DARDEN RESTAURANTS, INC. (a Florida corporation) UNDERWRITING AGREEMENT September 30, 2024
Exhibit 1.1
XXXXXX RESTAURANTS, INC.
(a Florida corporation)
September 30, 2024
TABLE OF CONTENTS
Page | ||||||
SECTION 1. REPRESENTATIONS AND WARRANTIES | 2 | |||||
(a) |
REPRESENTATIONS AND WARRANTIES BY THE COMPANY | 2 | ||||
(b) |
OFFICER’S CERTIFICATES | 14 | ||||
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING | 14 | |||||
(a) |
NOTES | 14 | ||||
(b) |
PAYMENT | 14 | ||||
(c) |
DENOMINATIONS; REGISTRATION | 15 | ||||
(d) |
NO ADVISORY OR FIDUCIARY RESPONSIBILITY | 15 | ||||
SECTION 3. COVENANTS OF THE COMPANY | 16 | |||||
(a) |
COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS | 16 | ||||
(b) |
REPRESENTATIVES’ REVIEW OF PROPOSED AMENDMENTS AND SUPPLEMENTS | 16 | ||||
(c) |
AMENDMENTS AND SUPPLEMENTS TO THE REGISTRATION STATEMENT, PROSPECTUS AND OTHER SECURITIES ACT MATTERS | 16 | ||||
(d) |
FINAL TERM SHEET | 17 | ||||
(e) |
PERMITTED FREE WRITING PROSPECTUSES | 17 | ||||
(f) |
USE OF PROCEEDS | 18 | ||||
(g) |
NOTICE OF INABILITY TO USE AUTOMATIC SHELF REGISTRATION STATEMENT FORM | 18 | ||||
(h) |
FILING FEES | 18 | ||||
(i) |
DELIVERY OF REGISTRATION STATEMENTS | 18 | ||||
(j) |
DELIVERY OF PROSPECTUSES | 18 | ||||
(k) |
BLUE SKY QUALIFICATIONS | 19 | ||||
(l) |
EARNINGS STATEMENT | 19 | ||||
(m) |
RESTRICTION ON SALE OF DEBT SECURITIES | 19 | ||||
(n) |
LICENSES | 19 | ||||
(o) |
REPORTING REQUIREMENTS | 19 | ||||
SECTION 4. PAYMENT OF EXPENSES | 19 | |||||
(a) |
PAYMENT OF EXPENSES | 19 | ||||
(b) |
TERMINATION OF AGREEMENT | 20 | ||||
SECTION 5. CONDITIONS OF UNDERWRITERS’ OBLIGATIONS | 20 | |||||
(a) |
COMPLIANCE WITH REGISTRATION REQUIREMENTS; NO STOP ORDER | 20 | ||||
(b) |
OPINION OF COUNSEL FOR COMPANY | 21 | ||||
(c) |
OPINION OF COUNSEL FOR UNDERWRITERS | 21 | ||||
(d) |
OFFICERS’ CERTIFICATE | 21 |
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TABLE OF CONTENTS
(continued)
Page | ||||||
(e) |
ACCOUNTANT’S COMFORT LETTER |
22 | ||||
(f) |
BRING DOWN COMFORT LETTER |
22 | ||||
(g) |
RATINGS |
22 | ||||
(h) |
NO OBJECTION |
22 | ||||
(i) |
ADDITIONAL DOCUMENTS |
22 | ||||
(j) |
TERMINATION OF AGREEMENT |
23 | ||||
SECTION 6. INDEMNIFICATION |
23 | |||||
(a) |
INDEMNIFICATION OF UNDERWRITERS |
23 | ||||
(b) |
INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS |
24 | ||||
(c) |
ACTIONS AGAINST PARTIES; NOTIFICATION |
24 | ||||
(d) |
SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE |
25 | ||||
SECTION 7. CONTRIBUTION |
25 | |||||
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY |
27 | |||||
SECTION 9. TERMINATION |
27 | |||||
(a) |
TERMINATION |
27 | ||||
(b) |
LIABILITIES |
27 | ||||
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS | 28 | |||||
SECTION 11. NOTICES | 28 | |||||
SECTION 12. PARTIES | 28 | |||||
SECTION 13. GOVERNING LAW; CONSENT TO JURISDICTION | 29 | |||||
SECTION 14. TRIAL BY JURY | 29 | |||||
SECTION 15. COUNTERPARTS | 29 | |||||
SECTION 16. RECOGNITION OF THE U.S. SPECIAL RESOLUTION REGIMES | 29 | |||||
SECTION 17. EFFECT OF HEADINGS | 30 |
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XXXXXX RESTAURANTS, INC.
(a Florida corporation)
4.350% Senior Notes due 2027
4.550% Senior Notes due 2029
September 30, 2024
BofA Securities, Inc.
One Bryant Park
Truist Securities, Inc.
0000 Xxxxxxxxx Xxxx XX
Atlanta, Georgia 30326
U.S. Bancorp Investments, Inc.
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Charlotte, North Carolina 28202
Xxxxx Fargo Securities, LLC
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Charlotte, North Carolina 28202
As Representatives of the several Underwriters
Ladies and Gentlemen:
Xxxxxx Restaurants, Inc., a Florida corporation (the “Company”), proposes to issue and sell to the several underwriters named in Exhibit A hereto (the “Underwriters”) $400,000,000 aggregate principal amount of the Company’s 4.350% Senior Notes due 2027 (the “2027 Notes”) and $350,000,000 aggregate principal amount of the Company’s 4.550% Senior Notes due 2029 (the “2029 Notes” and, together with the 2027 Notes, the “Notes”). BofA Securities, Inc., Truist Securities, Inc., U.S. Bancorp Investments, Inc. and Xxxxx Fargo Securities, LLC shall be designated and will act as Representatives (the “Representatives”) of the several Underwriters in connection with the offering and sale of the Notes.
To the extent there are no additional Underwriters listed on Exhibit A other than you, the term “Representatives” as used herein shall mean you, as Underwriters, and the term “Underwriters” shall mean you.
The Notes will be issued under an indenture, dated as of January 1, 1996 (the “Indenture”), between the Company and Computershare Trust Company, National Association (as successor to Xxxxx Fargo Bank, National Association, successor to Xxxxx Fargo Bank Minnesota, National Association, formerly known as Norwest Bank Minnesota, National Association), as trustee, as supplemented by the Second Supplemental Indenture, dated as of October 4, 2023, among the Company, Computershare Trust Company, National Association and U.S. Bank Trust Company, National Association, as trustee for the Notes (the “Trustee”).
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“preliminary prospectus.” The term “Prospectus” shall mean the final prospectus supplement relating to the Notes, together with the Base Prospectus, that is first filed pursuant to Rule 424(b) under the Securities Act after the date and time that this Underwriting Agreement is executed and delivered by the parties hereto (the “Execution Time”). At the date of the Prospectus and at the Closing Time (as defined herein), the Prospectus and any amendments and supplements thereto did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the representations and warranties in the preceding sentence shall not apply to statements in or omissions from the Prospectus made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Prospectus, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter through the Representatives consists of the information described as such in Section 6(b) hereof. The Registration Statement, at the time of its effectiveness, each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the Securities Act Regulations (as defined herein), the Applicable Time and the Closing Time, complied and will comply in all material respects with the requirements of the Securities Act and the rules and regulations thereunder (the “Securities Act Regulations”). Each preliminary prospectus and the Prospectus complied or will comply when filed pursuant to Rule 424(b) under the Securities Act in all material respects with the Securities Act and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Notes will, at the time of such delivery, conform to any electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except for format and other variations permitted or required by Regulation S-T. Any reference herein to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act; any reference to any amendment or supplement to any preliminary prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such preliminary prospectus or Prospectus, as the case may be, under the Exchange Act, and incorporated by reference in such preliminary prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement.
For purposes of this Underwriting Agreement, all references to (i) the Indenture shall be deemed to include, as applicable, any indenture supplemental thereto, and (ii) the financial statements and schedules and other information which is “contained,” “included,” “referred to” or “stated” (or other references of like import) in the Registration Statement, the Disclosure Package (as defined below), the Prospectus or any preliminary prospectus shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement, the Disclosure Package, the Prospectus or such preliminary prospectus, as the case may be.
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(ii) DISCLOSURE PACKAGE. The term “Disclosure Package” shall mean (i) the preliminary prospectus most recently available prior to the Applicable Time, (ii) the Issuer Free Writing Prospectus (as defined below) identified in Item (1) of Exhibit B hereto, and (iii) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. As of 3:45 p.m. (Eastern time) on the date of this Underwriting Agreement (the “Applicable Time”), the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the representations and warranties in this subsection shall not apply to statements in or omissions from the Disclosure Package made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter through the Representatives consists of the information described as such in Section 6(b) hereof. As used herein, an “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 under the Securities Act, including without limitation any “free writing prospectus” (as defined in Rule 405 under the Securities Act) relating to the Notes that is (i) required to be filed with the Commission by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Notes or of the offering that does not reflect the final terms, in each case 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).
(iv) COMPANY IS WELL-KNOWN SEASONED ISSUER. (A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Securities Act, and (D) at the Execution Time (with
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such date being used as the determination date for purposes of this clause (D)), the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration statement form.
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(xi) GOOD STANDING OF THE COMPANY. The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Florida and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under, or as contemplated under, this Underwriting Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or be in good standing would not result in a Material Adverse Effect.
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(xii) GOOD STANDING OF SUBSIDIARIES. Each material subsidiary (as set forth on Annex I hereto, each a “Material Subsidiary” and, collectively, the “Material Subsidiaries”) of the Company has been duly formed and is validly existing as a legal entity in good standing under the laws of its jurisdiction of formation, has power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and is duly qualified as a foreign legal entity to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or be in good standing would not result in a Material Adverse Effect. Except as otherwise stated in the Registration Statement, the Disclosure Package and the Prospectus, all of the issued and outstanding capital stock of, or equity interest in, as applicable, each such Material Subsidiary has been duly authorized and is validly issued, fully paid and non-assessable and is owned by the Company, directly or through Material Subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xiii) CAPITALIZATION. The authorized, issued and outstanding shares of capital stock of the Company are as set forth in the Registration Statement, the Disclosure Package and the Prospectus (except for subsequent issuances or repurchases thereof, if any, (A) contemplated under this Underwriting Agreement, (B) pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus and the Disclosure Package or (C) pursuant to the exercise of convertible securities or options referred to in the Prospectus and the Disclosure Package). The outstanding shares of capital stock of the Company have been duly authorized and validly issued by the Company and are fully paid and non assessable. None of the outstanding shares of capital stock of the Company were issued in violation of the preemptive or other similar rights of any securityholder of the Company.
(xiv) AUTHORIZATION OF THIS UNDERWRITING AGREEMENT. This Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(xv) AUTHORIZATION OF NOTES. The Notes have been duly authorized by the Company for issuance and sale pursuant to this Underwriting Agreement. Such Notes, when issued and authenticated in the manner provided for in the Indenture and delivered against payment of the consideration therefor specified in this Underwriting Agreement, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general principles of equity. Such Notes will be in the form contemplated by, and each registered holder thereof is entitled to the benefits of, the Indenture.
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(xix) ABSENCE OF PROCEEDINGS. There is not an action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending or, to the knowledge of the Company, threatened, against the Company or any of its Subsidiaries which is required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus (other than as stated therein), or which might reasonably be expected to result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the consummation of the transactions contemplated under this Underwriting Agreement or the Indenture or the performance by the Company of its obligations hereunder and thereunder. The aggregate of all pending legal or governmental proceedings to which the Company or any of its Subsidiaries is a party or of which any of their respective assets, properties or operations is the subject which are not described in the Registration Statement, the Disclosure Package or the Prospectus, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a Material Adverse Effect.
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(xxiii) NO CONFLICT WITH OFAC LAWS. None of the Company, any of its subsidiaries or, to the best knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is (A) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, His Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”) or (B) located, organized or resident in a country or territory that is the subject of Sanctions (a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the sale of the Notes, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partner or other person or entity, for the purpose of (i) financing the activities of or business with any person, or in a country or territory, that, at the time of such funding, is the subject of Sanctions; (ii) funding or facilitating any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person or entity (including any person or entity participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(xxiv) ACCURACY OF EXHIBITS. There are no contracts or documents which are required to be described in the Registration Statement, the Prospectus, the Disclosure Package or the documents incorporated by reference therein or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.
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(collectively, “Intellectual Property”) necessary to carry on the business now operated by them, except where the failure to possess or acquire would not, singly or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its Material Subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its Material Subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect.
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(xxx) ENVIRONMENTAL LAWS. Except as otherwise stated in the Disclosure Package and the Prospectus and except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its Material Subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and its Material Subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or, to the Company’s knowledge, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of its Material Subsidiaries and (D) to the Company’s knowledge, there are no events or circumstances that might reasonably be expected to form the basis of an order for clean up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of its Material Subsidiaries relating to Hazardous Materials or any Environmental Laws.
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(xxxii) NO MATERIAL WEAKNESS IN INTERNAL CONTROLS. Except as disclosed in the Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(xxxvi) COMPANY NOT AN “INVESTMENT COMPANY.” The Company has been advised of the rules and requirements under the Investment Company Act of 1940, as amended (the “Investment Company Act”). The Company is not, and upon the issuance and sale of the Notes and the application of the proceeds thereof as described in the Disclosure Package and the Prospectus will not be, required to register as an “investment company” within the meaning of the Investment Company Act.
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(xxxix) CYBERSECURITY. (A) There has been no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Company’s or its subsidiaries’ information technology and computer systems, networks, hardware, software, data and databases (including the data and information of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Company and its subsidiaries, and any such data processed or stored by third parties on behalf of the Company and its subsidiaries), equipment or technology (collectively, “IT Systems and Data”), except for those that have not, individually or in the aggregate, had a Material Adverse Effect; (B) neither the Company nor its subsidiaries have been notified of, and each of them have no knowledge of any event or condition that could result in, any security breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data, except for those that have not, individually or in the aggregate, had a Material Adverse Effect and (C) the Company and its subsidiaries have implemented appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards. The Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(b) PAYMENT. Payment of the purchase price for, and delivery of certificates for, the Notes shall be made at the offices of Xxxxxxxxx LLP, New York, New York, or at such other place as shall be agreed upon by the Representatives and the Company, at 10:00 A.M. (Eastern time) on October 3, 2024 (unless postponed in accordance with the provisions of Section 10 hereof), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called “Closing Time”).
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Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company, against delivery to the Representatives for the respective accounts of the Underwriters of the Notes to be purchased by them. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Notes which it has severally agreed to purchase. The Representatives, individually and not as Representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Notes to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder.
(c) DENOMINATIONS; REGISTRATION. The Notes shall be in such denominations and registered in such names as the Representatives may request in writing at least two full business days before the Closing Time. The Notes will be made available for examination and packaging by the Representatives in New York, New York, or at such other place as shall be agreed upon by the Representatives and the Company, not later than 9:00 A.M. (Eastern time) on the business day prior to the Closing Time.
This Underwriting Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the several Underwriters, or any of them, with respect to the subject matter of this Section 2(d).
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SECTION 3. COVENANTS OF THE COMPANY.
The Company covenants with the Representatives and with each Underwriter participating in the offering of Notes, as follows:
(c) AMENDMENTS AND SUPPLEMENTS TO THE REGISTRATION STATEMENT, PROSPECTUS AND OTHER SECURITIES ACT MATTERS. The Company will comply with the Securities Act and the Exchange Act so as to permit the completion of the distribution of the Notes as contemplated in this Underwriting Agreement and in the Registration Statement and the Prospectus. If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances existing at the time the Disclosure Package or the Prospectus is delivered to a purchaser, not misleading, or if it shall be necessary to amend or supplement the Disclosure Package or the
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Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances existing at the time the Disclosure Package or the Prospectus is delivered to a purchaser, not misleading, or if in the opinion of the Representatives or their counsel it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and (ii) promptly prepare (subject to Section 3(b) and Section 3(e) hereof), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or any new registration statement to be declared or to become effective) and furnish at its own expense to the Underwriters and to dealers, amendments or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus as so amended or supplemented, in the light of the circumstances existing at the time the Disclosure Package or the Prospectus is delivered to a purchaser, not misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(e) PERMITTED FREE WRITING PROSPECTUSES. The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Securities Act; provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the free writing prospectuses (within the meaning of Rule 433 under the Securities Act) listed in Exhibit B hereto, including any electronic roadshow listed in Exhibit B hereto. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus”. The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Notes or their offering, (ii) information permitted by Rule 134 under the Securities Act or (iii) information that describes the final terms of the Notes or their offering and that is included in the Final Term Sheet of the Company contemplated in Section 3(d); provided, that each Underwriter severally covenants with the Company not to take any action without the Company’s prior consent that would result in the Company being required to file with the Commission under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
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(k) BLUE SKY QUALIFICATIONS. The Company will use its reasonable best efforts, in cooperation with the Underwriters, to qualify the Notes for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may designate and to maintain such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, up to one year from the date of this Underwriting Agreement; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a broker or dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
SECTION 4. PAYMENT OF EXPENSES.
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Company’s counsel, accountants and other advisors or agents (including transfer agents and registrars), as well as the reasonable fees and disbursements of any Trustees and their respective counsel, (v) the qualification of the Notes under state securities laws in accordance with the provisions of Section 3(k) hereof, including filing fees and the reasonable fees and disbursements of a single counsel for the Underwriters in connection therewith and in connection with the preparation, printing and delivery of the Blue Sky Survey and any Legal Investment Survey, and any amendment thereto, (vi) the printing and delivery to the Underwriters of copies of each preliminary prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto, (vii) the fees charged by nationally recognized statistical rating organizations for the rating of the Notes, if applicable, (viii) the fees and expenses incurred with respect to the listing of the Notes, if applicable, (ix) the filing fees incident to, and the reasonable fees and disbursements of a single counsel to the Underwriters in connection with, the review, if any, by the Financial Industry Regulatory Authority Inc. (“FINRA”) of the terms of the sale of the Notes and (x) the fees and expenses of any Underwriter acting in the capacity of a “qualified independent underwriter” (as defined in the bylaws of FINRA), if applicable. It is understood, however, that except as provided in this Section 4, and in Sections 6 and 7 hereof, the Underwriters will be responsible for all their own costs and expenses, including the fees of their counsel, any transfer taxes on the Notes upon resale by them and all other expenses incurred by them in connection with any offering of the Notes made by the Underwriters.
(i) the Company shall have filed any preliminary prospectus and the Prospectus with the Commission (including the Rule 430B Information) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective;
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(ii) the Company shall have filed with the Commission any Issuer Free Writing Prospectus and any other issuer information to the extent and within the time periods required by Rule 433 under the Securities Act;
(iii) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or threatened by the Commission, and the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction; and
(iv) the Company shall have paid the required Commission filing fees relating to the Notes within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the Representatives shall have received the favorable opinion letter, dated as of Closing Time, of Xxxxxxxxx LLP, counsel for the Underwriters, substantially to the effect set forth in opinion paragraph 6 (as to the accuracy of the information in the Disclosure Package and the Prospectus under “Description of Debt Securities” and “Description of Notes”), and opinion paragraphs 8 and 9 (as to the validity and enforceability of the Indenture and Notes) included in Exhibit D-1 hereto, and with respect to the Registration Statement and the Prospectus, in form and substance satisfactory to the Representatives. In giving such letter, such counsel may limit its opinions set forth therein to matters governed by the laws of the State of New York and the federal laws of the United States. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
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Material Adverse Effect, (ii) the representations and warranties in Section 1 are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to such officer’s knowledge, threatened by the Commission.
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(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430B Information deemed to be a part thereof, if applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, any Issuer Free Writing Prospectus, the Disclosure Package or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
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provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto), including the Rule 430B Information, any preliminary prospectus, any Issuer Free Writing Prospectus, the Disclosure Package or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter through the Representatives consists of the information described as such in Section 6(b) hereof.
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and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and local counsel) if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest in the reasonable judgment of the indemnified party, (ii) the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall have authorized the indemnified party to employ separate counsel at the expense of the indemnifying party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
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the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Notes pursuant to this Underwriting Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of such Notes (before deducting expenses) received by the Company and the total underwriting discount received by the Underwriters, in each case as set forth on the cover of the Prospectus, bear to the aggregate public offering price of such Notes as set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Notes underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the number or aggregate principal amount, as the case may be, of Notes set forth opposite their respective names in Exhibit A hereto and not joint.
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(a) TERMINATION. The Representatives may terminate this Underwriting Agreement, by notice to the Company, at any time at or prior to the Closing Time, if (i) there has been, in the judgment of the Representatives, since the Execution Time or since the respective dates as of which information is given in the Disclosure Package, a Material Adverse Effect, or (ii) there has occurred, since the Execution Time, any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or there has occurred any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to market the Notes or to enforce contracts for the sale of the Notes, or (iii) trading in any securities of the Company has been suspended or materially limited by the Commission or any national securities exchange or quotation system on which the Company’s common stock is listed or quoted, or if trading generally on the New York Stock Exchange, NYSE American LLC or the Nasdaq Stock Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of such exchanges or by such system or by order of the Commission, FINRA or any other governmental authority, or (iv) a banking moratorium has been declared by federal, New York or North Carolina authorities, or (v) there has occurred a material disruption in commercial banking or securities settlement or clearance services, or (vi) there is any downgrading in the rating accorded the Notes by any “nationally recognized statistical rating organization” as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act or if any such rating organization shall have publicly announced that it has placed any of such Notes on what is commonly termed a “watch list” for possible downgrading.
(b) LIABILITIES. If this Underwriting Agreement is terminated pursuant to this Section 9, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8 and 13 shall survive such termination and remain in full force and effect.
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SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail at the Closing Time to purchase the Notes which it or they are obligated to purchase under this Underwriting Agreement (the “Defaulted Securities”), then the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24 hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of Defaulted Securities does not exceed 10% of the number or aggregate principal amount, as the case may be, of Notes to be purchased on such date pursuant to this Underwriting Agreement, the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations under this Underwriting Agreement bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be, of Defaulted Securities exceeds 10% of the number or aggregate principal amount, as the case may be, of Notes to be purchased on such date pursuant to this Underwriting Agreement, this Underwriting Agreement shall terminate without liability on the part of any non-defaulting Underwriter or on the part of the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 4 and the indemnification and contribution provisions in Sections 6 and 7 hereof.
No action taken pursuant to this Section 10 shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this Underwriting Agreement, either the Representatives or the Company shall have the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the Disclosure Package or the Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representatives in care of BofA Securities, Inc., 000 Xxxx 00xx Xxxxxx XX0-000-07-01, New York, New York 10036, Attention: High Grade Debt Capital Markets Transaction Management/Legal, fax: 000-000-0000; Truist Securities, Inc., 0000 Xxxxxxxxx Xxxx, XX, Xxxxxxx, Xxxxxxx 00000, fax: 000-000-0000, Attention: Investment Grade Debt Capital Markets; U.S. Bancorp Investments, Inc. at c/o U.S. Bancorp Investments, Inc. 000 X. Xxxxx Xx., 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Credit Fixed income, facsimile: 000-000-0000; and Xxxxx Fargo Securities, LLC at c/x Xxxxx Fargo Securities, LLC, 000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Transaction Management, Email: xxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx. Notices to the Company shall be directed to the Company at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, attention of Senior Vice President, General Counsel and Secretary.
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and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Underwriting Agreement or any provision herein contained. This Underwriting Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties hereto and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Notes from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. RECOGNITION OF THE U.S. SPECIAL RESOLUTION REGIMES.
(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 Underwriting Agreement, and any interest and obligation in or under this Underwriting Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Underwriting Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(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 Underwriting 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 Underwriting Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 16, a “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
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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 page follows)
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this Underwriting Agreement, along with all counterparts, will become a binding agreement between the Representatives and the Company in accordance with its terms.
Very truly yours, | ||
XXXXXX RESTAURANTS, INC. | ||
By: | /s/ Xxxxx X. Xxxxxx | |
Name: | Xxxxx X. Xxxxxx | |
Title: | Vice President and Treasurer |
CONFIRMED AND ACCEPTED,
as of the date first above written:
BOFA SECURITIES, INC.
TRUIST SECURITIES, INC.
U.S. BANCORP INVESTMENTS, INC.
XXXXX FARGO SECURITIES, LLC
As Representatives and on behalf of the several Underwriters | ||
BOFA SECURITIES, INC. | ||
By: | /s/ Xxxxxxxxxxx Xxxx | |
Name: | Xxxxxxxxxxx Xxxx | |
Title: | Managing Director | |
TRUIST SECURITIES, INC. | ||
By: | /s/ Xxxxxx Xxxxxxxxxx | |
Name: | Xxxxxx Xxxxxxxxxx | |
Title: | Authorized Signatory | |
U.S. BANCORP INVESTMENTS, INC. | ||
By: | /s/ Xxxxx Xxxxxxxxx | |
Name: | Xxxxx Xxxxxxxxx | |
Title: | Managing Director |
[Signature Page to Underwriting Agreement]
XXXXX FARGO SECURITIES, LLC | ||
By: | /s/ Xxxxxxx Xxxxxx | |
Name: | Xxxxxxx Xxxxxx | |
Title: | Managing Director |
[Signature Page to Underwriting Agreement]
EXHIBIT A
Aggregate Principal Amount of 2027 Notes to be Purchased |
Aggregate Principal Amount of 2029 Notes to be Purchased |
|||||||
BofA Securities, Inc. |
$ | 100,000,000 | $ | 87,500,000 | ||||
Truist Securities, Inc. |
64,400,000 | 56,350,000 | ||||||
U.S. Bancorp Investments, Inc. |
64,400,000 | 56,350,000 | ||||||
Xxxxx Fargo Securities, LLC |
64,400,000 | 56,350,000 | ||||||
Mizuho Securities USA LLC |
30,000,000 | 26,250,000 | ||||||
TD Securities (USA) LLC |
30,000,000 | 26,250,000 | ||||||
PNC Capital Markets LLC |
21,200,000 | 18,550,000 | ||||||
Scotia Capital (USA) Inc. |
18,000,000 | 15,750,000 | ||||||
Xxxxxxx Xxxxx & Co. LLC |
7,600,000 | 6,650,000 | ||||||
|
|
|
|
|||||
Total |
$ | 400,000,000 | $ | 350,000,000 | ||||
|
|
|
|
A-1
EXHIBIT B
ISSUER FREE WRITING PROSPECTUSES
(1) | Final Term Sheet dated September 30, 2024 (attached as Exhibit C hereto) |
(2) | Electronic (NetRoadshow) road show of the Company dated September 2024 |
B-1
EXHIBIT C
XXXXXX RESTAURANTS, INC.
FINAL TERM SHEET
4.350% Senior Notes due 2027
4.550% Senior Notes due 2029
Dated: September 30, 2024
4.350% Senior Notes due 2027 (the “2027 Notes”) |
4.550% Senior Notes due 2029 (the “2029 Notes”) | |||
Issuer: | Xxxxxx Restaurants, Inc. | |||
Trade Date: | September 30, 2024 | |||
Settlement Date:* | October 3, 2024 (T+3) | |||
Expected Ratings:** | [intentionally omitted] | |||
Principal Amount: | $400,000,000 | $350,000,000 | ||
Maturity Date: | October 15, 2027 | October 15, 2029 | ||
Interest Payment Dates: | April 15 and October 15, beginning April 15, 2025 |
April 15 and October 15, beginning April 15, 2025 | ||
Coupon (Interest Rate): | 4.350% | 4.550% | ||
Benchmark Treasury: | 3.375% due September 15, 2027 | 3.500% due September 30, 2029 | ||
Benchmark Treasury Price / Yield: | 99-15 3⁄4 / 3.557% | 99-21+ / 3.572% | ||
Spread to Benchmark Treasury: | +80 basis points | +102 basis points | ||
Yield to Maturity: | 4.357% | 4.592% | ||
Price to Public: | 99.979% of the principal amount | 99.811% of the principal amount | ||
Optional Redemption: Make-Whole Call: |
Prior to September 15, 2027 (the “2027 Par Call Date”), the Issuer may redeem the 2027 Notes, at its option, in whole at any time or in part from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (1)(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2027 Notes matured on the 2027 Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points, less (b) interest accrued to, but excluding, the date of redemption, and (2) 100% of the principal amount of the 2027 Notes to be redeemed, plus, in either case, accrued and unpaid interest thereon to, but excluding, the date of redemption. |
Prior to September 15, 2029 (the “2029 Par Call Date”), the Issuer may redeem the 2029 Notes, at its option, in whole at any time or in part from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (1)(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2029 Notes matured on the 2029 Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points, less (b) interest accrued to, but excluding, the date of redemption, and (2) 100% of the principal amount of the 2029 Notes to be redeemed, plus, in either case, accrued and unpaid interest thereon to, but excluding, the date of redemption. |
C-1
Par Call: | On or after the 2027 Par Call Date, the Issuer may redeem the 2027 Notes, at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the 2027 Notes to be redeemed, plus accrued and unpaid interest thereon to the date of redemption. | On or after the 2029 Par Call Date, the Issuer may redeem the 2029 Notes, at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the 2029 Notes to be redeemed, plus accrued and unpaid interest thereon to the date of redemption. | ||
Special Mandatory Redemption: | Not applicable. | Upon the occurrence of a Special Mandatory Redemption Trigger (as described in the Preliminary Prospectus Supplement dated September 30, 2024), the Issuer will be required to redeem the 2029 Notes, in whole, at a special mandatory redemption price equal to 101% of the aggregate principal amount of the 2029 Notes being redeemed, plus accrued and unpaid interest, if any, on the aggregate principal amount of the 2029 Notes being redeemed to, but excluding, the date of such redemption. | ||
Repurchase at the Option of Holders upon a Change of Control Triggering Event: | The 2027 Notes will be subject to repurchase at the option of the holders at a purchase price of 101% of the principal amount thereof plus accrued and unpaid interest if the Issuer experiences a Change of Control Triggering Event. | The 2029 Notes will be subject to repurchase at the option of the holders at a purchase price of 101% of the principal amount thereof plus accrued and unpaid interest if the Issuer experiences a Change of Control Triggering Event. | ||
CUSIP / ISIN: | 237194 AP0 / US237194AP05 | 237194 AQ8 / US237194AQ87 | ||
Joint Book-Running Managers: | BofA Securities, Inc. Truist Securities, Inc. U.S. Bancorp Investments, Inc. Xxxxx Fargo Securities, LLC | |||
Co-Managers: | Mizuho Securities USA LLC TD Securities (USA) LLC PNC Capital Markets LLC Scotia Capital (USA) Inc. Xxxxxxx Xxxxx & Co. LLC |
C-2
* | It is expected that delivery of the notes will be made against payment therefor on or about October 3, 2024 which is the third trading day following the date hereof (such settlement cycle being referred to as T+3). Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in one business day unless the parties to any such trade expressly agree otherwise. Purchasers of the notes should note that the ability to settle secondary market trades of the notes effected on any date prior to the first business day before the settlement date may be affected by the T+3 settlement. Accordingly, purchasers who wish to trade the notes on any date prior to the first business day before the settlement date will be required to specify an alternative settlement cycle at the time of any such trade to prevent a failed settlement and should consult their own legal advisors. |
** | 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. |
Capitalized terms used and not defined herein have the meanings assigned in the Issuer’s Preliminary Prospectus Supplement, dated September 30, 2024.
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 BofA Securities, Inc. at 0-000-000-0000, Truist Securities, Inc. at 0-000-000-0000, U.S. Bancorp Investments, Inc. at 0-000-000-0000 or Xxxxx Fargo Securities, LLC at 0-000-000-0000.
C-3
EXHIBIT D-1
FORM OF OPINION OF XXXXXX XXXXXXX XXXXX LLP, COUNSEL FOR
THE COMPANY, TO BE DELIVERED PURSUANT TO SECTION 5(b)
[Omitted]
D-1-1
EXHIBIT D-2
FORM OF OPINION OF XXXXXXX X. XXXXXX, SENIOR VICE PRESIDENT,
ASSOCIATE GENERAL COUNSEL — SECURITIES AND FINANCE FOR THE
COMPANY, TO BE DELIVERED PURSUANT TO SECTION 5(b)
[Omitted]
D-2-1
ANNEX I
Schedule of Material Subsidiaries
1. | Xxxxxx Corporation, a Delaware corporation |
2. | Capital Grille Holdings, Inc., a North Carolina corporation, doing business as The Capital Grille |
3. | Xxxxxxx’s Casual Cafe, Inc., a Delaware corporation, doing business as Xxxxxxx’s Scratch Kitchen |
4. | Cheddar’s Restaurant Holding Corp., a Delaware corporation |
5. | GMRI, Inc., a Florida corporation, doing business as Olive Garden, Bahama Breeze and Seasons 52 |
6. | N and D Restaurants, LLC, a Florida limited liability company, doing business as Olive Garden |
7. | Olive Garden of Texas, LLC, a Texas limited liability company, doing business as Olive Garden |
8. | RARE Hospitality International, Inc., a Georgia corporation, doing business as LongHorn Steakhouse and Olive Garden |
9. | Ruth’s Hospitality Group, Inc., a Delaware corporation |
10. | Yard House USA, Inc., a Delaware corporation, doing business as Yard House |
A I-1