Exhibit 1.1
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XXXXXX RESTAURANTS, INC.
(a Florida corporation)
UNDERWRITING AGREEMENT
August ___, 2000
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TABLE OF CONTENTS
Page
SECTION 1. Representations and Warranties....................................3
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY........................3
(b) OFFICER'S CERTIFICATES...............................................11
SECTION 2. Sale and Delivery to Underwriters; Closing........................11
(a) UNDERWRITTEN SECURITIES..............................................11
(b) PAYMENT..............................................................12
(c) DENOMINATIONS; REGISTRATION..........................................12
SECTION 3. Covenants of the Company..........................................12
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.......12
(b) FILING OF AMENDMENTS.................................................13
(c) DELIVERY OF REGISTRATION STATEMENTS..................................13
(d) DELIVERY OF PROSPECTUSES.............................................13
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS............................14
(f) BLUE SKY QUALIFICATIONS..............................................14
(g) EARNINGS STATEMENT...................................................14
(h) REPORTS TO SECURITYHOLDERS...........................................14
(i) USE OF PROCEEDS......................................................15
(j) LISTING..............................................................15
(k) RESTRICTION ON SALE OF SECURITIES....................................15
(l) REPORTING REQUIREMENTS...............................................15
SECTION 4. Payment of Expenses...............................................15
(a) EXPENSES.............................................................15
(b) TERMINATION OF AGREEMENT.............................................16
SECTION 5. Conditions of Underwriters' Obligations...........................16
(a) EFFECTIVENESS OF REGISTRATION STATEMENT..............................16
(b) OPINION OF COUNSEL FOR COMPANY.......................................16
(c) OPINION OF COUNSEL FOR UNDERWRITERS..................................17
(d) OFFICERS' CERTIFICATE................................................17
(e) ACCOUNTANT'S COMFORT LETTER..........................................17
(f) BRING-DOWN COMFORT LETTER............................................18
(g) RATINGS..............................................................18
(h) APPROVAL OF LISTING..................................................18
(i) NO OBJECTION.........................................................18
(j) LOCK-UP ARRANGEMENTS.................................................18
(k) ADDITIONAL DOCUMENTS.................................................19
(l) TERMINATION OF TERMS AGREEMENT.......................................19
SECTION 6. Indemnification...................................................19
(a) INDEMNIFICATION OF UNDERWRITERS......................................19
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS...................20
(c) ACTIONS AGAINST PARTIES; NOTIFICATION................................20
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE...................21
SECTION 7. Contribution......................................................22
SECTION 8. Representations, Warranties and Agreements To Survive Delivery....23
SECTION 9. Termination.......................................................23
(a) UNDERWRITING AGREEMENT...............................................23
(b) TERMINATION; GENERAL.................................................23
(c) LIABILITIES..........................................................24
SECTION 10. Default by One or More of the Underwriters........................24
SECTION 11. Notices...........................................................25
SECTION 12. Parties...........................................................25
SECTION 13. Governing Law and Time............................................25
SECTION 14. Effect of Headings................................................26
XXXXXX RESTAURANTS, INC.
(a Florida corporation)
Debt Securities
UNDERWRITING AGREEMENT
August ___, 2000
To the Representative of the
several Underwriters named in the
Terms Agreement
hereinafter described
Ladies and Gentlemen:
Xxxxxx Restaurants, Inc., a Florida corporation (the "Company"),
proposes to issue and sell up to $500,000,000 aggregate initial public offering
price of its debt securities (the "Debt Securities"), from time to time, in or
pursuant to one or more offerings on terms to be determined at the time of sale.
The Debt Securities will be issued in one or more series under an
indenture, dated as of January 1, 1996 (the "Indenture"), between the Company
and Xxxxx Fargo Bank Minnesota, National Association (formerly known as Norwest
Bank Minnesota, National Association), as trustee (the "Trustee"). Each series
of Debt Securities may vary, as applicable, as to title, aggregate principal
amount, rank, interest rate or formula and timing of payments thereof, stated
maturity date, redemption and/or payment provisions, sinking fund requirements,
guarantors and any other variable terms established by or pursuant to the
applicable Indenture. As used herein, "Securities" shall mean the Debt
Securities initially issuable by the Company.
Whenever the Company determines to make an offering of Securities, the
Company will enter into an agreement (each, a "Terms Agreement") providing for
the sale of such Securities to, and the purchase and offering thereof by, the
underwriters named in the applicable Terms Agreement (the "Underwriters," which
term shall include any Underwriter substituted pursuant to Section 10 hereof),
for whom the firm (or firms) designated as representative of the Underwriters of
such Underwritten Securities in the Terms Agreement relating thereto will act as
representative (the "Representative"). The Terms Agreement relating to the
offering of Securities shall specify the aggregate principal amount, as the case
may be, of Securities to be issued (the "Underwritten Securities"), the name of
each Underwriter participating in such offering (subject to substitution as
provided in Section 10 hereof) and the name of any Underwriter(s) acting as
co-manager in connection with such offering, the aggregate principal amount, as
the case may be, of Underwritten Securities which each such Underwriter
severally agrees to purchase, whether such offering is on a fixed or variable
price basis and, if on a fixed price basis, the initial offering price, the
price at which the Underwritten Securities are to be purchased by the
Underwriters, the form, time, date and place of delivery and payment of the
Underwritten Securities and any other material variable terms of the
Underwritten Securities. The Terms Agreement, which shall be substantially in
the form of EXHIBIT A hereto, may take the form of an exchange of any standard
form of written telecommunication between the Company and the Representative,
acting for itself and, if applicable, as representative of any other
Underwriters. Each offering of Underwritten Securities will be governed by this
Underwriting Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-41350) for the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), and the Company has filed such post-effective amendments
thereto as may be required prior to the execution of the applicable Terms
Agreement. Such registration statement (as so amended, if applicable) has been
declared effective by the Commission and each Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act regulations (the "Rule 430A Information") or Rule 434(d) of the 1933
Act Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement;" and the final prospectus and the final prospectus
supplement relating to the offering of the Underwritten Securities, in the form
first furnished to the Underwriters by the Company for use in connection with
the offering of the Underwritten Securities, are collectively referred to herein
as the "Prospectus;" PROVIDED, HOWEVER, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; PROVIDED FURTHER, that if the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then, after such filing,
all references to "Registration Statement" shall also be deemed to include the
Rule 462(b) Registration Statement; and PROVIDED FURTHER, that if the Company
elects to rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references in
this Underwriting Agreement to the date of the Prospectus shall mean the date of
the Term Sheet. A "preliminary prospectus" shall be deemed to refer to (i) any
prospectus used in connection with the offering of the Underwritten Securities
before the registration statement became effective and (ii) any prospectus that
omitted, as applicable, the Rule 430A Information, the Rule 434
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Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the applicable Terms Agreement. For purposes of this
Underwriting Agreement, all references to (i) the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX"), (ii) the Indenture shall be deemed to include, as
applicable, any indenture supplemental thereto, and (iii) the Representative
shall be deemed to include, as applicable, all such Representatives if there
shall be more than one Representative.
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included," "referred
to" or "stated" (or other references of like import) in the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to mean and
include all such financial statements and schedules and other information which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
SECTION 1. Representations and Warranties.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to the Representative, as of the date hereof, and to
each Underwriter named in the applicable Terms Agreement, as of the date
thereof, as of the Closing Time (as defined below) and, if applicable, as of
each Date of Delivery (as defined below) (in each case, a "Representation
Date"), as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. In addition, the Indenture has been duly qualified under the 1939
Act. At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at each Representation Date, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the
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Commission under the 1939 Act (the "1939 Act Regulations") and did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. At the date of the Prospectus, at the Closing Time and at each
Date of Delivery, if any, the Prospectus and any amendments and supplements
thereto did not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. If
the Company elects to rely upon Rule 434 of the 1933 Act Regulations, the
Company will comply with the requirements of Rule 434. Notwithstanding the
foregoing, the representations and warranties in this subsection shall not apply
to the Statement of Eligibility of the Trustee on Form T-1 or statements in or
omissions from the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the Company in writing by
any Underwriter through the Representative expressly for use in the Registration
Statement or Prospectus. Each preliminary prospectus and the prospectus filed as
part of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied
when so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for use
in connection with the offering of Underwritten Securities will, at the time of
such delivery, be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except for format and other
variations permitted or required by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus
(including the filing of the Company's most recent Annual Report on Form 10-K
with the Commission (the "Annual Report on Form 10-K")), at the time they were
or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations") and, when
read together with the other information in the Prospectus, at the date of the
Prospectus, at the Closing Time and at each Date of Delivery, if any, did not
and will not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements of the Company
included in the Registration Statement and the Prospectus, together with the
related schedules and notes, as well as those financial statements, schedules
and notes of any other entity included therein, present fairly the financial
position of the Company and its consolidated subsidiaries, or such
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other entity, as the case may be, at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries, or such other entity, as the case may be, for the
periods specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement and the Prospectus present fairly in
accordance with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the Prospectus,
if any, present fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements included in the
Registration Statement and the Prospectus. In addition, any pro forma financial
statements of the Company and its subsidiaries and the related notes thereto
included in the Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial statements
and have been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no material
adverse change in the condition (financial or otherwise), earnings, assets,
properties, operations, or business, or to the knowledge of the Company in the
business prospects, of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the ordinary course
of business, which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except for regular dividends on the
Company's common stock or preferred stock, in amounts per share that are
consistent with past practice, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of the
State of Florida and has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under, or as contemplated under, this
Underwriting Agreement and the applicable Terms Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. Each material subsidiary (as set
forth on Annex I, each a "Material Subsidiary and, collectively, the "Material
Subsidiaries") of the Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly
5
qualified as a foreign corporation 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 and the Prospectus, all of the issued and outstanding capital stock of
each such Material Subsidiary has been duly authorized and is validly issued,
fully paid and non-assessable and is owned by the Company, directly or through
Material Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding shares of
capital stock of any Material Subsidiary was issued in violation of preemptive
or other similar rights of any securityholder of such Material Subsidiary.
(viii) CAPITALIZATION. If the Prospectus contains a "Capitalization"
section, the authorized, issued and outstanding shares of capital stock of the
Company is, to the extent set forth in such section as of May 28, 2000, as set
forth in the column entitled "Actual" under such section (except for subsequent
issuances or repurchases thereof, if any, (A) contemplated under this
Underwriting Agreement, (B) pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectus, (C) pursuant to the exercise of
convertible securities or options referred to in the Prospectus, or (D) which
are not in excess of 3 percent of the Company's outstanding common stock, in the
aggregate). The shares of capital stock of the Company have been duly authorized
and validly issued by the Company and are fully paid and non-assessable; and
none of such shares of capital stock was issued in violation of preemptive or
other similar rights of any securityholder of the Company.
(ix) AUTHORIZATION OF THIS UNDERWRITING AGREEMENT AND TERMS AGREEMENT.
This Underwriting Agreement has been, and the applicable Terms Agreement as of
the date thereof will have been, duly authorized, executed and delivered by the
Company.
(x) AUTHORIZATION OF DEBT SECURITIES. The Underwritten Securities have
been, or as of the date of such Terms Agreement will have been, duly authorized
by the Company for issuance and sale pursuant to this Underwriting Agreement and
such Terms Agreement. Such Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the consideration therefor specified in such Terms
Agreement, will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity. Such Underwritten Securities will be in the form
contemplated by, and each registered holder thereof is entitled to the benefits
of, the applicable Indenture.
(xi) AUTHORIZATION OF THE INDENTURE. The Indenture has been, or prior
to the issuance of the Debt Securities thereunder will have been, duly
authorized, executed and delivered by the Company and, upon such authorization,
execution and delivery, will constitute a valid and legally binding agreement of
the Company, enforceable against the Company in
6
accordance with its terms , subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity.
(xii) DESCRIPTION OF THE UNDERWRITTEN SECURITIES AND INDENTURE. The
Underwritten Securities being sold pursuant to the applicable Terms Agreement
and the Indenture, as of the date of the Prospectus, will conform in all
material respects to the statements relating thereto contained in the Prospectus
and will be in substantially the form filed or incorporated by reference, as the
case may be, as an exhibit to the Registration Statement.
(xiii) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any
of its Material Subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument to which the
Company or any of its Material Subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the Company or
any Material Subsidiary is subject (collectively, "Agreements and Instruments"),
except, in each case other than with respect to the charter or by-laws of the
Company or any of its Material Subsidiaries, for such violations or defaults
that would not result in a Material Adverse Effect. The execution, delivery and
performance of this Underwriting Agreement, the applicable Terms Agreement and
the Indenture, and any other agreement or instrument entered into or issued or
to be entered into or issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated herein and in
the Registration Statement and the Prospectus (including the issuance and sale
of the Underwritten Securities and the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use of Proceeds" in the
Prospectus relating to such Underwritten Securities) and compliance by the
Company with its obligations hereunder and thereunder have been duly authorized
by all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below) under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any assets, property or operations of the Company or any of its Material
Subsidiaries pursuant to, any Agreements and Instruments nor will such action
result in any violation of the provisions of the charter or by-laws of the
Company or any of its Material Subsidiaries or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company ("Relevant Laws") or any of its Material Subsidiaries or any of their
assets, properties or operations except, in each case other than with respect to
the charter or by-laws of the Company or any of its Material Subsidiaries or
Relevant Laws, for such conflicts, breaches, defaults, Repayment Events, liens,
charges, encumbrances, or violations that would not result in a Material Adverse
Effect. As used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all
7
or a portion of such indebtedness by the Company or any of its Material
Subsidiaries.
(xiv) ABSENCE OF PROCEEDINGS. There is not an action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending or, to the knowledge of the Company,
threatened, against the Company or any of its Material Subsidiaries which is
required to be disclosed in the Registration Statement and the Prospectus (other
than as stated therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated under this
Underwriting Agreement, the applicable Terms Agreement or the Indenture or the
performance by the Company of its obligations hereunder and thereunder. The
aggregate of all pending legal or governmental proceedings to which the Company
or any of its Material Subsidiaries is a party or of which any of their
respective assets, properties or operations is the subject which are not
described in the Registration Statement and the Prospectus, including ordinary
routine litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Effect.
(xv) COMPLIANCE WITH STATE LAW. Neither the Company nor any of its
affiliates does business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075, Florida
Statues.
(xvi) ACCURACY OF EXHIBITS. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus or
the documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(xvii) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or foreign,
is necessary or required for the performance by the Company of its obligations
under this Underwriting Agreement or the applicable Terms Agreement or in
connection with the transactions contemplated under this Underwriting Agreement,
such Terms Agreement or any applicable Indenture, except such as have been
already made or obtained or as may be required under state securities laws.
(xviii) POSSESSION OF INTELLECTUAL PROPERTY. The Company and its
Material Subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, except where
the failure to possess or acquire would not, singly or in the aggregate result
in the Material Adverse Effect. Neither the Company nor any of its Material
Subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
8
Property invalid or inadequate to protect the interest of the Company or any of
its Material Subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material Adverse
Effect.
(xix) POSSESSION OF LICENSES AND PERMITS. The Company and its Material
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, and the Company and its Material
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to possess or comply would
not, singly or in the aggregate, result in a Material Adverse Effect. All of the
Governmental Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not result in a Material Adverse
Effect. Neither the Company nor any of its Material Subsidiaries has received
any notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xx) TITLE TO PROPERTY. The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its subsidiaries
and good title to all other properties owned by them, in each case, free and
clear of all mortgages, pledges, liens, security interests, claims, restrictions
or encumbrances of any kind, except (A) as otherwise stated in the Registration
Statement and the Prospectus or (B) those which do not materially affect the
value of the property of the Company or of its subsidiaries in the aggregate and
do not interfere with the use made and proposed to be made of the property of
the Company or of its Subsidiairies in the aggregate, by the Company or any of
its subsidiaries. All of the leases and subleases of the Company and its
subsidiaries considered as one enterprise, and under which the Company or any of
its subsidiaries holds properties described in the Prospectus, are in full force
and effect, and neither the Company nor any of its subsidiaries has received any
notice of any claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any of its subsidiaries under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the Company
or such subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease except where the failure of such
leases and subleases to be in full force and effect of such claim, if the
subject of an unfavorable decision, ruling or finding, would, singly or in the
aggregate, result in a Material Adverse Effect.
(xxi) ENVIRONMENTAL LAWS. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not, singly or in
the aggregate, result in a Material Adverse Effect, (A) neither the Company nor
any of its Material Subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof including
any judicial or administrative order, consent, decree or judgment, relating to
pollution or
9
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company and
its Material Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or, to the Company's knowledge,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its Material Subsidiaries and (D) to the Company's knowledge,
there are no events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting the Company or any of its Material Subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(xxii) REGISTRATION RIGHTS. There are no holders of securities (debt or
equity) of the Company or holders of rights (including, without limitation,
preemptive rights), warrants or options to obtain securities of the Company, who
have the right to request the Company to register securities held by them under
the 1933 Act, other than holders who have waived or will not have such rights
for a specified period to be agreed upon among the Company and the Underwriters,
and have waived their rights with respect to the inclusion of their securities
in the Registration Statement.
(xxiii) ACCOUNTING CONTROLS. The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances, in all material
respects, that (A) transactions are executed in accordance with management's
general or specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access to
assets is permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xxiv) COMPLIANCE WITH APPLICABLE LAW. The Company has complied in all
respects with all federal, state, local, foreign and similar statutes, laws,
ordinances, rules, regulations, orders, writs, injunctions, judgements, and
decrees applicable to the Company or any of its Material Subsidiaries or to any
of the Company's or its Material Subsidiary's properties or assets, or with
respect to any of the Company's or its Material Subsidiary's officers,
directors, employees or agents in their capacity as such ("Applicable Laws"),
except where the failure to comply would not, individually or in the aggregate,
result in a Material Adverse Effect. None of the Company or any of its Material
Subsidiaries has received any written notice or other written communication from
any Governmental Authority or arbitrator regarding any violation by the
10
Company of, or a failure on the part of the Company to comply with any
Applicable Laws, other than any such violation or failure to comply which would
not, individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect.
(xxv) TAX RETURNS. The Company has filed all material Tax Returns
required to be filed by it in any jurisdiction, and all material Taxes for which
the Company is directly or indirectly liable, or to which any of its properties
or assets are subject, have been filed other than Taxes being contested in good
faith by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP. All such Tax Returns are complete and
accurate in all material respects. There is no material proposed Tax assessment
against the Company and, to the best knowledge of the Company, there is no basis
for any such assessment, except for contested claims. All references in this
subsection 1(a)(xxv) to the Company shall include any Affiliated Group (within
the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended, or
any similar provision of any law), and any partnership or limited liability
company in which the Company is a member or partner. "Taxes" means all taxes of
any kind or nature, assessments and governmental charges, including interest and
penalties (whether or not actually shown on any Tax Return) imposed by any
government authority. "Tax Returns" means all reports, returns or other
information required to be supplied to a government authority with respect to
Taxes.
(xxvi) INSURANCE. Each of the Company and its Material Subsidiaries is
insured (including in each case self-insurance and reinsurance) by insurers of
recognized financial responsibility against such losses and risks and in such
amounts and covering such risks as management reasonably believes are prudent
and customary in the businesses in which it is engaged and all such insurance is
in full force and effect; neither the Company nor any of its Subsidiaries has
within the last 3 years been refused any insurance coverage sought or applied
for; and neither the Company nor any of its Material Subsidiaries has reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business; except in the case of each of the
foregoing as would not have a Material Adverse Effect.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(a) UNDERWRITTEN SECURITIES. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
11
(b) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Underwritten Securities shall be made at the
offices of McGuireWoods LLP, Charlotte, North Carolina, or at such other place
as shall be agreed upon by the Representative and the Company, at 10:00 A.M.
(Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date of the applicable
Terms Agreement (unless postponed in accordance with the provisions of Section
10 hereof), or such other time not later than ten business days after such date
as shall be agreed upon by the Representative and the Company (such time and
date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Securities which it has severally agreed to purchase. The
Representative, individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time or the relevant Date of Delivery, as the case
may be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(c) DENOMINATIONS; REGISTRATION. The Underwritten Securities shall be
in such denominations and registered in such names as the Representative may
request in writing at least two full business days before the Closing Time or
the relevant Date of Delivery, as the case may be. The Underwritten Securities
will be made available for examination and packaging by the Representative in
Charlotte, North Carolina, or at such other place as shall be agreed upon by the
Representative and the Company, not later than 9:00 A.M. (Eastern time) on the
business day prior to the Closing Time or the relevant Date of Delivery, as the
case may be.
SECTION 3. COVENANTS OF THE COMPANY.
The Company covenants with the Representative and with each Underwriter
participating in the offering of Underwritten Securities, as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify the Representative promptly, and confirm the
notice in writing, of (i) the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration
12
Statement or any amendment or supplement to the Prospectus or for additional
information, and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Underwritten Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will timely effect the filings necessary
pursuant to Rule 424 and will take such steps as it deems necessary to ascertain
promptly whether any Prospectus transmitted for filing under Rule 424 was
received for filing by the Commission and, in the event that it was not, it will
promptly file the Prospectus. The Company will use reasonable efforts to prevent
the issuance of any stop order and, if any stop order is issued, use promptly
its best efforts to obtain the lifting thereof.
(b) FILING OF AMENDMENTS. The Company will give the Representative
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act Regulations),
any Term Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representative with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file or use any such document to which the Representative or counsel for the
Underwriters shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, signed or conformed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed or conformed copies of all
consents and certificates of experts, and will also deliver to the
Representative, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. Copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
for format and other variations permitted or required by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except for format and other
variations permitted or required by Regulation S-T.
13
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its reasonable best
efforts, in cooperation with the Underwriters, to qualify the Underwritten
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Representative may
designate and to maintain such qualifications in effect for as long as may be
necessary to complete the distribution of the Underwritten Securities, up to one
year from the date of the applicable Terms Agreement; PROVIDED, HOWEVER, that
the Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a broker or dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject.
(g) EARNINGS STATEMENT. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) REPORTS TO SECURITYHOLDERS. Through its fiscal year ending in 2001,
the Company will deliver to the Representative copies of all reports or other
communications (financial or otherwise) made generally to securityholders of the
Company.
14
(i) USE OF PROCEEDS. The Company will use the net proceeds received by
it from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(j) LISTING. The Company will use reasonable efforts to effect the
listing of the Underwritten Securities, prior to the Closing Time, on any
national securities exchange or quotation system if and as specified in the
applicable Terms Agreement.
(k) RESTRICTION ON SALE OF SECURITIES. Between the date of the
applicable Terms Agreement and the Closing Time or such other date specified in
such Terms Agreement, the Company will not, without the prior written consent of
the Representative, directly or indirectly, issue, sell, offer to sell, grant
any option for the sale of, or otherwise dispose of, the Securities specified in
such Terms Agreement.
(l) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement or the
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any agreement among underwriters, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Underwritten Securities, (iii) the preparation,
issuance and delivery of the Underwritten Securities to the Underwriters,
including any transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Underwritten Securities to the Underwriters,
(iv) the fees and disbursements of the Company's counsel, accountants and other
advisors or agents (including transfer agents and registrars), as well as the
reasonable fees and disbursements of any Trustees and their respective counsel,
(v) the qualification of the Underwritten Securities under state securities laws
in accordance with the provisions of Section 3(f) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey and any Legal Investment Survey, and any
amendment thereto, (vi) the printing and delivery to the Underwriters of copies
of each preliminary prospectus, any Term Sheet, and the Prospectus and any
amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities, if applicable, (viii) the fees and expenses incurred with respect to
the listing of the Underwritten Securities, if applicable, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel
15
to the Underwriters in connection with, the review, if any, by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Underwritten Securities and (x) the fees and expenses of any Underwriter
acting in the capacity of a "qualified independent underwriter" (as defined in
the bylaws of the NASD), if applicable. It is understood, however, that except
as provided in this Section 4, and in Sections 6 and 7 hereof, the Underwriters
will be responsible for all their own costs and expenses, including the fees of
their counsel, any transfer taxes on the Underwritten Securities upon resale by
them and all other expenses incurred by them in connection with any offering of
the Underwritten Securities made by the Underwriters.
(b) TERMINATION OF AGREEMENT. If the applicable Terms Agreement is
terminated by the Representative in accordance with the provisions of Section 5
or Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all
of their out-of-pocket expenses reasonably incurred by the Underwriters in
connection with preparations for the purchase, sale and delivery of Underwritten
Securities pursuant to the applicable Terms Agreement, including the reasonable
fees and disbursements of counsel for the Underwriters, but the Company shall
then be under no further liability to any Underwriter with respect to such
Underwritten Securities except as provided in Sections 4(a), 6 and 7 hereof.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters to purchase and pay for the Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its Subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been initiated or be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing information
relating to the description of the Underwritten Securities, the specific method
of distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any
required post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule 430A),
or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the Representative
shall have received the favorable opinion, dated as of Closing Time, of Xxxxxx &
Xxxxxxx LLP, counsel for the Company, in form and substance satisfactory to
counsel for the
16
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, to the effect set forth in EXHIBIT B hereto. In
rendering such opinion Xxxxxx & Whitney LLP may rely as to matters involving the
application of the laws of the State of Florida, to the extent it deems it
proper and to the extent specified in such opinion, upon the opinion of
McGuireWoods LLP. In addition, at Closing Time, the Representative shall have
received the favorable opinion, dated as of Closing Time, of Xxxxx X. XxXxxxxx,
Associate General Counsel of the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect set forth in EXHIBIT C
hereto.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of McGuireWoods LLP, counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, with
respect to the matters set forth in clauses (1), (6), (7), (8), (9), (10)
(solely as to the information in the Prospectus under "Description of Notes" and
"Description of Capital Stock," if any, or any caption purporting to describe
any such Securities), (16), (17) and the penultimate paragraph of EXHIBIT B
hereto. In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the laws of the State of New
York, the State of Florida and the federal laws of the United States, upon the
opinions of counsel satisfactory to the Representative. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings or business, or to
the knowledge of the Company in the business prospects, of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representative shall have received a
certificate of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 are true and correct with the same
force and effect as though expressly made at and as of the Closing Time, (iii)
the Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to such
officer's knowledge, threatened by the Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of the
applicable Terms Agreement, the Representative shall have received from KPMG LLP
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements are, or are required
17
to be, included in the Registration Statement) a letter dated such date, in form
and substance satisfactory to the Representative, together with signed or
reproduced copies of such letter for each of the other Underwriters, including
matters such as those set forth in EXHIBIT D hereto and containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the Prospectus
and to such further effect as the Representative may reasonably request.
(f) BRING-DOWN COMFORT LETTER. At the Closing Time, the Representative
shall have received from KPMG LLP (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements are, or are required to
be, included in the Registration Statement) a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(g) RATINGS. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization," as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to the
Representative a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Representative, confirming
that the Underwritten Securities have such rating. Since the time of execution
of such Terms Agreement, there shall not have occurred a downgrading in the
rating assigned to the Underwritten Securities or any of the Company's other
securities by any such rating organization, and no such rating organization
shall have publicly announced that it has under surveillance or review its
rating of the Underwritten Securities or any of the Company's other securities.
(h) APPROVAL OF LISTING. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if any, as specified in the applicable Terms Agreement.
(i) NO OBJECTION. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(j) LOCK-UP ARRANGEMENTS. On the date of the applicable Terms
Agreement, the Representative shall have received, in form and substance
satisfactory to it, each lock-up agreement, if any, specified in such Terms
Agreement as being required to be delivered by the persons listed therein.
18
(k) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Underwritten Securities as herein contemplated shall be satisfactory
in form and substance to the Representative and counsel for the Underwriters.
(l) TERMINATION OF TERMS AGREEMENT. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement may be terminated by the Representative by notice
to the Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof,
if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; PROVIDED that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and
19
disbursements of counsel chosen by the Representative), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representative expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action; PROVIDED, HOWEVER, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified
20
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest in the reasonable judgment of the indemnified party,
(ii) the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall have authorized the indemnified party to
employ separate counsel at the expense of the indemnifying party. In no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
21
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and of the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of such Securities as set forth on such
cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to
22
contribute any amount in excess of the amount by which the total price at which
the Underwritten Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company submitted pursuant hereto or thereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of and payment for the Underwritten
Securities.
SECTION 9. TERMINATION.
(a) UNDERWRITING AGREEMENT. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by the Representative upon the giving of 30 days' prior written
notice of such termination to the other party hereto.
(b) TERMINATION; GENERAL. The Representative may terminate the
applicable Terms Agreement, by notice to the Company, at any time at or prior to
the Closing Time or any relevant Date of Delivery, if (i) there has been, since
the time of execution of this Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition (financial or otherwise), earnings or business, or to the knowledge of
the Company in the business prospects, of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) there has occurred, since the execution of the applicable
Terms Agreement, any material adverse change in the financial markets in the
United States or in the international financial markets, any
23
outbreak of hostilities or escalation thereof or other calamity or crisis or
there has occurred any change or development involving a prospective change in
national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market the Underwritten Securities or to
enforce contracts for the sale of the Underwritten Securities, or (iii) trading
in any securities of the Company has been suspended or materially limited by the
Commission or any national securities exchange or quotation system on which the
Company's common stock is listed or quoted, or if trading generally on the New
York Stock Exchange or the American Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the NASD
or any other governmental authority, or (iv) a banking moratorium has been
declared by Federal, New York, or North Carolina authorities or, if the
Underwritten Securities include Debt Securities denominated or payable in, or
indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries, or (v) there is any
downgrading in the rating accorded the Underwritten Securities by any
"nationally recognized statistical rating organization" as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act or if any
such rating organization shall have publicly announced that it has placed any of
such Underwritten Securities on what is commonly termed a "watch list" for
possible downgrading.
(c) LIABILITIES. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail at the Closing Time or
the relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then the Representative shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations under such Terms Agreement
bear to the underwriting obligations of all
24
non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased
on such date pursuant to such Terms Agreement, such Terms Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter or on the part of the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in Section 4
and the indemnification and contribution provisions in Sections 6 and 7
hereof.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of the applicable Terms Agreement, either the Representative or the Company
shall have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or the Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the address of the Representative as set forth
in the Terms Agreement; notices to the Company shall be directed to the Company
at 0000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, attention of Senior Vice
President and General Counsel.
SECTION 12. PARTIES. This Underwriting Agreement and the applicable
Terms Agreement shall each inure to the benefit of and be binding upon the
Company, the Representative and, upon execution of such Terms Agreement, any
other Underwriters and their respective successors. Nothing expressed or
mentioned in this Underwriting Agreement or such Terms Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Underwriting Agreement or such Terms Agreement or
any provision herein or therein contained. This Underwriting Agreement and such
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED
25
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement between the Representative and the Company in accordance with its
terms.
Very truly yours,
XXXXXX RESTAURANTS, INC.
By:
----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
-------------------------------------
As Representatives of the several Underwriters
By:
----------------------------------
By:
----------------------------------
Authorized Signatory
EXHIBIT A
XXXXXX RESTAURANTS, INC.
(a Florida corporation)
Debt Securities
TERMS AGREEMENT
_________ ___, 2000
To: Xxxxxx Restaurants, Inc.
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
We understand that Xxxxxx Restaurants, Inc., a Florida corporation (the
"Company"), proposes to issue and sell $[__________] aggregate principal amount
of its debt securities (the "Debt Securities") (such securities also being
hereinafter referred to as the "Underwritten Securities"). Subject to
the terms and conditions set forth or incorporated by reference herein, we [the
underwriters named below (the "Underwriters")] offer to purchase, severally and
not jointly, the principal amount of Underwritten Securities [opposite their
names set forth below] at the purchase price set forth below.
Principal Amount
Underwriter of Underwritten Securities
----------- --------------------------
Total
-------------------
[$]
===================
The Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Defeasance provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering: initial public offering price: [__]% of the
principal amount, plus accrued interest, if any, or amortized original
issue discount, if any, from ________________.
Purchase price: ___% of principal amount, plus accrued interest, if
any, or amortized original issue discount, if any, from ____________.
Form:
Other terms and conditions:
Closing date and location:
Additional co-managers, if any:
All of the provisions contained in the document attached as Annex I
hereto entitled "Xxxxxx Restaurants, Inc.--Debt Securities--Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ________________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
[NAME OF REPRESENTATIVE]
By:
-----------------------------
Authorized Signatory
2
[Acting on behalf of itself and the
other named Underwriters.]
Accepted:
XXXXXX RESTAURANTS, INC.
By:
-----------------------------
Name:
Title:
3
EXHIBIT B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Florida.
(2) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement and the applicable Terms
Agreement.
(3) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each of the jurisdictions set forth on
Schedule A hereto, and to the best of our knowledge is so qualified and 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 in such
other jurisdiction would not result in a Material Adverse Effect.
(4) Each Material Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation 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 and the Prospectus, all of the issued and outstanding capital stock of
each Material Subsidiary has been duly authorized and is validly issued, fully
paid and non-assessable and, to the best of our knowledge, is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. To the best of
our knowledge, none of the outstanding shares of capital stock of any subsidiary
was issued in violation of the preemptive or similar rights of any
securityholder of such subsidiary.
(5) The authorized, issued and outstanding shares of capital stock of
the Company as of May 28, 2000 are as set forth in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances thereof, if
any, (A) contemplated under the Underwriting Agreement, (B) pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus, (C) pursuant to the exercise of convertible securities or options
referred to in the Prospectus, or (D) which are not material). The shares of
capital stock of the Company have been duly authorized and validly issued by the
Company and are fully paid and non-assessable, and none of such shares of
capital stock was issued in violation of preemptive or
other similar rights of any securityholder of the Company.
(6) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(7) The Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting Agreement and the
applicable Terms Agreement. The Underwritten Securities, when issued and
authenticated in the manner provided for in the Indenture and delivered against
payment of the consideration therefor specified in such Terms Agreement, will
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles. Such Underwritten Securities will be in the form
contemplated by, and each registered holder thereof is entitled to the benefits
of, the Indenture.
(8) The Indenture has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and delivery thereof by
the Trustee) constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(9) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement conform in all material respects to the statements relating
thereto contained in the Prospectus and are in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to the Registration
Statement.
(10) The information in the Prospectus under "Description of Debt
Securities," "Description of Notes" and "Description of Capital Stock," if any,
or any caption purporting to describe any such Securities, and "Certain Federal
Income Tax Considerations," if any, and in the Registration Statement under Item
15, to the extent that it constitutes matters of law, summaries of legal
matters, the Company's charter and bylaws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material respects.
(11) To the best of our knowledge, (i) neither the Company nor any of
its subsidiaries is in violation of its charter or by-laws and (ii) no default
by the Company or any of its subsidiaries exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement.
(12) The execution, delivery and performance of the Underwriting
Agreement, the
2
applicable Terms Agreement and the Indenture and any other agreement or
instrument entered into or issued or to be entered into or issued by the Company
in connection with the transactions contemplated in the Registration Statement
and the Prospectus and the consummation of the transactions contemplated in the
Underwriting Agreement and such Terms Agreement and in the Registration
Statement and the Prospectus (including the issuance and sale of the
Underwritten Securities and the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use Of Proceeds") and
compliance by the Company with its obligations thereunder do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to us, to which the Company or
any of its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the assets, properties or operations of the Company or any of
its subsidiaries is subject, except for such conflicts, breaches, defaults,
events or liens, charges or encumbrances that would not result in a Material
Adverse Effect, nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any of its subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or any
of their assets, properties or operations.
(13) To the best of our knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation to which the Company or
any of its subsidiaries thereof is a party or to which the assets, properties or
operations of the Company or any of its subsidiaries thereof is subject, before
or by any court or governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect or which might
reasonably be expected to materially and adversely affect the consummation of
the transactions contemplated under the Underwriting Agreement, the applicable
Terms Agreement or the Indenture or the performance by the Company of its
obligations thereunder.
(14) To the best of our knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to be
filed as exhibits thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects.
(15) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(16) The Registration Statement has been declared effective under the
1933 Act. Any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b). To the
best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act
3
and, to the best of our knowledge, no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(17) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than the financial statements and supporting schedules included therein or
omitted therefrom, and each Trustee's Statement of Eligibility on Form T-1 (the
"Form T-1s"), as to which we express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(18) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules therein or omitted
therefrom, as to which we express no opinion), when they were filed with the
Commission complied as to form in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission thereunder.
(19) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the
performance by the Company of its obligations under the Underwriting Agreement
or the applicable Terms Agreement or in connection with the transactions
contemplated under the Underwriting Agreement, such Terms Agreement or the
Indenture other than under the 1933 Act, the 1933 Act Regulations, the 1939 Act
and the 1939 Act Regulations, which have been obtained, or as may be required
under state securities or blue sky laws.
As counsel to the Company, we have examined various documents and
records and have participated in the preparation of and reviewed the
Registration Statement and the Prospectus, participated in discussions with
representatives of the Company and its counsel and accountants, and
representatives of the Underwriters and their counsel, and advised the Company
as to the requirements of the 1933 Act and the 1934 Act and the 1933 Act
Regulations and the 1934 Act Regulations.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any post-effective amendment thereto, including
the Rule 430A Information and Rule 434 Information (if applicable) (including
the filing of the Company's Annual Report on Form 10-K with the Commission)
(except for financial statements and schedules and other
4
financial data included therein or omitted therefrom and for the Form T-1s, as
to which we make no statement), at the time such Registration Statement or any
post-effective amendment thereto became effective or at the date of the
applicable Terms Agreement, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements and schedules
and other financial data included therein or omitted therefrom, as to which we
make no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
5
EXHIBIT D
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)
(i) We are independent public accountants with respect to the Company
within the meaning of the 1933 Act and the applicable published 1933 Act
Regulations.
(ii) In our opinion, the audited financial statements and the related
financial statement schedules included or incorporated by reference in the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
published rules and regulations thereunder.
(iii) On the basis of procedures (but not an examination in accordance
with generally accepted auditing standards) consisting of a reading of the
unaudited interim consolidated financial statements of the Company for the
_____-month periods ended _________, 20___ and _________, 20___, included in the
Registration Statement and the Prospectus (the "____-month financials"), [a
reading of the latest available unaudited interim consolidated financial
statements of the Company], a reading of the minutes of all meetings of the
stockholders and directors of the Company and its subsidiaries and the and
Committees of the Company's Board of Directors and any subsidiary committees
since _________________, inquiries of certain officials of the Company and its
subsidiaries responsible for financial and accounting matters, a review of
interim financial information in accordance with standards established by the
American Institute of Certified Public Accountants in Statement on Auditing
Standards No. 71, Interim Financial Information ("SAS 71"), with respect to the
_____-month financials, and such other inquiries and procedures as may be
specified in such letter, nothing came to our attention that caused us to
believe that:
(A) the _____-month financials included in the Registration Statement
and the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act Regulations
applicable to unaudited interim financial statements included in registration
statements or any material modifications should be made to the _____-month
financials included in the Registration Statement and the Prospectus for them to
be in conformity with generally accepted accounting principles;
(B) at _________, 20___ and at a specified date not more than five days
prior to the date of the applicable Terms Agreement, there was any change in the
capital stock of the Company and its subsidiaries or any decrease in the total
assets or stockholders investment of the Company and its subsidiaries or any
increase in the notes and bonds payable and total liabilities of the Company and
its subsidiaries, in each case as compared with amounts shown in the latest
balance sheet included in the Registration Statement and the Prospectus, except
in each case for changes, decreases or increases that the Registration Statement
and the Prospectus disclose have occurred or may occur; or
(C) for the period from _________, 20___ to _________, 20___ and for
the period from _________, 20___ to a specified date not more than five days
prior to the date of the applicable Terms Agreement, there was any decrease in
consolidated total revenues, operating income, or net income, in each case as
compared with the comparable period in the preceding year, except in each case
for any decreases that the Registration Statement and the Prospectus discloses
have occurred or may occur.
(iv) Based upon the procedures set forth in clause (iii) above and a
reading of the Selected Financial Data included in the Registration Statement
and the Prospectus and a reading of the financial statements from which such
data were derived, nothing came to our attention that caused us to believe that
the Selected Financial Data included in the Registration Statement and the
Prospectus do not comply as to form in all material respects with the disclosure
requirements of Item 301 of Regulation S-K of the 1933 Act, that the amounts
included in the Selected Financial Data are not in agreement with the
corresponding amounts in the audited consolidated financial statements for the
respective periods or that the financial statements not included in the
Registration Statement and the Prospectus from which certain of such data were
derived are not in conformity with generally accepted accounting principles.
(v) We have compared the information in the Registration Statement and
the Prospectus under selected captions with the disclosure requirements of
Regulation S-K of the 1933 Act and on the basis of limited procedures specified
herein, nothing came to our attention that caused us to believe that this
information does not comply as to form in all material respects with the
disclosure requirements of Items 302, 402 and 503(d), respectively, of
Regulation S-K.
------------------------------
(vi) We are unable to and do not express any opinion on the Pro Forma
Financial Information (the "Pro Forma Statement") included in the Registration
Statement and the Prospectus or on the pro forma adjustments applied to the
historical amounts included in the Pro Forma Statement; however, for purposes of
this letter we have:
(A) read the Pro Forma Statement;
(B) performed an audit of the financial statements to which the pro
forma adjustments were applied;
(C) made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters about the basis for their
determination of the pro forma adjustments and whether the Pro Forma Statement
complies as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of the pro forma
adjustments to
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the historical amounts in the Pro Forma Statement; and on the basis of such
procedures and such other inquiries and procedures as specified herein, nothing
came to our attention that caused us to believe that the Pro Forma Statement
included in the Registration Statement does not comply as to form in all
material respects with the applicable requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements.
(vii) In addition to the procedures referred to in clause (ii) above,
we have performed other procedures, not constituting an audit, with respect to
certain amounts, percentages, numerical data and financial information appearing
in the Registration Statement and the Prospectus, which are specified herein,
and have compared certain of such items with, and have found such items to be in
agreement with, the accounting and financial records of the Company.
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ANNEX I
Schedule of Material Subsidiaries
1. GMRI, Inc.
2. GMR Restaurants of Pennsylvania, Inc.
3. GMRI Canada, Inc.
4. GMRI Texas L.P.
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