Exhibit 1
FORM OF UNDERWRITING AGREEMENT
CBRL GROUP, INC.
(a Tennessee corporation)
Debt Securities
UNDERWRITING AGREEMENT
XXXXXXX XXXXX & CO.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
CBRL Group, Inc., a Tennessee corporation (the "Company"), proposes
to issue and sell up to $250,000,000 of its senior or subordinated 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 as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as
of _____________, 1999 (the "Senior Indenture"), between the Company
and _______________, as trustee (the "Senior Trustee"), or as
subordinated indebtedness (the "Subordinated Debt Securities") under an
indenture, dated as of ___________, 1999 (the "Subordinated Indenture",
and collectively with the Senior Indenture, the "Indentures", and each,
an "Indenture"), between the Company and ________________, as trustee
(the "Subordinated Trustee", and collectively with the Senior Trustee,
the "Trustees", and each, a "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 repayment provisions, sinking fund requirements,
and any other variable terms established by or pursuant to the
applicable Indenture. As used herein, "Securities" shall mean the
Senior Debt Securities or Subordinated Debt Securities, or any
combination thereof, initially issuable by the Company.
Whenever the Company determines to make an offering of Securities
through Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), or through an underwriting syndicate
managed by Xxxxxxx Xxxxx, 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, Xxxxxxx Xxxxx and such
other underwriters, if any, selected by Xxxxxxx Xxxxx (the
"Underwriters," which term shall include Xxxxxxx Xxxxx, whether acting
as sole Underwriter or as a member of an underwriting syndicate, as well
as any Underwriter substituted pursuant to Section 10 hereof). The
Terms Agreement relating to the offering of Securities shall specify the
aggregate principal amount of Securities to be issued (the "Underwritten
Securities"), the name of each Underwriter participating in such
offering (subject to substitution as provided in Section10 hereof) and
the name of any Underwriter other xxxx Xxxxxxx Xxxxx acting as co-manager
in connection with such offering, the aggregate principal amount
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 Xxxxxxx Xxxxx, acting for itself and, if applicable, as
representative of any other Underwriters. Each offering of Underwritten
Securities through Xxxxxxx Xxxxx as sole Underwriter or through an
underwriting syndicate managed by Xxxxxxx Xxxxx 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-________)
[and pre-effective amendment[s] no[s] ____, ____, and ____.
thereto] 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
Rule434(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
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also he deemed to include the Rule462
Registration Statement; and provided, further, that if the Company
elects to rely upon Rule434 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 Rule434 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 any
prospectus used before the registration statement became effective and
any prospectus that omitted, as applicable, the Rule430A Information,
the Rule434 Information or other information to be included upon pricing
in a form of prospectus filed with the Commission pursuant to Rule424(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 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").
All references in this Underwriting Agreement to financial
statements and schedules and other information which is "contained,"
"included" 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 that 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 Xxxxxxx Xxxxx, as of the date hereof, and to
each Underwriter named in the applicable Terms Agreement, as of the date
thereof, and as of the Closing Time (as defined below) (in each case, a
"Representation Date"), as follows:
(1) 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, each Indenture has
been duly qualified under the 1939 Act.
At the respective times the Registration Statement, any
Rule462(b) Registration Statement and any post-effective amendments
thereto (including the filing of the Company's most recent Annual
Report on Form10-K with the Commission (the "Annual Report on Form
10-K")) became effective and at each Representation Date, the
Registration Statement, any Rule462(b) Registration Statement and
any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the rules and regulations
of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at the Closing Time,
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 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 Xxxxxxx Xxxxx expressly for use in the Registration
Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule424 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 to
the extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents
incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, 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, and
at the Closing Time, 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 the), were made, not misleading.
(3) Independent Accountants. The accountants who
certified the financial statements and any 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.
(4) Financial Statements. The financial statements of
the Company included in the Registration Statement and the
Prospectus, together with the related schedules and notes, as well
as those financial statements, schedules and notes of any other
entity included therein, present fairly the financial position of
the Company and its consolidated subsidiaries, or such other
entity, as the case may be, at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries, or such other entity, as
the case may be, for the periods specified. Such financial
statements have been prepared in conformity with 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 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.
(5) 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, or in the earnings, business
affairs or 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 arising in the ordinary
course of business, that 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
or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its
capital stock.
(6) 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 Tennessee 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.
(7) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule1-02 of
Regulation S-X promulgated under the 0000 Xxx) (each, a "Subsidiary"
and, collectively, the "Subsidiaries"), if any, 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 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 Subsidiary has been duly authorized
and is validly issued, fully paid and non-assessable and is owned by the
Company, directly or through 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 Subsidiary was
issued in violation of preemptive or other similar rights of any
securityholder of such Subsidiary.
(8) Capitalization. If the Prospectus contains a
"Capitalization" section, the authorized, issued and outstanding shares
of capital stock of the Company is as set forth in the column entitled
"Actual" under such section (except for subsequent issuances thereof, if
any, contemplated under this Underwriting Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). Such shares of capital stock
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.
(9) 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.
(10) Authorization of Senior Debt Securities and/or
Subordinated Debt Securities. The Senior Debt Securities and/or
Subordinated Debt Securities being sold pursuant to the applicable Terms
Agreement 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, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles, and except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Debt Securities
denominated other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments outside the United States. Such
Underwritten Securities will he in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the applicable
Indenture.
(11) Authorization of the Indentures. Each applicable
Indenture governing the Senior Debt Securities and/or Subordinated Debt
Securities being sold pursuant to the applicable Terms Agreement has
been, or prior to the issuance of the Debt Securities thereunder will
have been, duly authorized, executed and delivered by the Company and,
upon such authorization, execution and delivery, will constitute a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, 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.
(12) Descriptions of the Underwritten Securities. The
Underwritten Securities being sold pursuant to the applicable Terms
Agreement and each applicable Indenture, as of the date of the
Prospectus, when issued and delivered in accordance with the terms of
the related Underwritten Securities, 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.
(13) Absence of Defaults and Conflicts. Neither the
Company nor any of its 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 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 of its
subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Effect. The execution, delivery and performance of this Underwriting
Agreement, the applicable Terms Agreement and each applicable 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") 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, properties or operations of
the Company or any of its subsidiaries pursuant to, any Agreements and
Instruments (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 of any government, government instrumentality or
court, domestic or foreign having jurisdiction over the Company or any
if its subsidiaries or any of their assets, properties or operations.
As used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any of its subsidiaries.
(14) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or any subsidiary's principal suppliers, manufacturers, customers or
contractors, that, in either case, may reasonably be expected to result
in a Material Adverse Effect.
(15) Absence of Proceedings. There is not pending or
threatened any 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 or affecting the Company or any of its subsidiaries that is
required to be disclosed in the Registration Statement and the
Prospectus (other than as stated therein), or that might reasonably be
expected to result in a Material Adverse Effect, or that might
reasonably be expected to materially and adversely affect the assets,
properties or operations thereof or the consummation of the transactions
contemplated under this Underwriting Agreement, the applicable Terms
Agreement or any applicable Indenture or the performance by the Company
of its obligations hereunder and thereunder. The aggregate of all
pending legal or governmental proceedings to that the Company or any of
its subsidiaries is a party or of which any of their respective assets,
properties or operations is the subject that 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.
(16) Accuracy of Exhibits. There are no contracts or
documents that 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 that have not been so
described and filed as required.
(17) 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
obtained or as may be required under state securities laws.
(18) Possession of Intellectual Property. The Company and
its 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, and neither the Company nor any of its
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 that would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its 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.
(19) Possession of Licenses and Permits. The Company and
its 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. The
Company and its subsidiaries are in compliance with the ten-ns and
conditions of all such Governmental Licenses, except where the failure
so to 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 where 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 subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses that, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(20) 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, singly or in the aggregate,
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company or
any of its subsidiaries. All of the leases and subleases material to
the business 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 material 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 of the
continued possession of the leased or subleased premises under any such
lease or sublease.
(21) Investment Company Act. The Company is not, and upon
the issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
(22) 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 subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company and its
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 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 subsidiaries and (D) 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 subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(23) Compliance with Cuba Act. The Company has complied
with, and is and will be in compliance with, the provisions of that
certain Florida act relating to disclosure of doing business with Cuba,
codified as Section517.075 of the Florida statutes, and the rules and
regulations thereunder or is exempt therefrom.
(b) Officers' 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 and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to have been made on the
basis of the representations and warranties herein contained and shall
be subject to the terms and conditions herein set forth.
(b) Payment. Payment of the purchase price for, and delivery
of, the Underwritten Securities shall be made at the offices of Winston
& Xxxxxx, 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such
other place as shall be agreed upon by Xxxxxxx Xxxxx 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 Section10 hereof), or such other time not later
than ten business days after such date as shall be agreed upon by
Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx for the respective accounts of the
Underwriters of the Underwritten Securities to be purchased by them. It
is understood that each Underwriter has authorized Xxxxxxx Xxxxx, 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. Xxxxxxx Xxxxx, 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, but such payment shall not relieve such Underwriter from
its obligations hereunder.
(c) Denominations; Registration. Certificates for the
Underwritten Securities shall be in such denominations and registered in
such names as Xxxxxxx Xxxxx may request in writing at least one full
business day prior to the Closing Time. Certificates for the
Underwritten Securities will be made available for examination and
packaging by Xxxxxxx Xxxxx in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with
Xxxxxxx Xxxxx 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 Section3(b), will comply with the
requirements of Rule430A of the 1933 Act Regulations and/or Rule434 of
the 1933 Act Regulations, if and as applicable, and will notify the
Representative(s) immediately, and confirm the notice in writing, of (i)
the effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii)
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) 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 promptly effect the filings necessary
pursuant to Rule424 and will take such steps as it deems necessary to
ascertain promptly whether the Prospectus transmitted for filing under
Rule424 was received for filing by the Commission and, in the event that
it was not, it will promptly file the Prospectus. The Company will make
every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Filing of Amendments. The Company will give Xxxxxxx
Xxxxx notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule462(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 xxxxxxx Xxxxxxx Xxxxx
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 Xxxxxxx Xxxxx or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to Xxxxxxx Xxxxx and counsel for the
Underwriters, without charge, signed 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 copies of all consents and certificates of experts,
and will also deliver to Xxxxxxx Xxxxx, 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 any electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted 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 any electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The
Company will comply with the 1933 Act and the 1933 Act Regulations and
the 1934 Act and the 1934 Act Regulations so as to permit the completion
of the distribution of the Underwritten Securities as contemplated in
this Underwriting Agreement and the applicable Terms Agreement and in
the Registration Statement and the Prospectus. If at any time when the
Prospectus is required by the 1933 Act or the 1934 Act to be delivered
in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein 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
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 Xxxxxxx Xxxxx may designate and to maintain such
qualifications in effect for a period of not less than 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 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. In each
jurisdiction in which the Underwritten Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification
in effect for a period of not less than one year from the date of such
Terms Agreement.
(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 1 1 (a) of the 1933 Act.
(h) 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".
(i) Listing. The Company will use its best 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.
(j) 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 Xxxxxxx Xxxxx, 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.
(k) 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 Indentures, 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 and
any certificates for 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, as well as the fees and
disbursements of the Trustees, and their respective counsel, (v) the
qualification of the Underwritten Securities under state securities laws
in accordance with the provisions of Section3(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
amendment thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Term Sheet, and the
Prospectus and any amendments or supplements thereto, (vii) the fees
charged by nationally recognized statistical rating organizations for
the rating of the Underwritten Securities, if applicable, (viii) the
fees and expenses incurred with respect to the listing of the
Underwritten Securities, if applicable, (ix) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National
Association of Securities Dealers, Inc. (the "NASD") of t he 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 Section 2(l) of Schedule E of the bylaws of
the NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms
Agreement is terminated by Xxxxxxx Xxxxx in accordance with the
provisions of Section5 or Section9(b)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters.
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 Rule462(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 Rule424(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,
Xxxxxxx Xxxxx shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxxxx & Shohl LLP, counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit B hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time,
Xxxxxxx Xxxxx shall have received the favorable opinion, dated as of
Closing Time, of Winston & Xxxxxx, 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 (1), (2),
(6) through (12), inclusive, 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 law of the
State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to Xxxxxxx Xxxxx. 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, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and Xxxxxxx Xxxxx shall have
received a certificate of the President or a Vice President of the
Company and of the chief financial officer 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
initiated or threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the
execution of the applicable Terms Agreement, Xxxxxxx Xxxxx shall have
received from Deloitte & Touche LLP a letter dated such date, in form
and substance satisfactory to Xxxxxxx Xxxxx, together with signed or
reproduced copies of such letter for each of the other Underwriters,
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.
(f) Bring-down Comfort Letter. At Closing Time, Xxxxxxx
Xxxxx shall have received from Deloitte & Touche LLP 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 the Section5, 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, the Underwritten Securities
shall have the ratings accorded by any "nationally recognized
statistical rating organization," as defined by the Commission for
purposes of Rule436(g)(2) of the 1933 Act Regulations, if and as
specified in the applicable Terms Agreement, and the Company shall have
delivered to Xxxxxxx Xxxxx a letter, dated as of such date, from each
such rating organization, or other evidence satisfactory to Xxxxxxx
Xxxxx, confirming that the Underwritten Securities have such ratings.
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 and 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) Additional Documents. At Closing Time, counsel for
the Underwriters shall have been furnished with such documents and
opinions as they may 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
Xxxxxxx Xxxxx and counsel for the Underwriters.
(k) Termination of Terms Agreement. If any condition
specified in this Section5 shall not have been fulfilled when and as
required to be fulfilled, the applicable Terms Agreement may be
terminated by Xxxxxxx Xxxxx 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 Section15 of the 1933
Act or Section20 of the 1934 Act as follows:
(1) 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;
(2) 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
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), 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 Xxxxxxx Xxxxx
expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A information and the Rule434
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 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
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 Rule430A Information
and the Rule434 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 Xxxxxxx
Xxxxx 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 that it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be selected
by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected
by the Company. 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. 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.
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 Underwritten 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 that does
not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to
above in this Section 7 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Underwritten Securities underwritten
by it and distributed to the public were offered to the public exceeds
the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement
or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 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 aggregate principal amount 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 Xxxxxxx Xxxxx upon the giving of
30 days' prior written notice of such termination to the other party
hereto.
(b) Terms Agreement. Xxxxxxx Xxxxx may terminate the
applicable Terms Agreement, by notice to the Company, at any time at or
prior to the Closing Time, if (i) there has been, since the time of
execution of such 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,
business affairs or 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 any material
adverse change in the financial markets in the United States or, if the
Underwritten Securities are denominated or payable in, or indexed to,
one or more foreign or composite currencies, in the international
financial markets, or any outbreak of hostilities or escalation thereof
or other calamity or crisis or 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 Xxxxxxx Xxxxx, 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 limited by the Commission or the Nasdaq
National Market, 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 limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by either 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 either Federal or New York authorities or, if the
Underwritten Securities are 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.
(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 to purchase the
Underwritten Securities that it or they are obligated to purchase under
the applicable Terms Agreement (the "Defaulted Securities"), then
Xxxxxxx Xxxxx 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, Xxxxxxx Xxxxx shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the
case may be, of Defaulted Securities does not exceed 10% of the number
or aggregate principal amount, as the case may be, of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number or aggregate principal amount, as the
case may be, of Defaulted Securities exceeds 10% of the number or
aggregate principal amount, as the case may be, of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, such Terms Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
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 that does not result in a
termination of the applicable Terms Agreement, either Xxxxxxx Xxxxx 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. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section
10.
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
Xxxxxxx Xxxxx at World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, attention of Investment Banking Counsel; and notices to the
Company shall be directed to it at 000 Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxx 00000, attention of Xxxxx X. Xxxxxxxxxx, Vice President,
Secretary 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, Xxxxxxx Xxxxx and, upon execution of such
Terms Agreement, any other Underwriters and their respective successors.
Nothing expressed or mentioned in this Underwriting Agreement or such
Terms Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or
in respect of this Underwriting Agreement or such Terms Agreement or any
provision herein or therein contained. This Underwriting Agreement and
such Terms Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the
parties hereto and thereto and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT
AND ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 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.
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 Xxxxxxx Xxxxx and the Company in
accordance with its terms.
Very truly yours,
CBRL GROUP, INC.
By:______________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:______________________________________
Authorized Signatory
Exhibit A
CBRL GROUP, INC.
(a Tennessee)
Debt Securities
TERMS AGREEMENT
---------------
January ___, 1999
To: CBRL Group, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
We understand that CBRL Group, Inc., a Tennessee corporation (the
"Company"), proposes to issue and sell $ aggregate principal amount
of its [senior] [subordinated] 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
-------------
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:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per
share: % of the principal amount, plus accrued interest
[amortized original issue discount], if any, from
________________.
Purchase price per share: ___% of principal amount, plus accrued
interest [amortized original issue discount], if any, from
_____________.
Form:
Other term and conditions:
Closing date and location:
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,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By_______________________________
Authorized Signatory
[Acting on behalf of itself and the
other named Underwriters.]
Accepted:
CBRL GROUP, INC.
By __________________________
Name:
Title:
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 Tennessee.
(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
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 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 so to
qualify or to be in good standing would not result in a Material Adverse
Effect.
(4) Each 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 so to
qualify or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration Statement and
the Prospectus, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is 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;
none of the outstanding shares of capital stock of any Subsidiary was
issued in violation of preemptive or other similar rights of any
securityholder of such Subsidiary.
(5) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus in the column entitled "Actual" under
the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements or employee benefit plans referred
to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus); the shares of
issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable;
and none of the outstanding shares of capital stock of the Company was
issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(6) The Underwriting Agreement has 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 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, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles, and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to any Debt
Securities denominated other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to limit, delay
or prohibit the making of payments outside the United States. The
Underwritten Securities are in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the applicable
Indenture.
(8) The applicable Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution
and delivery thereof by the Trustee) constitutes a valid and 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 Indenture has been duly qualified under the 1939 Act.
(10) The Securities and the Indenture conform as to legal matters in all
material respects to the descriptions thereof contained in the
Prospectus and are in substantially the form filed or incorporated by
reference, as the cause may be, as an exhibit to the Registration
Statement.
(11) The information in the Prospectus under "Description of Debt
Securities," "Certain Federal Income Tax Considerations" and
"__________" 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.
(12) To the best of our knowledge, neither the Company nor any
subsidiary is in violation of its charter or by-laws and no default by
the Company or any subsidiary 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.
(13) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and the applicable Indenture
and the Securities and the consummation of the transactions contemplated
in the Underwriting Agreement, the applicable Terms Agreement and in the
Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities
as described in the Prospectus under the caption "Use Of Proceeds") and
compliance by the Company with its obligations under the Underwriting
Agreement, the Indenture and the Securities do not and will not, whether
with or without the giving of notice or lapse 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 subsidiary 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 subsidiary 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 subsidiary is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
have 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 subsidiary, 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 subsidiary or any of their
respective properties, assets or operations. Incorporated by reference
as an exhibit to the Registration Statement.
(14) 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 subsidiary is a party, or to which the property of the
Company or any subsidiary is subject, before or brought 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 properties
or assets thereof or the consummation of the transactions contemplated
in the Underwriting Agreement, the applicable Terms Agreement or the
applicable Indenture or the performance by the Company of its
obligations thereunder.
(15) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; 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.
(16) 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.
(17) The Registration Statement, including any Rule 462(b) 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); and, to the
best of our knowledge, 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 threatened by the Commission.
(17) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, 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 the Trustee's Statement of Eligibility
on Form T-1 (the "Form T-1"), as to which we need 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 included therein
or omitted therefrom, as to which we need express no opinion), when they
were filed with the Commission complied as to form in all material
respects with the requirements of he 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 (other than under
the 1933 Act and the 1933 Act Regulations, the 1939 Act, and the 1939
Act Regulations, which have been obtained, or as may be required under
the securities or blue sky laws of the various states) is necessary or
required in connection with the due authorization, execution and
delivery of the Underwriting Agreement and the applicable Terms
Agreement or the due execution, delivery or performance of the Indenture
by the Company or for the offering, issuance, sale or delivery of the
Securities.
(20) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the 1940 Act.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any post-effective amendment thereto
(except for financial statements and schedules and other financial data
included or incorporated by reference therein or omitted therefrom and
the Form T-1, as to which we need make no statement), at the time such
Registration Statement or post-effective amendment 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 or incorporated by reference therein or
omitted therefrom and the Form T-1, as to which we need 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).
