DIAMONDBACK ENERGY, INC. $850,000,000 5.200% Senior Notes due 2027 $850,000,000 5.150% Senior Notes due 2030 $1,300,000,000 5.400% Senior Notes due 2034 $1,500,000,000 5.750% Senior Notes due 2054 $1,000,000,000 5.900% Senior Notes due 2064...
Exhibit 1.1
Execution Version
$850,000,000 5.150% Senior Notes due 2030
$1,300,000,000 5.400% Senior Notes due 2034
$1,500,000,000 5.750% Senior Notes due 2054
$1,000,000,000 5.900% Senior Notes due 2064
April 9, 2024
Citigroup Global Markets Inc.
BofA Securities, Inc.
TD Securities (USA) LLC
As Representatives of the several Underwriters named in Schedule
A
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
c/o BofA Securities, Inc.
One Bryant Park
c/o TD Securities (USA) LLC
0 Xxxxxxxxxx Xxxxxx, 00xx Floor
Ladies and Gentlemen:
Introductory.
Diamondback Energy, Inc., a Delaware corporation (the “Company”), agrees with the several underwriters named in Schedule A hereto (the “Underwriters”), for whom you are acting as the representatives
(the “Representatives”), subject to the terms and conditions stated herein, to issue and sell to the several Underwriters (i) U.S. $850,000,000
aggregate principal amount of its 5.200% Senior Notes due 2027 (the “2027 Notes”), (ii) U.S. $850,000,000 aggregate principal amount of its 5.150%
Senior Notes due 2030 (the “2030 Notes”), (iii) U.S. $1,300,000,000 aggregate principal amount of its 5.400% Senior Notes due 2034 (the “2034 Notes”), (iv) U.S. $1,500,000,000 aggregate principal amount of its 5.750% Senior Notes due 2054 (the “2054 Notes”), and (v) U.S. $1,000,000,000 aggregate principal amount of its 5.900% Senior Notes due 2064 (the “2064 Notes” and, together with the 2027 Notes, the 2030 Notes, the 2034 Notes and the 2054 Notes, the “Notes”).
The Notes will be issued pursuant to an Indenture dated as of December 13, 2022 (the “Base Indenture”), between the Company and Computershare Trust Company, National Association, as trustee (the “Trustee”), as supplemented by a supplemental indenture to be dated as of April 18, 2024 (the “Supplemental
Indenture,” and together with the Base Indenture, the “Indenture”). The Notes will be guaranteed (the “Guarantee” and, together with the Notes, the “Offered Securities”) by
Diamondback E&P LLC (the “Guarantor”).
The Offered Securities are being issued in part to fund, if consummated, a portion of the cash consideration in the
acquisition (the “Acquisition”) of Endeavor Parent, LLC (“Endeavor”)
and its wholly owned subsidiaries, pursuant to that certain Agreement and Plan of Merger, by and among the Company, Eclipse Merger Sub I, LLC, Eclipse Merger Sub II, LLC, Endeavor Manager, LLC (solely for purposes of certain sections set forth
therein), and Endeavor Parent, LLC, dated as of February 11, 2024 and amended on March 18, 2024 (together with the exhibits and schedules thereto, as amended, supplemented or otherwise modified, the “Acquisition Agreement”).
The Company and the Guarantor hereby jointly and severally confirm their agreement with the several Underwriters as
follows:
1. Representations and Warranties of the Company and the Guarantor. Each of the
Company and the Guarantor jointly and severally represents and warrants to, and agrees with, the several Underwriters that, as of the Applicable Time and as of the Closing Date (each as defined below):
(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms.
The Company has filed with the Commission a registration statement on Form S-3 (No. 333-268495) and a related prospectus or prospectuses, covering the registration of the Offered Securities under the Act, which has become effective. “Registration Statement” at any particular time means such registration statement in the form then filed with the Commission, including any amendment
thereto, any document incorporated by reference therein and all 430B Information and all 430C Information with respect to such registration statement, that in any case has not been superseded or modified. “Registration Statement” without reference to a time means the Registration Statement as of the Applicable Time. For purposes of this definition, 430B Information shall be considered to be
included in the Registration Statement as of the time specified in Rule 430B.
For purposes of this Agreement:
“430B Information” means information
included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part of the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information
included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430C.
“Act” means the Securities Act of 1933,
as amended.
“Applicable Time” means 5:10 p.m. (New
York City time) on the date of this Agreement.
“Closing Date” has the meaning set
forth in Section 2 hereof.
“Commission” means the United States
Securities and Exchange Commission.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Final Prospectus” means the Statutory
Prospectus that discloses the public offering price, other 430B Information and other final terms of the Offered Securities and otherwise satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus”
means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being so specified in Schedule B
to this Agreement.
“Issuer Free Writing Prospectus” means
any “issuer free writing prospectus,” as defined in Rule 433, relating to the Offered Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g).
“Limited Use Issuer Free Writing Prospectus”
means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
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“Rules and Regulations” means the rules
and regulations of the Commission.
“Securities Laws” means, collectively,
the Xxxxxxxx-Xxxxx Act of 2002 (“Xxxxxxxx-Xxxxx”), the Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules, standards and
practices applicable to auditors of “issuers” (as defined in Xxxxxxxx-Xxxxx) promulgated or approved by the Public Company Accounting Oversight Board (the “PCAOB”)
and, as applicable, the rules of the NASDAQ Global Select Market (“Exchange Rules”).
“Statutory Prospectus” with reference
to any particular time means the prospectus relating to the Offered Securities that is included in the Registration Statement immediately prior to that time, including any document incorporated by reference therein and all 430B Information and all 430C
Information with respect to the Registration Statement. For purposes of the foregoing definition, 430B Information shall be considered to be included in the Statutory Prospectus only as of the actual time that form of prospectus (including a prospectus
supplement) is filed with the Commission pursuant to Rule 424(b) and not retroactively.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Act.
(b) Compliance with the Requirements of the Act. (i)(A) At the time the Registration Statement initially became
effective, (B) at the time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by post-effective amendment, incorporated report or form of prospectus), (C) at the Applicable Time and (D) on the Closing
Date, the Registration Statement conformed, and will conform, in all material respects to the requirements of the Act and the Rules and Regulations with respect thereto and did not and will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) (A) on its date, (B) at the time of filing the Final Prospectus pursuant to Rule 424(b) and (C) on the Closing Date,
the Final Prospectus will conform in all material respects to the requirements of the Act and the Rules and Regulations with respect thereto, and will not include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any such document based upon
written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 6(b) hereof or to those parts of the Registration Statement which constitute the Trustee’s Statement of Eligibility and Qualification on Form T-1 under the Trust Indenture Act of
1939, as amended (the “Trust Indenture Act”).
(c) Filing Fees. The Company has paid or shall pay the required Commission filing fees relating to the Offered
Securities within the time required by Rule 456(b)(1) and otherwise in accordance with Rules 456(b) and 457(r).
(d) Ineligible Issuer Status. (i) At the Applicable Time and (ii) at the date of this Agreement, the Company was
not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 of the Act that it is not necessary that the Company be considered an ineligible issuer.
(e) General Disclosure Package. As of the Applicable Time, neither (i) the General Use Issuer Free Writing
Prospectus(es) issued at or prior to the Applicable Time and the preliminary prospectus supplement, dated April 8, 2024, including the base prospectus, dated November 21, 2022, and the other information, if any, stated in Schedule B to this Agreement to be included in the General Disclosure Package, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Limited Use Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a
material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions
from any Statutory Prospectus or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information described as such in Section 6(b) hereof.
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(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the Offered Securities or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information then contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus, at a time when a prospectus relating to
the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the Act by any Underwriter or dealer, there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information then contained in the Registration Statement or as a result of which such Issuer Free Writing Prospectus, if republished immediately following such event or development, would include an untrue
statement of a material fact or omitted or would omit 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, (i) the Company has promptly notified or
will promptly notify the Representatives and (ii) the Company has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing two
sentences do not apply to statements in or omissions from the Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6(b) hereof.
(g) Good Standing of the Company. The Company has been duly incorporated and is existing and in good standing
under the laws of the State of Delaware, with power and authority (corporate and other) to own and/or lease its properties and conduct its business as described in the General Disclosure Package; and the Company is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify or to be in good standing in such other
jurisdictions would not reasonably be expected to, individually or in the aggregate, result in a material adverse effect on the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its
subsidiaries taken as a whole (“Material Adverse Effect”).
(h) Subsidiaries. The Company’s “significant” subsidiaries, as defined in Rule 1-02 of Regulation S-X, are the
Guarantor, Viper Energy Partners LLC (“Viper OpCo”), QEP Resources, Inc. and QEP Energy Company (each a “Significant Subsidiary”). Each Significant Subsidiary has been duly formed and is existing and in good standing under the laws of the jurisdiction of its organization with the limited
liability company or corporate power and authority, as applicable, to own and/or lease its properties and conduct its business as described in the General Disclosure Package; and each Significant Subsidiary is duly qualified to do business as a
foreign limited liability company or corporation, as applicable, in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so
qualify or be in good standing in such other jurisdictions would not result in a Material Adverse Effect; all of the limited liability company interests or shares of common stock, as the case may be, in each Significant Subsidiary of the Company
have been duly authorized and validly issued in accordance with constituent documents of each Significant Subsidiary and are fully paid (to the extent required under such subsidiary’s limited liability company agreement with respect to those
Significant Subsidiaries of the Company that are limited liability companies) and non-assessable (except as such non-assessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act with respect to those
Significant Subsidiaries of the Company that are limited liability companies); and, except as otherwise disclosed in the General Disclosure Package with respect to (i) the pledge thereof in connection with Viper OpCo’s revolving credit facility and
(ii) the issuance and sale of common stock of Viper Energy, Inc. (“Viper”) to the public, in connection with acquisitions of mineral and royalty
interests or other assets or pursuant to Viper’s equity compensation plan, the equity interests in each Significant Subsidiary will be owned by the Company, directly or through subsidiaries, free from liens, encumbrances and defects.
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(i) Indenture. Each of the Base Indenture and the Supplemental Indenture has been duly authorized, the Base
Indenture was duly executed and delivered by each of the Company, the Guarantor and the Trustee and the Supplemental Indenture will have been duly executed and delivered by each of the Company, the Guarantor and the Trustee on the Closing Date. The
Base Indenture constitutes and the Supplemental Indenture will constitute, in each case, assuming due authorization, execution and delivery thereof by the Trustee, the valid and legally binding obligations of the Company and the Guarantor,
enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or other similar laws of general applicability relating to or
affecting the rights and remedies of creditors or by general equitable principles and except as rights to indemnification and contribution may be limited by applicable law.
(j) The Notes and the Guarantees. The Notes have been duly authorized by the Company and on the Closing Date (i)
will be in the form contemplated by the Indenture, (ii) will have been duly executed by the Company, (iii) when authenticated by the Trustee in the manner provided for in the Indenture on the Closing Date and delivered against payment of the
purchase price therefor, will have been duly authenticated, issued, executed and delivered and 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, fraudulent transfer or conveyance or other similar laws of general applicability relating to or affecting the rights and remedies of creditors or by general
equitable principles, and (iv) will be entitled to the benefits of the Indenture. On the Closing Date, (i) the Guarantees of the Notes will be as set forth in the Indenture, (ii) will have been duly authorized by the Guarantor, (iii) when issued by
the Guarantor, the Supplemental Indenture will have been duly executed and delivered by the Guarantor, (iv) when the Notes have been authenticated in the manner provided for in the Indenture and issued and delivered against payment of the purchase
price therefor, the Guarantees will constitute the valid and legally binding agreements of the Guarantor, enforceable against the Guarantor in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or conveyance or other similar laws of general applicability relating to or affecting the rights and remedies of creditors or by general equitable principle and (v) the Guarantees will be entitled to
the benefits provided by the Indenture.
(k) Trust Indenture Act. The Base Indenture has been and the Supplemental Indenture will be duly qualified under
the Trust Indenture Act, and the Base Indenture conforms and the Supplemental Indenture will conform in all material respects to the requirements of the Trust Indenture Act and the Rules and Regulations with respect thereto that are applicable to
an indenture which is qualified thereunder.
(l) No Finder’s Fee. Except as disclosed in the General Disclosure Package and the Final Prospectus, there are no
contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or the Guarantor or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection
with this offering.
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(m) Accurate Descriptions. The Indenture, this Agreement and the Offered Securities will conform in all material
respects to the respective statements relating thereto contained in the General Disclosure Package and the Final Prospectus.
(n)
No Registration Rights. Except as disclosed in the General Disclosure Package and the Final Prospectus, there are no contracts, agreements
or understandings between the Company or the Guarantor and any person granting such person the right to require the Company or the Guarantor to file a registration statement under the Act with respect to any debt securities of the Company or the
Guarantor owned or to be owned by such person or to require the Company or the Guarantor to include such securities in the securities registered pursuant to the Registration Statement.
(o) Absence of Further Requirements. No consent, approval, authorization, or order of, or filing or registration
with, any governmental agency or body or any court having jurisdiction over the Company or the Guarantor or any of their properties or assets is required to be obtained or made by the Company or the Guarantor for the consummation of the
transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Notes by the Company and the issuance of the Guarantees by the Guarantor, except such as have been obtained, or made and such as may be required
under state securities laws, the Act or Exchange Act, or by the Financial Industry Regulatory Authority (“FINRA”).
(p) Title
to Property – Company. Except as disclosed in the General Disclosure Package and the Final Prospectus, and except to the extent that failure of the following to be true, individually or in the aggregate, would not result in a Material Adverse
Effect: (w) the Company and its subsidiaries have (i) good and defensible title to all of the interests in oil and gas properties underlying the Company’s and Viper’s estimates of its net proved reserves contained in the General Disclosure Package and
(ii) good and marketable title to all other real and personal property reflected in the General Disclosure Package as assets owned by them, in each case free and clear of all liens, encumbrances and defects except such as (a) are liens under Viper
OpCo’s revolving credit facility or (b) are liens and encumbrances under operating agreements, unitization and pooling agreements, production sales contracts, farmout agreements and other oil and gas exploration, participation and production
agreements, in each case that secure payment of amounts not yet due and payable for the performance of other unmatured obligations and are of a scope and nature customary in the oil and gas industry or arise in connection with drilling and production
operations; (x) any other real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases; (y) the working interests derived from oil, gas and mineral leases or mineral
interests that constitute a portion of the real property held or leased by the Company and its subsidiaries, reflect in all material respects the rights of the Company and its subsidiaries to explore, develop or produce hydrocarbons from such real
property in the manner contemplated by the General Disclosure Package, and the care taken by the Company and its subsidiaries with respect to acquiring or otherwise procuring such leases or other property interests was generally consistent with
standard industry practices in the areas in which the Company and its subsidiaries operate for acquiring or procuring leases and interests therein to explore, develop or produce hydrocarbons; and (z) with respect to interests in oil and gas properties
obtained by or on behalf of the Company and its subsidiaries that have not yet been drilled or included in a unit for drilling, the Company and its subsidiaries have carried out such title investigations in accordance with the reasonable practice in
the oil and gas industry in the areas in which the Company and its subsidiaries operate.
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(q) Title to Property – Endeavor. Except as disclosed in the General Disclosure Package and the Final Prospectus and
except to the extent that failure of the following to be true, individually or in the aggregate, would not result in a Material Adverse Effect on Company following the completion of the Acquisition, to the Company’s knowledge: (w) Endeavor and
its subsidiaries have (i) good and defensible title to all of the interests in oil and gas properties underlying Endeavor’s estimates of its net proved reserves contained in the General Disclosure Package and (ii) good and marketable title to all
other real and personal property reflected in the General Disclosure Package as assets owned by them, in each case free and clear of all liens, encumbrances and defects except such as (a) are liens and encumbrances under operating agreements,
unitization and pooling agreements, production sales contracts, farmout agreements and other oil and gas exploration, participation and production agreements, in each case that secure payment of amounts not yet due and payable for the performance
of other unmatured obligations and are of a scope and nature customary in the oil and gas industry or arise in connection with drilling and production operations or (b) are liens securing the obligations under Endeavor Energy Resources L.P.’s
existing credit agreement, dated February 16, 2022 (as amended, supplemented or otherwise modified); (x) any other real property and buildings held under lease by Endeavor and its subsidiaries are held by them under valid, subsisting and
enforceable leases; (y) the working interests derived from oil, gas and mineral leases or mineral interests that constitute a portion of the real property held or leased by Endeavor and its subsidiaries, reflect in all material respects the
rights of Endeavor and its subsidiaries to explore, develop or produce hydrocarbons from such real property in the manner contemplated by the General Disclosure Package, and the care taken by Endeavor and its subsidiaries with respect to
acquiring or otherwise procuring such leases or other property interests was generally consistent with standard industry practices in the areas in which Endeavor and its subsidiaries operate for acquiring or procuring leases and interests therein
to explore, develop or produce hydrocarbons; and (z) with respect to interests in oil and gas properties obtained by or on behalf of Endeavor and its subsidiaries that have not yet been drilled or included in a unit for drilling, Endeavor and its
subsidiaries have carried out such title investigations in accordance with the reasonable practice in the oil and gas industry in the areas in which Endeavor and its subsidiaries operate.
(r) Rights-of-Way. The Company and its subsidiaries have such consents, easements, rights-of-way or
licenses from any person (collectively, “rights-of-way”) as are necessary to enable the Company to conduct its business in the manner described
in the General Disclosure Package, subject to qualifications as may be set forth in the General Disclosure Package, except where failure to have such rights-of-way would not have, individually or in the aggregate, a Material Adverse Effect.
(s) Reserve
Engineers. (i) Xxxxx Xxxxx Company, L.P. (“Xxxxx Xxxxx”), a reserve engineer that prepared reserve reports on estimated net proved oil and
natural gas reserves held by the Company and its subsidiaries as of December 31, 2023, December 31, 2022 and December 31, 2021, was, as of the date of preparation of such reserve reports, and is, as of the date hereof, an independent petroleum
engineer with respect to the Company and (ii) to the knowledge of the Company, Netherland, Xxxxxx & Associates, Inc. (“Netherland Sewell” and,
together with Xxxxx Xxxxx, the “Reserve Engineers”), a reserve engineer that prepared reserve reports on estimated net proved oil and natural gas
reserves held by Endeavor and its subsidiaries as of December 31, 2023, December 31, 2022 and December 31, 2021, was, as of the date of preparation of such reserve reports, and is, as of the date hereof, an independent petroleum engineer with respect
to Endeavor.
(t) Reserve
Report Information. The information contained in or incorporated by reference in the General Disclosure Package regarding estimated proved reserves of the Company is based upon the reserve reports prepared by Xxxxx Xxxxx; and, to the
knowledge of the Company, the information contained in or incorporated by reference in the General Disclosure Package regarding estimated proved reserves of Endeavor is based upon the reserve reports prepared by Netherland Xxxxxx. The information
provided to Xxxxx Xxxxx by the Company and its subsidiaries, and, to the knowledge of the Company, the information provided to Netherland Xxxxxx by Endeavor and its subsidiaries, including, in each case, without limitation, information as to:
production, costs of operation and development, current prices for production, agreements relating to current and future operations and sales of production, was true and correct in all material respects on the dates that such reports were made. Such
information was provided to Xxxxx Xxxxx (in the case of the Company) and, to the knowledge of the Company, Netherland Xxxxxx (in the case of Endeavor) in accordance with customary industry practices.
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(u) Reserve
Reports. The reserve reports prepared by Xxxxx Xxxxx setting forth the estimated proved reserves attributed to the oil and gas properties
of the Company accurately reflect in all material respects the ownership interests of the Company in its properties therein. To the knowledge of the
Company, the reserve reports prepared by Netherland Sewell setting forth the estimated proved reserves attributed to the oil and gas properties of Endeavor accurately reflect in all material respects the ownership interests of the Endeavor in its
properties therein. Other than normal production of reserves, intervening market commodity price fluctuations, fluctuations in demand for such products, adverse weather conditions, unavailability or increased costs of rigs, equipment, supplies or
personnel, the timing of third party operations and other facts, in each case in the ordinary course of business, and except as disclosed in the General Disclosure Package and the Final Prospectus, neither the Company nor, to the Company’s knowledge,
Endeavor is aware of any facts or circumstances that would result in a material adverse change in the aggregate net reserves, or the present value of future net cash flows therefrom, as described in the General Disclosure Package and the reserve
reports; and estimates of such reserves and present values of the Company and, to the knowledge of the Company, Endeavor as described in the General Disclosure Package and reflected in the reserve reports comply in all material respects with the
applicable requirements of Regulation S-X and Subpart 1200 of Regulation S-K under the Act.
(v) Absence
of Defaults and Conflicts Resulting from Transaction. The execution, delivery and performance of the Indenture with respect to the Offered Securities and this Agreement and the issuance and sale of the Offered Securities and compliance with
the terms and provisions thereof will not, as applicable, result in a breach or violation of any of the terms and provisions of, or constitute a default or a Debt Repayment Triggering Event (as defined below) under, or result in the imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws or similar organizational documents of the Company or any of its Significant Subsidiaries, (ii) any statute,
rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their properties, or (iii) any agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties of the Company or any of its subsidiaries is subject, except in the case of clauses (ii) and (iii), for any breaches,
violations, defaults, liens, charges or encumbrances, which, individually or in the aggregate, would not result in a Material Adverse Effect; a “Debt
Repayment Triggering Event” means any event or condition that gives, or with the giving of notice or lapse of time would give, 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 subsidiaries.
(w) Absence
of Existing Defaults and Conflicts. Neither the Company nor any of its subsidiaries is in violation of its charter, by-laws, limited liability company agreement or similar organizational documents, as applicable, or in default (or with the
giving of notice or lapse of time would be in default) under any existing obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which any of them is a party or by
which any of them is bound or to which any of the properties of any of them is subject, except such defaults that would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect.
(x) Authorization
of Agreement. This Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor.
(y) Possession
of Licenses and Permits. The Company and its subsidiaries possess all certificates, authorizations, franchises, licenses and permits issued by federal, state or local regulatory bodies (collectively, “Licenses”) necessary or material to the conduct of the business now conducted or proposed in the General Disclosure Package to be conducted by them, except where the failure to
have obtained the same would not reasonably be expected to, result in a Material Adverse Effect. The Company and each of its subsidiaries are in compliance with the terms and conditions of all such Licenses, except where the failure to so comply
would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect, and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to
the Company or any of its subsidiaries would reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect.
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(aa) Possession
of Intellectual Property. The Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, “intellectual property rights”) necessary to conduct the business now operated by them, or presently employed by
them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Company or any of its subsidiaries, would, individually or in
the aggregate, result in a Material Adverse Effect.
(bb) Environmental
Laws. Except as disclosed in the General Disclosure Package and the Final Prospectus, (a)(i) none of the Company or any of its subsidiaries is in violation of, and does not have any liability under, any federal, state, local or non-U.S.
statute, law, rule, regulation, ordinance, code, other requirement or rule of law (including common law), or decision or order of any domestic or foreign governmental agency, governmental body or court, relating to pollution, to the use, handling,
transportation, treatment, storage, discharge, disposal or release of Hazardous Substances (as defined below), to the protection or restoration of the environment or natural resources, to health and safety including as such relates to exposure to
Hazardous Substances, and to natural resource damages (collectively, “Environmental Laws”), (ii) to the knowledge of the Company, neither the Company
nor any of its subsidiaries own, occupy, operate or use any real property contaminated with Hazardous Substances, (iii) neither the Company nor any of its subsidiaries is conducting or funding any investigation, remediation, remedial action or
monitoring of actual or suspected Hazardous Substances in the environment, (iv) to the knowledge of the Company, neither the Company nor any of its subsidiaries is liable or allegedly liable for any release or threatened release of Hazardous
Substances, including at any off-site treatment, storage or disposal site, (v) neither the Company nor any of its subsidiaries is subject to any pending, or to the Company’s knowledge, threatened, claim by any governmental agency or governmental body
or person arising under Environmental Laws or relating to Hazardous Substances, and (vi) the Company and its subsidiaries have received and are in compliance with all, and have no liability under any, permits, licenses, authorizations, identification
numbers or other approvals required under applicable Environmental Laws to conduct their business, except in each case covered by clauses (i) – (vi) such as would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect; (b) to the knowledge of the Company, there are no facts or circumstances that would reasonably be expected to result in a violation of, liability under, or claim pursuant to any Environmental Law that would result in a Material
Adverse Effect; and (c) in the ordinary course of its business, the Company and its subsidiaries periodically evaluate the effect, including associated costs and liabilities, of Environmental Laws on the business, properties, results of operations
and financial condition of the Company and, on the basis of such evaluation, the Company and its subsidiaries have reasonably concluded that such Environmental Laws will not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect. For purposes of this subsection, “Hazardous Substances” means (A) petroleum and petroleum products, by-products or breakdown
products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls, per- and polyfluoroalkyl substances, and mold, and (B) any other chemical, material or substance defined or regulated as toxic or hazardous or as a pollutant,
contaminant or waste under Environmental Laws.
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(dd) Accurate Disclosure; Exhibits. The statements in (or incorporated by reference in) the General Disclosure Package and the Final Prospectus under the
headings “Description of Debt Securities,” “Description of Notes”, “Certain U.S. Federal Income Tax Consequences” and, to the knowledge of the Company, “Management’s Discussion and Analysis of Financial Condition and Results of Operations of
Endeavor” insofar as such statements summarize legal matters, agreements, documents or legal or regulatory proceedings discussed therein, are accurate summaries, in all material respects, of such legal matters, agreements, documents or legal or
regulatory proceedings and present the information required to be shown under the Securities Act. There are no contracts or documents which are required to be described in the Registration Statement or the General Disclosure Package pursuant to
Form S-3 or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K which have not been so described or filed as required pursuant to the Act, except where the lack of description or filing would not have a
Material Adverse Effect.
(ee) Absence
of Manipulation. Neither the Company nor the Guarantor has taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of
the price of any security of the Company or the Guarantor to facilitate the sale or resale of the Offered Securities.
(ff) Statistical
and Market-Related Data. Any third-party statistical and market-related data included or incorporated by reference in the Registration Statement, a Statutory Prospectus or the General Disclosure Package are based on or derived from sources
that the Company believes to be reliable and accurate in all material respects.
(gg) Internal
Controls and Compliance with the Xxxxxxxx-Xxxxx Act. The Company and the Company’s Board of Directors (the “Board”) are in compliance with
all applicable provisions of the Exchange Rules in all material respects. The Company maintains a system of internal controls, including, but not limited to, disclosure controls and procedures, internal controls over accounting matters and financial
reporting, an internal audit function and legal and regulatory compliance controls (collectively, “Internal Controls”) that comply with the
applicable Securities Laws and are sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with U.S. Generally Accepted Accounting Principles (“GAAP”) and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounting for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
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(hh) Disclosure
Controls. The Company and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the
Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s management, as appropriate to allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure
controls and procedures as required by Rule 13a-15 of the Exchange Act.
(ii) Litigation.
Except as disclosed in the General Disclosure Package and the Final Prospectus, there are no pending actions, suits or proceedings or, to the knowledge of the Company, any inquiries or investigations by any court or governmental agency or body,
domestic or foreign, against or affecting the Company, any of its subsidiaries, or any of their respective properties that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, or would reasonably be expected to materially and adversely affect the ability of the Company or the Guarantor to perform their obligations under the Indenture or this Agreement; and no such actions,
suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are, to the Company’s knowledge, threatened or contemplated.
(jj) Financial
Statements of the Company and Endeavor. The historical financial statements of the Company included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus present fairly, in all
material respects, the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows of the Company and its subsidiaries for the periods shown, and such financial statements
have been prepared in conformity with GAAP, applied on a consistent basis; and the pro forma financial statements and the related notes thereto of the Company and its subsidiaries included or incorporated by reference in the Registration Statement,
the General Disclosure Package and the Final Prospectus have been prepared in accordance with the Commission’s rules and guidance with respect to pro forma financial information prepared in accordance with Regulation S-X in all material respects, and
the assumptions underlying such pro forma financial information are reasonable and are set forth or incorporated by reference in each of the Registration Statement, the General Disclosure Package and the Final Prospectus. To the knowledge of the
Company, the historical financial statements of Endeavor and its subsidiaries included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus present fairly, in all material respects, the
financial position of Endeavor and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows of Endeavor and its subsidiaries for the periods shown, and such financial statements have been prepared in
conformity with GAAP, applied on a consistent basis. Xxxxx Xxxxxxxx LLP has certified the audited financial statements of the Company included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final
Prospectus, and is an independent registered public accounting firm with respect to the Company within the Rules and Regulations and as required by the Act and the applicable rules and guidance from the PCAOB. Xxxxx Xxxxxxxx LLP has certified the
audited financial statements of Endeavor included or incorporated by reference in the Registration Statement, General Disclosure Package and the Final Prospectus, and is an independent registered public accounting firm, to the Company’s knowledge,
with respect to Endeavor within the Rules and Regulations and as required by the Act and the applicable rules and guidance from the PCAOB. The other financial and statistical data included in the Registration Statement, the General Disclosure Package
and the Final Prospectus present fairly (or, in the case of Endeavor’s financial data, to the Company’s knowledge, present fairly), in all material respects, the information shown therein and such data has been compiled on a basis consistent with the
financial statements presented therein and the books and records of the Company or Endeavor, as applicable. There are no financial statements that are required pursuant to the Act and the Rules and Regulations thereto to be included or incorporated
by reference in the Registration Statement, the General Disclosure Package or the Final Prospectus that are not included or incorporated by reference as required pursuant thereto. The interactive data in eXtensible Business Reporting Language
included or incorporated by reference in each of the Registration Statement, the General Disclosure Package and the Final Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the
Commission’s rules and guidelines applicable thereto.
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(kk) Reserved.
(ll) Reserved.
(mm) No
Material Adverse Change in Business. Since the respective dates as of which information is given in the General Disclosure Package and the Final Prospectus, (i) there has not been any material change in the capital stock or any change in the
long-term debt of the Company or any of its subsidiaries, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), earnings, business, properties or
prospects of the Company and its subsidiaries, taken as a whole, except as otherwise disclosed or contemplated in the Disclosure Package and the Prospectus; (ii) there has been no dividend or distribution of any kind declared, paid or made by the
Company or its subsidiaries on any class of their capital stock; (iii) there has been no material adverse change in the short-term indebtedness, net current assets or net assets of the Company or any its subsidiaries; and (iv) except as set forth or
contemplated in the General Disclosure Package and the Final Prospectus, neither the Company nor any of its subsidiaries has entered into any transaction or agreement material to the Company and its subsidiaries, taken as a whole, other than in the
ordinary course of business.
(nn) Investment
Company Act. Neither the Company nor the Guarantor is and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the General Disclosure Package, will be required to
register as an “investment company” as defined in the Investment Company Act of 1940 (the “Investment Company Act”).
(oo) Regulations
T, U, X. None of the Company or its subsidiaries or any agent thereof acting on their behalf has taken, and none of them will take, any action that might cause this Agreement or the issuance or sale of the Offered Securities to violate
Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.
(pp) Reserved.
(qq) Taxes. The Company and its subsidiaries have filed all federal, state, local and non-U.S. tax returns that are required to be filed or have requested extensions thereof (except in any case in which the failure so to file would
not result in a Material Adverse Effect); and, except as set forth in the General Disclosure Package and the Final Prospectus, the Company and its subsidiaries have paid all taxes (including any assessments, fines or penalties) required to be paid
by them, except for any such taxes, assessments, fines or penalties currently being contested in good faith and for which an adequate reserve for accrual has been established in accordance with GAAP or as would not, individually or in the
aggregate, result in a Material Adverse Effect. No tax deficiency has been asserted against the Company or its subsidiaries, expect to the extent any deficiency that would not, individually or in the aggregate, result in a Material Adverse Effect.
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(rr) Insurance.
Except as disclosed in the General Disclosure Package and the Final Prospectus, the Company and its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as the Company
reasonably believes are adequate for the conduct of their business. The Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and there are no material claims by the Company or its
subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause. Neither the Company nor any of its subsidiaries has any reason to believe that any of them 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 at a cost that would not have a Material Adverse Effect, except as
disclosed in the General Disclosure Package and the Final Prospectus.
(ss) Certain Relationships and Related Transactions. No relationship, direct or indirect, exists between or among the Company or its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or its subsidiaries on the other hand, which is required to be described in the General Disclosure Package pursuant to the Act and the Rules and Regulations thereunder which is not so
described therein.
(tt)
ERISA. The minimum funding standard under Section 302 of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (“ERISA”), has been satisfied by each “pension plan” (as defined in Section 3(2) of ERISA) which has been established or maintained by the Company or any of its subsidiaries, and the trust forming part
of each such plan which is intended to be qualified under Section 401 of the Internal Revenue Code of 1986, as amended, is so qualified; each of the Company and its subsidiaries has fulfilled its obligations, if any, under Section 515 of ERISA;
neither the Company nor any of its subsidiaries maintain or are required to contribute to a “welfare plan” (as defined in Section 3(1) of ERISA) which provides retiree or other post-employment welfare benefits or insurance coverage (other than
“continuation coverage” (as defined in Section 602 of ERISA)); each pension plan and welfare plan established or maintained by the Company and/or any of its subsidiaries are in compliance with the currently applicable provisions of ERISA, except
where the failure to comply would not result in a Material Adverse Effect; and neither the Company nor any of its subsidiaries have incurred or would reasonably be expected to incur any withdrawal liability under Section 4201 of ERISA, any
liability under Section 4062, 4063 or 4064 of ERISA, or any other liability under Title IV of ERISA.
(uu)
No Unlawful Payments. Neither the Company nor any of its subsidiaries, nor any director, officer or employee of the Company or any of its subsidiaries, nor, to the knowledge of the Company and the Guarantor, any agent, affiliate or other
person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an
act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public
international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offense under the
Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without
limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and its subsidiaries have instituted, maintain and enforce policies and procedures designed to promote and ensure compliance
with all applicable anti-bribery and anti-corruption laws.
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(vv)
Compliance with Anti-Money Laundering Laws. The operations of the Company and its subsidiaries and, to the knowledge of the Company, the operations of Endeavor and its subsidiaries, are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), the applicable anti-money laundering statutes of all jurisdictions where the Company, Endeavor or any of their respective subsidiaries, as
applicable, conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries, or to the knowledge of the Company, Endeavor or any of its subsidiaries, with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company and the Guarantor, threatened.
(ww)
No Conflicts with Sanctions Laws. Neither the Company nor any of its subsidiaries, directors, officers or employees, nor, to the knowledge of the Company or the Guarantor, any agent, affiliate or other person associated with or acting on
behalf of the Company or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of
the Treasury or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council, the European Union, His Majesty’s Treasury, the Swiss
Secretariat of Economic Affairs, the Hong Kong Monetary Authority, the Monetary Authority of Singapore or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, Cuba, Iran, North Korea, Syria, the
Crimea Region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, any other Covered Region of Ukraine identified pursuant to Executive Order 14065, the Crimea region of Ukraine and the non-government
controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine (each, a “Sanctioned Country”); and the Company will not directly or indirectly
use the proceeds of the offering of the Notes hereunder, or lend, or knowingly contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or
business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a
violation by any person (including any person participating in the transaction, whether as underwriter, initial purchaser, advisor, investor or otherwise) of Sanctions. For the past five years, the Company and its subsidiaries have not knowingly
engaged in, and are not now knowingly engaged in and will not knowingly engage in, any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned
Country.
(xx)
Acquisition Agreement. (i) The Company has all requisite corporate power and authority to consummate the Acquisition and to enter into and perform its obligations under the Acquisition Agreement, and (ii) the Acquisition Agreement has been
duly and validly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.
(yy) Acquisition
Agreement Representations. To the knowledge of the Company, (i) the representations and warranties of Endeavor made in the Acquisition Agreement are true and correct in all material respects as of the date hereof, except to the extent such
representations and warranties are (A) made as of another date, in which case, such representations and warranties shall be true and correct in all respects as of that date, in each case, with the same force and effect as if made as of the date
hereof and (B) qualified by a materiality or “Material Adverse Effect” qualifier in the Acquisition Agreement, in which case they are true and correct as of the date hereof, in each case, subject to the qualifications set forth in the Company
Disclosure Letter (as defined in the Acquisition Agreement) and (ii) Endeavor has complied in all material respects with the covenants in the Acquisition Agreement applicable to it and required to be complied by it as of the date hereof. Nothing has
come to the attention of the Company that would cause it to reasonably believe that the Acquisition will not be consummated substantially in accordance with the terms of the Acquisition Agreement.
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2. Purchase, Sale and Delivery of Offered Securities. The Company agrees to sell
to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to
purchase from the Company, (i) the respective principal amount of the 2027 Notes set forth opposite such Underwriter’s name in Schedule A hereto at a price
equal to 99.606% of the principal amount thereof, plus accrued interest, if any, from April 18, 2024 to the Closing Date (as defined below), (ii) the respective principal amount of the 2030 Notes set forth opposite such Underwriter’s name in Schedule
A hereto at a price equal to 99.230% of the principal amount thereof, plus accrued interest, if any, from April 18, 2024 to the Closing Date (as defined below), (iii) the respective principal amount of the 2034 Notes set forth opposite such
Underwriter’s name in Schedule A hereto at a price equal to 99.029% of the principal amount thereof, plus accrued interest, if any, from April 18, 2024 to the Closing Date (as defined below), (iv) the respective principal amount of the 2054 Notes set
forth opposite such Underwriter’s name in Schedule A hereto at a price equal to 99.082% of the principal amount thereof, plus accrued interest, if any, from April 18, 2024 to the Closing Date (as defined below), and (v) the respective principal
amount of the 2064 Notes set forth opposite such Underwriter’s name in Schedule A hereto at a price equal to 99.079% of the principal amount thereof, plus accrued interest, if any, from April 18, 2024 to the Closing Date (as defined below). The
Company will not be obligated to deliver any of the Offered Securities except upon payment for all the Offered Securities to be purchased as provided herein.
The Company understands that the Underwriters intend to make a public offering of the Offered Securities as soon after the effectiveness of
this Agreement as in the judgment of the Representatives is advisable, and to offer the Offered Securities on the terms set forth in the Final Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Offered Securities
to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Offered Securities purchased by it to or through any Underwriter, provided that such affiliate offer the Offered Securities on the terms set forth in the Final
Prospectus.
Payment for the Offered Securities shall be made by the Underwriters in Federal (same day) funds by wire transfer to an account at a bank
specified in writing to the Representatives, at 9:00 a.m., (New York time), on April 18, 2024, or at such other time not later than seven full business days thereafter
as the Representatives and the Company determine, such time being herein referred to as the “Closing Date”, against delivery to the Trustee as
custodian for the Depository Trust Company (“DTC”), for the account of the Underwriters, of one or more global notes representing each series of the
Offered Securities (collectively, the “Global Notes”). The Global Notes will be made available electronically for inspection by the Representatives at
least 24 hours prior to the Closing Date.
3. Certain Agreements of the Company and the Guarantor. Each of the Company and
the Guarantor agrees with the several Underwriters that:
(a) Filing of Prospectuses and Issuer Free Writing Prospectuses. The Company has filed or will file each Statutory Prospectus (including the Final Prospectus) pursuant to
and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used or the execution and delivery of this Agreement and will file any Issuer Free Writing Prospectus (including the term sheet in
the form of Annex I to Schedule B
hereto) to the extent required by Rule 433 under the Act. The Company will advise the Representatives promptly of any such filing pursuant to Rule 424(b) and provide
satisfactory evidence to the Representatives of such timely filing. The Company has complied and will comply with Rule 433.
(b) Filing
of Amendments: Response to Commission Requests. The Company will promptly advise the Representatives of any proposal to amend or supplement at any time the Registration Statement or any Statutory Prospectus and will not effect such amendment
or supplementation without the Representatives’ consent, which shall not be unreasonably withheld; and the Company will also advise the Representatives promptly of (i) any amendment or supplementation of a Registration Statement or the Statutory
Prospectus, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or the threatening of any proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any
jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as
soon as possible the withdrawal thereof.
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(c) Final
Term Sheet. The Company will prepare a final term sheet containing only a description of the Offered Securities, in a form approved by the Underwriters and attached as Annex I to Schedule B hereto, and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such rule (such term sheet, the “Term Sheet”). Any such Term Sheet is a Permitted Free Writing Prospectus for purposes of this Agreement.
(d) Continued
Compliance with Securities Laws. If, at any time when a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the Act by any Underwriter or dealer, any event occurs
as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Representatives of such event and will promptly
prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon request of the Representatives, an amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. . Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof.
(e) Rule
158. As soon as practicable, but not later than 16 months after the date hereof the Company will make generally available to its security holders an earnings statement covering a period of at least 12 months beginning after the date hereof
and satisfying the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) Furnishing
of Prospectuses. The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, and upon the request of the Representatives, signed copies of the Registration Statement, any Statutory
Prospectus, and, so long as a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the Act, the Final Prospectus and all amendments and supplements to such documents, in each
case in such quantities as the Representatives reasonably request. The Final Prospectus shall be so furnished within two business days following the execution and delivery of this Agreement unless otherwise agreed by the Company and the
Representative. All other such documents shall be so furnished as soon as reasonably available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(g) Blue
Sky Qualifications. The Company shall cooperate with the Underwriters and counsel for the Underwriters to qualify or register the Offered Securities for resale under (or obtain exemptions from the application of) the U.S. state securities
or blue sky laws of those jurisdictions designated by the Underwriters, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Offered Securities. The
Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process or taxation in any such jurisdiction where it is not presently qualified or subject to taxation.
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(h) Reserved.
(i) Payment
of Expenses. The Company and the Guarantor will pay all expenses incident to the performance of its obligations under this Agreement and the Indenture, including but not limited to (i) the fees and expenses of the Trustee and its
professional advisors, (ii) any filing fees and reasonable attorney’s fees and expenses incurred by the Company or the Guarantor or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Offered Securities for offer and sale under the state securities or blue sky laws of such jurisdictions as the Representatives designate and the preparation and printing of memoranda relating thereto, (iii) the
filing fees incident to, and the reasonable fees and expenses of counsel for the Underwriters, in an amount not to exceed $20,000, in connection with, the FINRA’s review and approval of the Underwriters’ participation in the offering and distribution
of the Offered Securities, (iv) fees and expenses in connection with the registration of the Offered Securities under the Exchange Act, (v) expenses incurred in distributing preliminary prospectuses and the Final Prospectus (including any amendments
and supplements thereto) to the Underwriters and expenses incurred in preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors, (vi) any fees charged by investment rating agencies for the rating
of the Offered Securities, and (vii) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement. The Company and the Guarantor will also pay or reimburse the Underwriters (to the extent incurred by them) for
costs and expenses of the Company’s officers and employees and any other expenses of the Company and the Guarantor relating to investor presentations or any “road show” in connection with the offering and sale of the Offered Securities including,
without limitation, any travel expenses of the Company’s and the Guarantor’s officers and employees, provided, however, that the Underwriters will pay 50% of the costs and expenses of any chartered flight. Except as provided in this Agreement, the
Underwriters shall pay all of their own costs and expenses, including the fees and disbursement of their counsel.
(j) Use
of Proceeds. The Company will use the net proceeds received in connection with this offering in the manner described in the “Use of Proceeds” section of the General Disclosure Package.
(k) Absence of Manipulation. In connection with the offering, until the Representatives shall have notified the Company and the other Underwriters of the completion of the resale
of the Offered Securities, neither the Company, its subsidiaries nor any of their affiliates will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any
Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price
of, the Offered Securities.
(l) Restriction
on Sale of Securities. During the period from the date hereof through and including the Closing Date, the Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any
debt securities issued by the Company and having a tenor of more than one year; provided that, for the avoidance of doubt, such restriction shall not apply to any redemption or repurchase by the Company of any of its debt securities.
(m) Eligibility
for Clearance. The Company and the Guarantor will reasonably assist the
Underwriters to permit the Offered Securities to be eligible for clearance and settlement through the facilities of DTC.
4. Free Writing Communications. Each of the Company and the Guarantor represents
and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter severally represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any
offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing
prospectus consented to by the Company and the Representatives (including the term sheet in the form of Annex I to Schedule B hereto) is hereinafter referred to
as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where
required, legending and record keeping.
-17-
5. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties of each of the Company and the Guarantor herein on the date hereof and on the Closing Date (as though made on
the Closing Date), to the accuracy of the statements of officers of each of the Company and the Guarantor made pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of their respective obligations hereunder
and to the following additional conditions precedent:
(a) Xxxxx
Xxxxxxxx Comfort Letters. The Representatives shall have received letters, dated respectively the date hereof and the Closing Date, of Xxxxx Xxxxxxxx LLP, confirming that it is a registered public accounting firm and independent public
accountant within the meaning of the Securities Laws, in form and substance reasonably satisfactory to the Underwriters concerning the financial information with respect to the Company and Endeavor set forth in the General Disclosure Package and the
Final Prospectus.
(b) Reserved.
(c) Reserve
Engineer Letters. The Representatives shall have received letters, dated respectively the date hereof and the Closing Date, of Xxxxx Xxxxx,
with respect to the Company and Viper, and Netherland Xxxxxx, with respect to Endeavor, in form and substance reasonably acceptable to the Representatives, containing statements and information in the type customarily included in such letters to
underwriters with respect to the reserves and other operational information contained or incorporated by reference in the General Disclosure Package and the Final Prospectus.
(d) Filing
of Prospectus. The Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing in accordance with the Rules and Regulations and Section 3(a) hereof. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceeding for that purpose shall
have been instituted or, to the knowledge of the Company or any Underwriter, shall be contemplated by the Commission.
(e) No
Material Adverse Change. Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results
of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with the offer, sale or
delivery of the Offered Securities or to enforce contracts for the sale of the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company or the Guarantor by any “nationally recognized statistical
rating organization” (as defined in Section 3(a)(62) of the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred stock of the Company or the Guarantor
(other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company or the Guarantor has been placed on negative outlook; (iii) any change
in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the judgment of the Representatives, impractical or inadvisable to proceed with the
offer, sale or delivery of the Offered Securities or to enforce contracts for the sale of the Offered Securities; (iv) any suspension or material limitation of trading in securities generally on the New York Stock Exchange or the NASDAQ Global Select
Market, or any setting of minimum or maximum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company or the Guarantor on any exchange; (vi) any banking moratorium declared by any U.S. federal or New York
authorities; (vii) any major disruption of settlements of securities, payment or clearance services in the United States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration
of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical
or inadvisable to proceed with the offer, sale or delivery of the Offered Securities or to enforce contracts for the sale of the Offered Securities.
-18-
(f) Opinion
of Counsel for the Company and the Guarantor. The Representatives shall have received an opinion letter and a negative assurance letter, dated the Closing Date, of Xxxxxxxx, Lipton, Xxxxx & Xxxx, counsel for the Company and the
Guarantor, in form and substance reasonably satisfactory to the Representatives.
(g) Reserved.
(h) Opinion
of Chief Legal Officer for the Company. The Representatives shall have received an opinion letter, dated the Closing Date, of P. Xxxx Xxxxxxxxx, Chief Legal Officer for the Company and the Guarantor, in form and substance reasonably
satisfactory to the Representatives.
(i) Opinion
of Counsel for the Underwriters. The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Representatives may
require, and the Company and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(j) Officers’ Certificate. The Representatives shall have received a certificate, dated the Closing Date, of an executive officer of the Company and the
Guarantor and a principal financial or accounting officer of the Company and the Guarantor in which such officers shall state that (i) the representations and warranties of the Company and the Guarantor in this Agreement are true and correct, (ii)
the Company and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date, (iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been instituted or, to their knowledge, are contemplated by the Commission and (iv) subsequent to the date of the most recent financial statements in the General Disclosure Package
there has been no material adverse change, nor has any development or event occurred that would reasonably be expected to have a material adverse change, in the condition (financial or otherwise), results of operations, business, properties or
prospects of the Company and its subsidiaries, taken as a whole, except as set forth in the General Disclosure Package or as described in such certificate.
(k) DTC
Eligibility. The Notes shall be eligible for clearance and settlement through DTC.
(l) Supplemental
Indenture. The Underwriters shall have received a counterpart of the Supplemental Indenture with respect to the Offered Securities that shall have been validly executed and delivered by each of the Company and the Guarantor and the Trustee.
-19-
The Company and the Guarantor will furnish the Underwriters with any additional customary certificates, letters and documents as the
Representatives reasonably request and conformed copies of documents delivered pursuant to this Section 5. The Representatives may in their sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of a Closing Date or otherwise.
(a) Indemnification of the Underwriters. The Company and the Guarantor will indemnify and hold harmless each Underwriter, its partners, members, directors, officers,
employees, agents, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law
or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the
Registration Statement at any time, any Statutory Prospectus as of any time, the General Disclosure Package, the Final Prospectus or any Issuer Free Writing Prospectus, including any investor presentations or any “road show” used in connection with
the offering and sale of the Offered Securities, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability,
action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any of the above as such
expenses are incurred; provided, however, that the Company and the Guarantor will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (b) below.
(b) Indemnification
of the Company and the Guarantor. Each Underwriter will severally and not jointly indemnify and hold harmless each of the Company and the Guarantor and each of their respective directors, officers, employees, agents and affiliates and each
person, if any, who controls the Company or the Guarantor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Underwriter
Indemnified Party”), against any and all losses, claims, damages or liabilities to which such Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, or other Federal or state statutory law or regulation or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement at any time,
any Statutory Prospectus at any time, the Final Prospectus or any Issuer Free Writing Prospectus or arise out of or are based upon the omission or the alleged omission of a material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by such Underwriter Indemnified Party in connection with investigating or defending against any
such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Underwriter Indemnified Party is a party thereto), whether threatened or commenced, based upon any such untrue statement or omission,
or any such alleged untrue statement or omission as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter consists of the following information in the Final Prospectus furnished on behalf
of each Underwriter: the information contained in the first sentence of the fifth paragraph, the third sentence in the eighth paragraph, the eleventh paragraph and the twelfth paragraph, in each case under the caption “Underwriting.”
-20-
(c) Actions
against Parties; Notification. Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the contrary; (ii) the indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party; (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party; or (iv)
the named parties in any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood and agreed that the indemnifying party shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all indemnified parties, and that all such fees and expenses shall be reimbursed as they are incurred. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party. The
indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent(which consent shall not be unreasonably withheld), but if settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify each indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) Contribution.
If the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then
each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other from the offering of the Offered Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantor on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total discounts and commissions received by the Underwriters from the
Company under this Agreement. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantor or the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which
is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities purchased by it
were resold exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue statement or omission or alleged untrue statement or omission. The Underwriters’ obligations in this subsection (d) to
contribute are several in proportion to their respective purchase obligations and not joint. The Company, the Guarantor and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 6(d)
were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 6(d).
-21-
(e) The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any indemnified party at law or in equity.
7. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase Offered Securities hereunder and the aggregate principal amount of Offered Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the total principal amount of Offered
Securities that the Underwriters are obligated to purchase on the Closing Date, the Representatives may make arrangements satisfactory to the Company for the purchase of such Offered Securities by other persons, including any of the Underwriters, but
if no such arrangements are made by the Closing Date, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Offered Securities that such defaulting Underwriters agreed
but failed to purchase on the Closing Date. If any Underwriter or Underwriters so default and the aggregate principal amount of Offered Securities with respect to which such default or defaults occur exceeds 10% of the total principal amount of
Offered Securities that the Underwriters are obligated to purchase on the Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such Offered Securities by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except as provided in Section 8.
As used in this Agreement, the term “Underwriter” includes any person substituted for a Underwriter under this Section 7. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the Company, the Guarantor or their respective officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the Company, the Guarantor or any of their respective Representatives, officers or directors or any controlling person, and will survive
delivery of and payment for the Offered Securities. If this Agreement is terminated pursuant to Section 7 or if for any reason the purchase of the Offered
Securities by the Underwriters is not consummated, the Company and the Guarantor shall remain responsible for the expenses to be paid or reimbursed by them pursuant to Section 3
and the respective obligations of the Company and the Guarantor and the Underwriters pursuant to Section 6 shall remain in effect. If the purchase of the
Offered Securities by the Underwriters is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 7 or
the occurrence of any event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 5(e), the Company and the Guarantor will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Offered Securities. In addition, if any Offered Securities have been purchased hereunder, the
representations and warranties in Section 1 and all obligations under Section 3
shall remain in effect.
-22-
9. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters will be mailed, hand-delivered, telecopied or transmitted electronically and confirmed to the Underwriters, (i) c/o Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, Facsimile
000-000-0000; (ii) BofA Securities, Inc., 000 Xxxx 00xx Xxxxxx, XX0-000-00-00, Xxx Xxxx, New York 10036, Attention: High Grade Debt Capital Markets Transaction Management/Legal (fax (000) 000-0000); and (iii) c/o TD Securities (USA) LLC, 0 Xxxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: DCM-Transaction Advisory, Email: XXXxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxx.xxx; or, if sent to the Company or the Guarantor, will be mailed, hand-delivered, telecopied or transmitted electronically
and confirmed to it at 000 Xxxx Xxxxx Xxx., Xxxxx 0000, Xxxxxxx, Xxxxx 00000 Attention: P. Xxxx Xxxxxxxxx; provided, however, that any notice to a
Underwriter pursuant to Section 6 will be mailed, hand-delivered, telecopied or transmitted electronically and confirmed to such Underwriter.
10. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors and controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy,
electronic delivery or otherwise) to the other parties. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic
Transactions Act or other applicable law, e.g., www. Xxxxxxxx.xxx) in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same
effect as physical delivery of the paper document bearing the original signature.
12. Representation of Underwriters. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement, and any action under this Agreement taken by the Representatives will be binding upon all the Underwriters.
13. Absence of Fiduciary Relationship. Each of the Company and the Guarantor
acknowledges and agrees that:
(a) No
Other Relationship. The Underwriters have been retained solely to act as underwriters in connection with the sale of the Offered Securities and that no fiduciary, advisory or agency relationship between the Company or the Guarantor, on the one
hand, and any Underwriter has been created in respect of any of the transactions contemplated by this Agreement or the Final Prospectus, irrespective of whether any Underwriter has advised or are advising the Company or the Guarantor on other matters.
Any review by the Representatives or any Underwriter of the Company, the Guarantor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives of such Underwriter,
as the case may be, and shall not be on behalf of the Company, the Guarantor or any other person;
-23-
(b) Arm’s-Length
Negotiations. The purchase price of the Offered Securities set forth in this Agreement was established by the Company and the Guarantor following discussions and arm’s-length negotiations with the Representatives and the Company and the
Guarantor are capable of evaluating and understanding and understands and accept the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. Each of the Company and the Guarantor have been advised that each Underwriter and its affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company or the Guarantor and that each Underwriter has no obligation to disclose such interests and transactions to the Company or the Guarantor by virtue of any fiduciary,
advisory or agency relationship; and
(d) Waiver.
Each of the Company and the Guarantor, to the fullest extent permitted by law, any claims it may have against any Underwriter for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Underwriters shall have no liability
(whether direct or indirect) to the Company or the Guarantor in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company or the Guarantor, including members, stockholders,
employees or creditors of the Company or the Guarantor.
14. Applicable Law. This Agreement,
and any claim, controversy or dispute arising under or related to this Agreement, shall be governed by, and construed in accordance with, the laws of the State of New York.
Each of the Company and the Guarantor hereby submit to the non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Each of the Company and the Guarantor irrevocably and unconditionally waives any objection to the laying
of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.
15. Waiver of Jury Trial. Each of the Company and the Guarantor hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
16. PATRIOT Act. In accordance with the requirements of the USA PATRIOT Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company and the Guarantor, which information may include the
name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under
a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special
Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
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(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such
Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could
be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 17:
“BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity”
means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution
Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[Signature pages follow.]
-25-
If the foregoing is in accordance with the Underwriters’ understanding of our agreement, kindly sign and return to one of the counterparts
hereof, whereupon it will become a binding agreement among the Company, the Guarantor and the several Underwriters in accordance with its terms.
|
Very truly yours,
|
||
|
|
||
| By: |
/s/ Xxxxxxx Xxxx Van’t Hof |
|
| Name: |
Xxxxxxx Xxxx Van’t Hof |
|
| Title: |
President and Chief Financial Officer |
|
|
DIAMONDBACK E&P LLC
|
||
| By: |
/s/ Xxxxxxx Xxxx Van’t Hof |
|
| Name: |
Xxxxxxx Xxxx Van’t Hof |
|
| Title: |
President and Chief Financial Officer |
|
Signature Page to Underwriting Agreement
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|
|
The foregoing Underwriting Agreement is hereby confirmed and accepted
as of the date first above written.
|
|
|
|
|
|
|
|
CITIGROUP GLOBAL MARKETS INC. | |
| By: |
/s/ Xxxxx X. Xxxxxxx |
|
| Name: |
Xxxxx X. Xxxxxxx |
|
| Title: | Director |
|
| BOFA SECURITIES, INC. | ||
| By: |
/s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx |
|
| Title: |
Managing Director |
|
|
TD SECURITIES (USA) LLC
|
||
| By: |
/s/ Xxxx Xxxxxxxx | |
| Name: |
Xxxx Xxxxxxxx |
|
|
Title:
|
Director |
|
| Acting on behalf of themselves and as Representatives of the several Underwriters | ||
Signature Page to Underwriting Agreement
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SCHEDULE A
|
Underwriters
|
Aggregate Principal
Amount of 2027
Notes |
Aggregate
Principal Amount
of 2030 Notes
|
Aggregate
Principal Amount
of 2034 Notes |
Aggregate
Principal Amount
of 2054 Notes
|
Aggregate Principal
Amount of 2064
Notes
|
|
Citigroup Global Markets Inc.
|
$297,500,000
|
$297,500,000
|
$455,000,000
|
$525,000,000
|
$350,000,000
|
|
BofA Securities, Inc.
|
$78,625,000
|
$78,625,000
|
$120,250,000
|
$138,750,000
|
$92,500,000
|
|
TD Securities (USA) LLC
|
$78,625,000
|
$78,625,000
|
$120,250,000
|
$138,750,000
|
$92,500,000
|
|
Xxxxxxx Xxxxx & Co. LLC
|
$51,000,000
|
$51,000,000
|
$78,000,000
|
$90,000,000
|
$60,000,000
|
|
Xxxxxx Xxxxxxx & Co. LLC
|
$51,000,000
|
$51,000,000
|
$78,000,000
|
$90,000,000
|
$60,000,000
|
|
Xxxxx Fargo Securities, LLC
|
$51,000,000
|
$51,000,000
|
$78,000,000
|
$90,000,000
|
$60,000,000
|
|
Barclays Capital Inc.
|
$27,625,000
|
$27,625,000
|
$42,250,000
|
$48,750,000
|
$32,500,000
|
|
BOK Financial Securities, Inc.
|
$10,625,000
|
$10,625,000
|
$16,250,000
|
$18,750,000
|
$12,500,000
|
|
Capital One Securities, Inc.
|
$27,625,000
|
$27,625,000
|
$42,250,000
|
$48,750,000
|
$32,500,000
|
|
Comerica Securities, Inc.
|
$10,625,000
|
$10,625,000
|
$16,250,000
|
$18,750,000
|
$12,500,000
|
|
X.X. Xxxxxx Securities LLC
|
$27,625,000
|
$27,625,000
|
$42,250,000
|
$48,750,000
|
$32,500,000
|
|
PNC Capital Markets LLC
|
$27,625,000
|
$27,625,000
|
$42,250,000
|
$48,750,000
|
$32,500,000
|
|
RBC Capital Markets, LLC
|
$27,625,000
|
$27,625,000
|
$42,250,000
|
$48,750,000
|
$32,500,000
|
|
Scotia Capital (USA) Inc.
|
$27,625,000
|
$27,625,000
|
$42,250,000
|
$48,750,000
|
$32,500,000
|
|
Truist Securities, Inc.
|
$27,625,000
|
$27,625,000
|
$42,250,000
|
$48,750,000
|
$32,500,000
|
|
U.S. Bancorp Investments, Inc.
|
$27,625,000
|
$27,625,000
|
$42,250,000
|
$48,750,000
|
$32,500,000
|
|
Total
|
$850,000,000
|
$850,000,000
|
$1,300,000,000
|
$1,500,000,000
|
$1,000,000,000
|
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SCHEDULE B
Other Information Included in the General Disclosure Package
1. Final term sheet, dated April 9, 2024, a copy of which is attached hereto as Xxxxx X.
-29-
ANNEX I
Filed Pursuant to Rule 433
Registration No. 333-268495
April 9, 2024
PRICING TERM SHEET
$850,000,000 5.200% Senior Notes due 2027
$850,000,000 5.150% Senior Notes due 2030
$1,300,000,000 5.400% Senior Notes due 2034
$1,500,000,000 5.750% Senior Notes due 2054
$1,000,000,000 5.900% Senior Notes due 2064
The information in this pricing term sheet supplements the registration statement and the preliminary prospectus supplement and
supersedes the information in the registration statement and the preliminary prospectus supplement to the extent inconsistent with the information in those documents. Terms used herein but not defined herein shall have the respective meanings as
set forth in the preliminary prospectus supplement.
|
Issuer:
|
|
Securities:
|
5.200% Senior Notes due 2027 (the “2027 Notes”)
5.150% Senior Notes due 2030 (the “2030 Notes”) 5.400% Senior Notes due 2034 (the “2034 Notes”) 5.750% Senior Notes due 2054 (the “2054 Notes”) 5.900% Senior Notes due 2064 (the “2064 Notes”) |
|
Format:
|
SEC Registered
|
|
Trade Date:
|
April 9, 2024
|
|
Settlement Date:
|
April 18, 2024 (T+7)
|
|
|
It is expected that delivery of the Notes will be made against payment therefor on or about April 18, 2024, which is the 7th business day following the Trade Date (such settlement cycle being referred to as “T+7”). Pursuant to Rule
15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers
who wish to trade the Notes on any date prior to two business days before the Settlement Date will be required to specify alternative settlement arrangements at the time of any such trade to prevent a failed settlement.
|
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|
Anticipated Ratings:*
|
Moody’s: Baa2 (Stable)
S&P: BBB- (Positive)
Fitch: BBB (Positive)
|
|
Principal Amount:
|
2027 Notes: $850,000,000
2030 Notes: $850,000,000 2034 Notes: $1,300,000,000 2054 Notes: $1,500,000,000 2064 Notes: $1,000,000,000 |
|
Maturity Date:
|
2027 Notes: April 18, 2027
2030 Notes: January 30, 2030 2034 Notes: April 18, 2034 2054 Notes: April 18, 2054 2064 Notes: April 18, 2064 |
|
Benchmark Treasury:
|
2027 Notes: UST 4.250% due March 15, 2027
2030 Notes: UST 4.125% due March 31, 2029 2034 Notes: UST 4.000% due February 15, 2034 2054 Notes: UST 4.750% due November 15, 2053 2064 Notes: UST 4.750% due November 15, 2053 |
|
Benchmark Treasury Price/Yield:
|
2027 Notes: 99-04+ / 4.566%
2030 Notes: 98-27 / 4.386% 2034 Notes: 97-01+ / 4.372% 2054 Notes: 104-11 / 4.483% 2064 Notes: 104-11 / 4.483% |
|
Spread to Benchmark Treasury:
|
2027 Notes: +65 bps
2030 Notes: +80 bps 2034 Notes: +107 bps 2054 Notes: +127 bps 2064 Notes: +142 bps |
|
Yield to Maturity:
|
2027 Notes: 5.216%
2030 Notes: 5.186% 2034 Notes: 5.442% 2054 Notes: 5.753% 2064 Notes: 5.903% |
*Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject
to revision or withdrawal at any time.
-31-
|
Price to Public:
|
2027 Notes: 99.956% of principal amount, plus accrued interest, if any from April 18, 2024
2030 Notes: 99.830% of principal amount, plus accrued interest, if any from April 18, 2024 2034 Notes: 99.679% of principal amount, plus accrued interest, if any from April 18, 2024 2054 Notes: 99.957% of principal amount, plus accrued interest, if any from April 18, 2024 2064 Notes: 99.954% of principal amount, plus accrued interest, if any from April 18, 2024 |
|
Coupon:
|
2027 Notes: 5.200% per annum
2030 Notes: 5.150% per annum 2034 Notes: 5.400% per annum 2054 Notes: 5.750% per annum 2064 Notes: 5.900% per annum |
|
Interest Payment Dates:
|
2027 Notes: April 18 and October 18, commencing October 18, 2024
2030 Notes: January 30 and July 30, commencing July 30, 2024 2034 Notes: April 18 and October 18, commencing October 18, 2024 2054 Notes: April 18 and October 18, commencing October 18, 2024 2064 Notes: April 18 and October 18, commencing October 18, 2024 |
|
Record Dates:
|
2027 Notes: April 3 and October 3
2030 Notes: January 15 and July 15 2034 Notes: April 3 and October 3 2054 Notes: April 3 and October 3 2064 Notes: April 3 and October 3 |
|
Special Mandatory Redemption
|
If (x) the consummation of the Endeavor merger does not occur on or before the later of (i) the date that is five (5) business days after August 11, 2025 and (ii) the date that is five (5) business days after any later date to which
Endeavor and we may agree to extend the “Outside Date” in the Endeavor merger agreement or (y) we notify the Trustee that we will not pursue the
consummation of the Endeavor merger, we will be required to redeem the mandatorily
redeemable notes at a redemption price equal to 101% of the aggregate principal amount of the mandatorily redeemable notes, plus accrued and
unpaid interest, if any, to, but excluding the special mandatory redemption date. The 2054 Notes are not subject to the special mandatory redemption.
|
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|
Optional Redemption:
|
2027 Notes: At any time prior to March 18, 2027, make whole call as set forth in the preliminary prospectus supplement (treasury rate plus 10 basis points), plus accrued interest to, but not including, the redemption date. At any
time on or after March 18, 2027, at 100% of the principal amount plus accrued interest to the redemption date.
2030 Notes: At any time prior to December 30, 2029, make whole call as set forth in the preliminary prospectus supplement (treasury rate plus 15 basis points), plus accrued interest to, but not including, the redemption date. At any time on or after December 30, 2029, at 100% of the principal amount plus accrued interest to the redemption date. 2034 Notes: At any time prior to January 18, 2034, make whole call as set forth in the preliminary prospectus supplement (treasury rate plus 20 basis points), plus accrued interest to, but not including, the redemption date. At any time on or after January 18, 2034, at 100% of the principal amount plus accrued interest to the redemption date. 2054 Notes: At any time prior to October 18, 2053, make whole call as set forth in the preliminary prospectus supplement (treasury rate plus 20 basis points), plus accrued interest to, but not including, the redemption date. At any time on or after October 18, 2053, at 100% of the principal amount plus accrued interest to the redemption date. 2064 Notes: At any time prior to October 18, 2063, make whole call as set forth in the preliminary prospectus supplement (treasury rate plus 25 basis points), plus accrued interest to, but not including, the redemption date. At any time on or after October 18, 2063, at 100% of the principal amount plus accrued interest to the redemption date. |
| CUSIP/ISIN: |
2027 Notes: 25278X AX7/ US25278XAX75 2030 Notes: 25278X AY5 / US25278XAY58 2034 Notes: 25278X AZ2 / US25278XAZ24 2054 Notes: 25278X BA6 / US25278XBA63 2064 Notes: 25278X BB4 / US25278XBB47 |
| Joint Book-Running Managers: |
Citigroup Global Markets Inc.
BofA Securities, Inc.
TD Securities (USA) LLC
Xxxxxxx Xxxxx & Co. LLC
Xxxxxx Xxxxxxx & Co. LLC
Xxxxx Fargo Securities, LLC
|
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| Senior Co-Managers: |
Barclays Capital Inc.
BOK Financial Securities, Inc.
Capital One Securities, Inc.
Comerica Securities, Inc.
X.X. Xxxxxx Securities LLC
PNC Capital Markets LLC
RBC Capital Markets, LLC
Scotia Capital (USA) Inc.
Truist Securities, Inc.
U.S. Bancorp Investments, Inc.
|
***
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these
documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Citigroup Global
Markets Inc. toll-free at 1-800-831-9146, BofA Securities, Inc. toll-free at 0-000-000-0000 or TD Securities (USA) LLC toll free at 0-000-000-0000.
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