liens, charges or encumbrances that would not result in a Material Adverse
Effect, nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its assets, properties or operations.
(9) To the best of our knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to be
filed as exhibits thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects.
(10) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(11) The Registration Statement has been declared effective under the 1933
Act. Any required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b). No stop order
suspending the effectiveness of the Registration Statement has been issued under
the 1933 Act and, to the best of our knowledge, no proceedings for that purpose
have been instituted or are pending or threatened by the Commission.
(12) The Registration Statement and the Prospectus, and each amendment or
supplement to the Registration Statement and Prospectus, as of their respective
effective or issue dates (other than the financial statements and supporting
schedules included therein or omitted therefrom, and each Trustee's Statement of
Eligibility on Form T-1 (the "Form T-1s"), as to which we express no opinion)
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
(13) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules therein or omitted therefrom,
as to which we
B-2
express no opinion), when they were filed with the Commission complied as to
form in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder.
(14) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the performance by the
Company of its obligations under the Underwriting Agreement or the applicable
Terms Agreement or in connection with the transactions contemplated under the
Underwriting Agreement, such Terms Agreement or the Indenture other than under
the 1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939 Act
Regulations, which have been obtained, or as may be required under state
securities or blue sky laws.
As counsel to the Company, we have examined various documents and records
and have participated in the preparation of and reviewed the Registration
Statement and the Prospectus and participated in discussions with
representatives of the Company and its counsel and accountants, and
representatives of the Underwriters and their counsel.
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any post-effective amendment thereto, including the
Rule 430A Information and Rule 434 Information (if applicable) (including the
filing of the Company's Annual Report on Form 10-K with the Commission) (except
for financial statements and schedules and other financial data included therein
or omitted therefrom and for the Form T-1s, as to which we make no statement),
at the time such Registration Statement or any post-effective amendment thereto
became effective or at the date of the applicable Terms Agreement, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which we make no statement), as of the date of the
Prospectus, as of the date of any such amended or supplemented prospectus or at
the Closing Time, included or includes an untrue statement of a material fact or
omitted 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.
In rendering such opinions, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. In
rendering the opinion in the third sentence of paragraph 11, such counsel may
rely solely upon a telephone conversation with a member of the staff of the
Commission. Such opinions shall not state that they are to be governed or
qualified by, or that they are otherwise subject to, any treatise, written
policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
B-3
EXHIBIT C
FORM OF OPINION OF DOUGLAS E. WENTZ, SENIOR ASSOCIATE GENERAL
COUNSEL FOR THE COMPANY, TO BE DELIVERED PURSUANTTO SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Florida.
(2) The Company has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under, or as contemplated under, the
Underwriting Agreement and the applicable Terms Agreement.
(3) The Material Subsidiaries have the corporate power and authority, or in
the case of GMRI Texas, L.P., the limited partnership power and authority, to
own, lease and operate their properties and to conduct their business as
described in the Prospectus.
(4) The information in the Registration Statement under Item 15, to the
extent that it constitutes matters of law, summaries of legal matters, the
Company's charter and bylaws or legal proceedings or legal conclusions, has been
reviewed by us and is correct in all material respects.
(5) The execution, delivery and performance of the Underwriting Agreement,
the applicable Terms Agreement and the Indenture and any other agreement or
instrument entered into or issued or to be entered into or issued by the Company
in connection with the transactions contemplated in the Registration Statement
and the Prospectus and the consummation of the transactions contemplated in the
Underwriting Agreement and such Terms Agreement and in the Registration
Statement and the Prospectus (including the issuance and sale of the
Underwritten Securities and the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use Of Proceeds") and
compliance by the Company with its obligations thereunder do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Material Subsidiaries pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument, known to me, to which the Material Subsidiaries
are a party or by which any of them may be bound, or to which any of the assets,
properties or operations of the Material Subsidiaries is subject, except for
such conflicts, breaches, defaults, events or liens, charges or encumbrances
that would not result in a Material Adverse Effect, nor will such action result
in any violation of the provisions of the charter or by-laws or, in the case of
GMRI Texas L.P., the certificate of limited partnership or partnership
agreement, of any Material Subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to me, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Material Subsidiaries or any of their assets, properties or operations.
C-1
(6) There is not pending or threatened any action, suit, proceeding,
inquiry or investigation to which the Company or any of its Material
Subsidiaries thereof is a party or to which the assets, properties or operations
of the Company or any of its Material Subsidiaries thereof is subject, before or
by any court or governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect or which might
reasonably be expected to materially and adversely affect the consummation of
the transactions contemplated under the Underwriting Agreement, the applicable
Terms Agreement or the Indenture or the performance by the Company of its
obligations thereunder.
(7) To the best of our knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to be
filed as exhibits thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects.
(8) To the best of our knowledge, there are no statutes or regulations that
are required to be described in the Prospectus that are not described as
required.
In rendering such opinions, counsel may rely as to matters of fact (but not
as to legal conclusions), to the extent it deems proper, on certificates of
responsible officers of the Company and public officials. Such opinions shall
not state that they are to be governed or qualified by, or that they are
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
C-2
EXHIBIT D
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)
(i) We are independent public accountants with respect to the Company
within the meaning of the 1933 Act and the applicable published 1933 Act
Regulations.
(ii) In our opinion, the audited financial statements and the related
financial statement schedules included or incorporated by reference in the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
published rules and regulations thereunder.
(iii) On the basis of procedures (but not an examination in accordance with
generally accepted auditing standards) consisting of a reading of the unaudited
interim consolidated financial statements of the Company for the _____-month
periods ended _________, 20___ and _________, 20___, included in the
Registration Statement and the Prospectus (the "____-month financials"), [a
reading of the latest available unaudited interim consolidated financial
statements of the Company], a reading of the minutes of all meetings of the
stockholders and directors of the Company and its Subsidiaries and the and
Committees of the Company's Board of Directors and any Subsidiary committees
since _________________, inquiries of certain officials of the Company and its
Subsidiaries responsible for financial and accounting matters, a review of
interim financial information in accordance with standards established by the
American Institute of Certified Public Accountants in Statement on Auditing
Standards No. 71, Interim Financial Information ("SAS 71"), with respect to the
_____-month financials, and such other inquiries and procedures as may be
specified in such letter, nothing came to our attention that caused us to
believe that:
(A) the _____-month financials included in the Registration Statement and
the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act Regulations
applicable to unaudited interim financial statements included in registration
statements or any material modifications should be made to the _____-month
financials included in the Registration Statement and the Prospectus for them to
be in conformity with generally accepted accounting principles;
(B) at _________, 20___ and at a specified date not more than five days
prior to the date of the applicable Terms Agreement, there was any change in the
capital stock of the Company and its Subsidiaries or any decrease in the total
assets or stockholders investment of the Company and its Subsidiaries or any
increase in the notes and bonds payable and total liabilities of the Company and
its Subsidiaries, in each case as compared with amounts shown in the latest
balance sheet included in the Registration Statement and the Prospectus, except
in each case for changes, decreases or increases that the Registration Statement
and the Prospectus disclose have occurred or may occur; or
(C) for the period from _________, 20___ to _________, 20___ and for the
period from _________, 20___ to a specified date not more than five days prior
to the date of the applicable Terms Agreement, there was any decrease in
consolidated total revenues, operating
D-1
income, or net income, in each case as compared with the comparable period in
the preceding year, except in each case for any decreases that the Registration
Statement and the Prospectus discloses have occurred or may occur.
(iv) Based upon the procedures set forth in clause (iii) above and a
reading of the Selected Financial Data included in the Registration Statement
and the Prospectus and a reading of the financial statements from which such
data were derived, nothing came to our attention that caused us to believe that
the Selected Financial Data included in the Registration Statement and the
Prospectus do not comply as to form in all material respects with the disclosure
requirements of Item 301 of Regulation S-K of the 1933 Act, that the amounts
included in the Selected Financial Data are not in agreement with the
corresponding amounts in the audited consolidated financial statements for the
respective periods or that the financial statements not included in the
Registration Statement and the Prospectus from which certain of such data were
derived are not in conformity with generally accepted accounting principles.
(v) We have compared the information in the Registration Statement and the
Prospectus under selected captions with the disclosure requirements of
Regulation S-K of the 1933 Act and on the basis of limited procedures specified
herein, nothing came to our attention that caused us to believe that this
information does not comply as to form in all material respects with the
disclosure requirements of Items 302, 402 and 503(d), respectively, of
Regulation S-K.
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(vi) We are unable to and do not express any opinion on the Pro Forma
Financial Information (the "Pro Forma Statement") included in the Registration
Statement and the Prospectus or on the pro forma adjustments applied to the
historical amounts included in the Pro Forma Statement; however, for purposes of
this letter we have:
(A) read the Pro Forma Statement;
(B) performed an audit of the financial statements to which the pro forma
adjustments were applied;
(C) made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters about the basis for their
determination of the pro forma adjustments and whether the Pro Forma Statement
complies as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the Pro Forma Statement; and on the
basis of such procedures and such other inquiries and procedures as specified
herein, nothing came to our attention that caused us to believe that the Pro
Forma Statement included in the Registration Statement does not comply as to
form in all material respects with the applicable requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of those statements.
(vii) In addition to the procedures referred to in clause (ii) above, we
have performed other procedures, not constituting an audit, with respect to
certain amounts, percentages,
D-2
numerical data and financial information appearing in the Registration Statement
and the Prospectus, which are specified herein, and have compared certain of
such items with, and have found such items to be in agreement with, the
accounting and financial records of the Company.
D-3
ANNEX I
Schedule of Material Subsidiaries
1. GMRI, Inc.
2. GMRI Florida, Inc.
3. GMR Restaurants of Pennsylvania, Inc.
4. GMRI Texas L.P.
Annex I-1