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EXHIBIT 4.2
EXECUTION COPY
DOLLAR GENERAL CORPORATION
$200,000,000
8 5/8% NOTES DUE JUNE 15, 2010
REGISTRATION RIGHTS AGREEMENT
June 21, 2000
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Banc of America Securities LLC
Wachovia Securities, Inc.
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Ladies and Gentlemen:
Dollar General Corporation, a Tennessee corporation (the "ISSUER"),
proposes to issue and sell to Credit Suisse First Boston Corporation, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Banc of America Securities LLC and
Wachovia Securities, Inc. (collectively, the "INITIAL PURCHASERS"), upon the
terms set forth in a purchase agreement dated June 16, 2000 (the "PURCHASE
AGREEMENT"), $200,000,000 aggregate principal amount of its 8 5/8% Notes due
June 15, 2010 (the "INITIAL NOTES") to be guaranteed (the "GUARANTEES" and,
together with the Initial Notes, the "INITIAL SECURITIES") by Dolgencorp, Inc.,
a Kentucky corporation; Dolgencorp of Texas, Inc., a Kentucky corporation; DG
Logistics, LLC, a Tennessee limited liability company; Dade Lease Management,
Inc., a Delaware corporation; Dollar General Partners, a Kentucky general
partnership; Dollar General Financial, Inc., a Tennessee corporation; Nations
Title Company, Inc., a Tennessee corporation; Dollar General Intellectual
Property, L.P., a Vermont limited partnership; and any subsidiary (each, an
"ADDITIONAL GUARANTOR") of the Issuer that executes a supplemental indenture
that provides a guarantee of the Securities (as defined below) and the Indenture
after the date of this Agreement (the "GUARANTORS" and, collectively with the
Issuer, the "COMPANIES"). The Initial Securities will be issued pursuant to an
Indenture, dated as of June 21, 2000 (the "INDENTURE"), among the Companies and
First Union National Bank, as trustee (the "TRUSTEE"). As an inducement to the
Initial Purchasers to enter into the Purchase Agreement, the Companies agree
with the Initial Purchasers, for the benefit of the Initial Purchasers and the
holders of the Securities (as defined below) (collectively the "HOLDERS"), as
follows:
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1. Registered Exchange Offer. Unless not permitted by applicable law
(after the Companies have complied with the ultimate paragraph of this Section
1), the Companies shall, at their own cost, prepare and, not later than 90 days
(or if such 90th day is not a business day, the first business day thereafter)
(such 90th day being a "FILING DEADLINE") after the date on which the Initial
Purchasers purchase the Initial Securities pursuant to the Purchase Agreement
(the "CLOSING DATE"), file with the Securities and Exchange Commission (the
"COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION
STATEMENT") on an appropriate form under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED
EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in
Section 6 hereof), who are not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer, to issue and deliver to
such Holders, in exchange for the Initial Securities, a like aggregate principal
amount of debt securities and guarantees of the Companies issued under the
Indenture, identical in all material respects to the Initial Securities (except
for the transfer restrictions relating to the Initial Securities and the
provisions relating to the matters described in Section 6 hereof) and registered
under the Securities Act (the "EXCHANGE SECURITIES"). The Companies shall use
their reasonable best efforts to (i) cause such Exchange Offer Registration
Statement to become effective under the Securities Act within 180 days after the
Closing Date (or if such 180th day is not a business day, the first business day
thereafter) (such 180th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the
Exchange Offer Registration Statement effective for not less than 30 days (or
longer, if required by applicable law) after the date notice of the Registered
Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE
OFFER REGISTRATION PERIOD").
If the Companies commence the Registered Exchange Offer, the Companies
(i) will be entitled to consummate the Registered Exchange Offer 30 days after
such commencement (provided that the Companies have accepted all the Initial
Securities theretofore validly tendered in accordance with the terms of the
Registered Exchange Offer) and (ii) will be required to consummate the
Registered Exchange Offer no later than 40 days after the date on which the
Exchange Offer Registration Statement is declared effective (such 40th day being
the "CONSUMMATION DEADLINE").
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Companies shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Companies within the meaning of the Securities Act, acquires
the Exchange Securities in the ordinary course of such Holder's business and has
no arrangements with any person to participate in the distribution of the
Exchange Securities and is not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer) to trade such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Securities Act (other than the prospectus delivery requirements
referred to in clause (i) of the next paragraph, if and to the extent
applicable) and without material restrictions under the securities laws of the
several states of the United States.
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The Companies acknowledge that, pursuant to current interpretations by
the Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder that is a broker-dealer electing
to exchange Initial Securities, acquired for its own account as a result of
market making activities or other trading activities, for Exchange Securities
(an "EXCHANGING DEALER"), is required to deliver a prospectus containing
information substantially to the effect set forth in (a) Annex A hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section, and (b) Annex B hereto in the "Plan of Distribution" section of such
prospectus in connection with a sale of any such Exchange Securities received by
such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an
Initial Purchaser that elects to sell Securities acquired in exchange for
Initial Securities constituting any portion of an unsold allotment is required
to deliver a prospectus containing the information required by Items 507 or 508
of Regulation S-K under the Securities Act, as applicable, in connection with
such sale.
The Companies shall, subject to Section 6(b) hereof, use their
reasonable best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the prospectus contained therein, in order
to permit such prospectus to be lawfully delivered by all persons subject to the
prospectus delivery requirements of the Securities Act for such period of time
as such persons must comply with such requirements in order to resell the
Exchange Securities; provided, however, that (i) in the case where such
prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of
180 days and the date on which all Exchanging Dealers and the Initial Purchasers
have sold all Exchange Securities held by them (unless such period is extended
pursuant to Section 3(j) below) and (ii) the Companies shall make such
prospectus and any amendment or supplement thereto available to any
broker-dealer for use in connection with any resale of any Exchange Securities
for a period of not less than 180 days after the consummation of the Registered
Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Companies, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Companies
issued under the Indenture and identical in all material respects (including the
existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States) to the Initial
Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "SECURITIES".
In connection with the Registered Exchange Offer, the Companies shall:
(a) mail to each Holder a copy of the prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
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(b) keep the Registered Exchange Offer open for not less than
30 days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business day
on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer
or the Private Exchange, as the case may be, the Companies shall:
(x) accept for exchange all the Securities validly tendered
and not withdrawn pursuant to the Registered Exchange Offer and the
Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to
each Holder of the Initial Securities, Exchange Securities or Private
Exchange Securities, as the case may be, equal in principal amount to
the Initial Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Companies that at the time of the consummation of
the Registered Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business, (ii) such Holder
will have no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule
405 of the Securities Act, of the Companies or if it is an affiliate, such
Holder will comply with the registration and prospectus
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delivery requirements of the Securities Act to the extent applicable, (iv) if
such Holder is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, the distribution of the Exchange Securities and (v) if such
Holder is a broker-dealer, that it will receive Exchange Securities for its own
account in exchange for Initial Securities that were acquired as a result of
market-making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Companies will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto does not, when it becomes effective, 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 and (iii) any prospectus
forming part of any Exchange Offer Registration Statement, and any supplement to
such prospectus, does not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
If following the date hereof there has been announced a change in
Commission policy with respect to exchange offers that in the reasonable opinion
of counsel to the Companies raises a substantial question as to whether the
Registered Exchange Offer is permitted by applicable federal law, the Companies
will seek a no-action letter or other favorable decision from the Commission
allowing the Companies to consummate the Registered Exchange Offer. The
Companies will pursue the issuance of such a decision to the Commission staff
level. In connection with the foregoing, the Companies will take all such other
actions as may be requested by the Commission or otherwise required in
connection with the issuance of such decision, including without limitation (i)
participating in telephonic conferences with the Commission, (ii) delivering to
the Commission staff an analysis prepared by counsel to the Companies setting
forth the legal bases, if any, upon which such counsel has concluded that the
Registered Exchange Offer should be permitted and (iii) diligently pursuing a
resolution (which need not be favorable) by the Commission staff.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Companies
are not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated within
220 days after the Closing Date, (iii) any Initial Purchaser so requests within
10 business days following the consummation of the Registered Exchange Offer
with respect to the Initial Securities (or the Private Exchange Securities) not
eligible to be exchanged for Exchange Securities in the Registered Exchange
Offer and held by it following consummation of the Registered Exchange Offer or
(iv) any Holder (other than an Exchanging Dealer) shall notify the Companies
within 10 business days following the consummation of the Registration Exchange
Offer that it is not eligible to participate in the Registered Exchange Offer
or, in the case of any Holder (other than an Exchanging Dealer) that
participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of
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the exchange, the Companies shall take the following actions (the date on which
any of the conditions described in the foregoing clauses (i) through (iv) occur,
including in the case of clauses (iii) or (iv), the receipt of the required
notice, being a "TRIGGER DATE"):
(a) The Companies shall, at their cost, promptly (but in no
event more than 90 days after the Trigger Date (such 90th day being a
"FILING DEADLINE")) file with the Commission and thereafter use their
reasonable best efforts to cause to be declared effective promptly (but
in no event more than 180 days after the Trigger Date (such 180th day
being an "EFFECTIVENESS DEADLINE")) a registration statement (the
"SHELF REGISTRATION STATEMENT" and, together with the Exchange Offer
Registration Statement, a "REGISTRATION STATEMENT") on an appropriate
form under the Securities Act relating to the offer and sale of the
Transfer Restricted Securities by the Holders thereof from time to time
in accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act
(hereinafter, the "SHELF REGISTRATION"); provided, however, that no
Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the provisions
of this Agreement applicable to such Holder.
(b) The Companies shall use their reasonable best efforts to
keep the Shelf Registration Statement continuously effective in order
to permit the prospectus included therein to be lawfully delivered by
the Holders of the relevant Securities, for a period of two years (or
for such longer period if extended pursuant to Section 3(j) below) from
the date of its effectiveness or such shorter period that will
terminate when all the Securities covered by the Shelf Registration
Statement (i) have been sold pursuant thereto or (ii) are no longer
restricted securities (as defined in Rule 144 under the Securities Act,
or any successor rule thereof); provided, however, that the Companies
shall not be obligated to keep the Shelf Registration Statement
continuously effective to the extent set forth above, or to keep the
prospectus included therein usable for offers and sales of Securities,
if (i) the Companies determine, in their reasonable judgment, after
seeking the advice of counsel, that the continued effectiveness of the
Shelf Registration Statement or usability of any prospectus included
therein would (x) require the disclosure of material information, which
the Companies have a bona fide business reason for preserving as
confidential, or (y) interfere with any financing, acquisition,
corporate reorganization or other material transaction or development
involving any of the Companies or the contemplated timing thereof, and
(ii) the Companies promptly thereafter comply with the requirements of
Section 3(j) hereof, if applicable. The number of days of any actual
Suspension Period (as defined below) shall be added on to the end of
the two-year period specified above. Any such period during which the
Companies are excused from keeping the Shelf Registration Statement
effective and the prospectus included therein usable for offers and
sales of Securities is referred to herein as a "SUSPENSION PERIOD." A
Suspension Period shall commence on and include the date that the
Companies give notice that the Shelf Registration Statement is no
longer effective or the prospectus included therein is no longer usable
for offers and sales of Securities and shall end on the earlier to
occur of (1) the date on which each seller of Securities covered by the
Shelf
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Registration Statement either receives the copies of the supplemented
or amended prospectus contemplated by Section 3(j) hereof or is advised
in writing by the Companies that the use of the prospectus may be
resumed, and (2) the occurrence of a Suspension Period Limit (as
defined below). There shall be no more than three Suspension Periods in
any 12-month period, the aggregate number of days of such Suspension
Periods shall not exceed 90 days in such 12 month period (collectively,
the "SUSPENSION PERIOD LIMITS") and no Suspension Period shall exceed
60 days. The Companies shall be deemed not to have used their
reasonable best efforts to keep the Shelf Registration Statement
effective during the requisite period if they voluntarily take any
action (other than an action permitted by this Section 2(b) or by
Section 6(b) hereof) that would result in Holders of Securities covered
thereby not being able to offer and sell such Securities during that
period, unless such action is required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to
the contrary, the Companies shall cause the Shelf Registration
Statement and the related prospectus and any amendment or supplement
thereto, as of the effective date of the Shelf Registration Statement,
amendment or supplement, (i) to comply in all material respects with
the applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Companies shall (i) furnish to each Initial Purchaser,
prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each supplement,
if any, to the prospectus included therein and, in the event that an
Initial Purchaser (with respect to any portion of an unsold allotment
from the original offering) is participating in the Registered Exchange
Offer or the Shelf Registration Statement, the Companies shall use
their reasonable best efforts to reflect in each such document, when so
filed with the Commission, such comments as such Initial Purchaser
reasonably may propose; (ii) include information substantially to the
effect set forth in Annex A hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section and in Annex B
hereto in the "Plan of Distribution" section of the prospectus forming
a part of the Exchange Offer Registration Statement and include the
information set forth in Annex C hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; (iii) if requested
by an Initial Purchaser, include the information required by Items 507
or 508 of Regulation S-K under the Securities Act, as applicable, in
the prospectus forming a part of the Exchange Offer Registration
Statement; (iv) include within the prospectus contained in the Exchange
Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a
summary statement of the positions taken or policies made by the staff
of the Commission with respect to the
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potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) of Exchange
Securities received by such broker-dealer in the Registered Exchange
Offer (a "PARTICIPATING BROKER-DEALER"), whether such positions or
policies have been publicly disseminated by the staff of the Commission
or such positions or policies, in the reasonable judgment of the
Initial Purchasers based upon advice of counsel (which may be in-house
counsel), represent the prevailing views of the staff of the
Commission; and (v) in the case of a Shelf Registration Statement,
include the names of the Holders who propose to sell Securities
pursuant to the Shelf Registration Statement as selling
securityholders.
(b) The Companies shall give written notice to the Initial
Purchasers, when the Registration Statement or any amendment thereto
has been filed with the Commission and shall give written notice to the
Initial Purchasers and (x) in the case of a Shelf Registration
Statement, the Holders of the Securities covered thereby or (y) in the
case of an Exchange Offer Registration Statement, the Holders of the
Initial Securities and any Participating Broker-Dealer from whom the
Companies have received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which
notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite
changes have been made):
(i) when the Registration Statement or any
post-effective amendment thereto has been declared effective
by the Commission;
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Companies or their legal
counsel of any notification with respect to the suspension of
the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the occurrence of any event, including,
without limitation, any event resulting in a Suspension
Period, that requires the Companies to make changes in the
Registration Statement or the prospectus in order that the
Registration Statement or the prospectus do not contain an
untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to
make the statements therein (in the case of the prospectus, in
light of the circumstances under which they were made) not
misleading.
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(c) The Companies shall use their reasonable best efforts to
obtain the withdrawal at the earliest possible time, of any order
suspending the effectiveness of the Registration Statement.
(d) The Companies shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without charge,
at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(e) The Companies shall deliver to each Exchanging Dealer and
each Initial Purchaser, and to any other Holder who so requests,
without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if any Initial Purchaser or any such
Holder requests, all exhibits thereto (including those incorporated by
reference).
(f) The Companies shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of
the Shelf Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the
Shelf Registration Statement and any amendment or supplement thereto as
such person may reasonably request. The Companies consent, subject to
the provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the Securities
covered by the prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(g) The Companies shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other
persons required to deliver a prospectus following the Registered
Exchange Offer, without charge, as many copies of the final prospectus
included in the Exchange Offer Registration Statement and any amendment
or supplement thereto as such persons may reasonably request. The
Companies consent, subject to the provisions of this Agreement, to the
use of the prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Participating Broker-Dealer and
such other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale of
the Exchange Securities covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration
Statement.
(h) Prior to any public offering of the Securities pursuant to
any Registration Statement, the Companies shall register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification
of the Securities for offer and sale under the securities or "blue sky"
laws of such states of the United States as any Holder of the
Securities reasonably requests in writing and do any and all other acts
or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement;
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provided, however, that the Companies shall not be required to (i)
qualify generally to do business in any jurisdiction where they are not
then so qualified or (ii) take any action which would subject them to
general service of process or to taxation in any jurisdiction where
they are not then so subject.
(i) The Companies shall cooperate with the Holders of the
Securities to facilitate the timely transfer of the Securities to be
sold pursuant to any Registration Statement free of any restrictive
legends and, to the extent consistent with the terms of the Indenture,
facilitate the timely preparation and delivery of certificates
representing the Securities in such denominations and registered in
such names as the Holders may request a reasonable period of time prior
to sales of the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event (other than an event
resulting in a Suspension Period, in which case the Companies must
comply with this Section 3(j) within 90 days of the termination of such
Suspension Period) contemplated by paragraphs (ii) through (v) of
Section 3(b) above during the period for which the Companies are
required to maintain an effective Registration Statement, the Companies
shall, subject to Section 6(b) hereof, promptly prepare and file a
post-effective amendment to the Registration Statement or a supplement
to the related prospectus and any other required document so that, as
thereafter delivered to Holders of the Securities or purchasers of the
Securities, the prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the
Companies notify the Initial Purchasers, the Holders of the Securities
and any known Participating Broker-Dealer in accordance with paragraphs
(ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchasers, the Holders of the Securities and
any such Participating Broker-Dealers shall suspend use of such
prospectus, and the period of effectiveness of the Shelf Registration
Statement provided for in Section 2(b) above and the Exchange Offer
Registration Statement provided for in Section 1 above shall each be
extended by the number of days from and including the date of the
giving of such notice to and including the date when the Initial
Purchasers, the Holders of the Securities and any known Participating
Broker-Dealer shall have received such amended or supplemented
prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the applicable
Registration Statement, the Companies will provide a CUSIP number for
the Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Initial Securities, the Exchange
Securities or the Private Exchange Securities, as the case may be, in a
form eligible for deposit with The Depository Trust Company.
(l) The Companies will comply with all rules and regulations
of the Commission to the extent and so long as they are applicable to
the Registered Exchange Offer or the
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Shelf Registration, and the Companies will make generally available to
its security holders (or otherwise provide in accordance with Section
11(a) of the Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than 45
days after the end of a 12-month period (or 90 days, if such period is
a fiscal year) beginning with the first month of the Companies' first
fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
(m) The Companies shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended, in a timely manner
and containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Companies shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(n) The Companies may require each Holder of Securities to be
sold pursuant to the Shelf Registration Statement to furnish to the
Companies such information regarding the Holder and the distribution of
the Securities as the Companies may from time to time reasonably
require for inclusion in the Shelf Registration Statement, and the
Companies may exclude from such registration the Securities of any
Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request. The failure to include in
the Shelf Registration Statement any Holder who shall have not provided
all such information shall not constitute a Registration Default (as
defined in Section 6(a) hereof). The Companies may require each Holder
as to which a Shelf Registration Statement is effected to furnish,
update or confirm promptly to the Companies information regarding the
Holder and the distribution of Securities required to be disclosed in
order to make the information previously furnished to the Companies by
such Holder not materially misleading.
(o) The Companies shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
and take all such other action, if any, as any Holder of the Securities
shall reasonably request in order to facilitate the disposition of the
Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Companies shall
(i) make reasonably available for inspection by the Holders of the
Securities, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement and any attorney, accountant or
other agent retained by the Holders of the Securities or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Companies and (ii) cause the
Companies' officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Holders of
the Securities or any such underwriter, attorney, accountant or agent
in connection with the Shelf Registration Statement, in each case, as
shall be reasonably necessary to enable such persons to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers by you and on behalf of
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the other parties, by one counsel designated by and on behalf of such
other parties as described in Section 4 hereof.
(q) In the case of any Shelf Registration, the Companies, if
requested by any Holder of Securities covered thereby, shall cause (i)
their counsel to deliver an opinion and updates thereof relating to the
Securities in customary form (including customary assumptions and
exceptions) and substance substantially similar to that customarily
delivered in public offerings of securities addressed to such Holders
and the managing underwriters, if any, thereof and dated, in the case
of the initial opinion, the effective date of such Shelf Registration
Statement (it being agreed that the matters to be covered by such
opinion shall include, without limitation, the due incorporation and
good standing of the Companies; the qualification of the Companies to
transact business as foreign corporations in each jurisdiction that is
material to the business or operations of such Companies; the due
authorization, execution and delivery of the relevant agreement of the
type referred to in Section 3(o) hereof; the due authorization,
execution, authentication and issuance, and the validity and
enforceability, of the applicable Securities; the absence of material
legal or governmental proceedings involving the Companies; the absence
of governmental approvals required to be obtained in connection with
the Shelf Registration Statement, the offering and sale of the
applicable Securities, or any agreement of the type referred to in
Section 3(o) hereof; the compliance as to form of such Shelf
Registration Statement and any documents incorporated by reference
therein and of the Indenture with the requirements of the Securities
Act and the Trust Indenture Act, respectively; and, as of the date of
the opinion and as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the case
may be, the absence from such Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented, and from
any documents incorporated by reference therein of an untrue statement
of a material fact or the omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading (in the case of any such documents, in the light
of the circumstances existing at the time that such documents were
filed with the Commission under the Exchange Act); (ii) their officers
to execute and deliver all customary documents and certificates and
updates thereof reasonably requested by any underwriters of the
applicable Securities and (iii) their independent public accountants to
provide to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and covering
matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested
by any Initial Purchaser or any known Participating Broker-Dealer, the
Companies shall cause (i) their counsel to deliver to such Initial
Purchaser or such Participating Broker-Dealer a signed opinion in the
form set forth in Section 6(c)-(d) of the Purchase Agreement with such
changes as are customary in connection with the preparation of a
Registration Statement and (ii) its independent public accountants to
deliver to such Initial Purchaser or such
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Participating Broker-Dealer a comfort letter, in customary form,
meeting the requirements as to the substance thereof as set forth in
Section 6(a) of the Purchase Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Initial Securities by Holders to
the Companies (or to such other Person as directed by the Companies) in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Companies shall xxxx, or cause to
be marked, on the Initial Securities so exchanged that such Initial
Securities are being canceled in exchange for the Exchange Securities
or the Private Exchange Securities, as the case may be; in no event
shall the Initial Securities be marked as paid or otherwise satisfied.
(t) The Companies will use their reasonable best efforts to
(a) if the Initial Securities have been rated prior to the initial sale
of such Initial Securities, confirm such ratings will apply to the
Securities covered by a Registration Statement, or (b) if the Initial
Securities were not previously rated, cause the Securities covered by a
Registration Statement to be rated with the appropriate rating
agencies, if so requested by Holders of a majority in aggregate
principal amount of Securities covered by such Registration Statement,
or by the managing underwriters, if any.
(u) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the "RULES") of
the National Association of Securities Dealers, Inc. ("NASD")) thereof,
whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, the Companies will assist such broker-dealer in complying
with the requirements of such Rules, including, without limitation, by
(i) if such Rules, including Rule 2720, shall so require, engaging a
"qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Registration Statement relating
to such Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by
such Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information to
such broker-dealer as may be required in order for such broker-dealer
to comply with the requirements of the Rules.
(v) The Issuer shall cause each Additional Guarantor upon the
creation or acquisition by the Issuer of such Additional Guarantor, to
execute a counterpart to this Agreement in the form attached hereto as
Annex D and to deliver such counterpart, together with an opinion of
counsel as to the enforceability thereof against such entity, to the
Initial Purchasers no later than five business days following the
execution thereof.
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(w) The Companies shall use their reasonable best efforts to
take all other steps necessary to effect the registration of the
Securities covered by a Registration Statement contemplated hereby.
4. Registration Expenses. (a) All expenses incident to the Companies'
performance of and compliance with this Agreement will be borne by the
Companies, regardless of whether a Registration Statement is ever filed or
becomes effective, including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registered Exchange
Offer and the Private Exchange and printing of prospectuses), messenger
and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Companies;
(v) all application and filing fees in connection with
listing the Exchange Securities on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified
public accountants of the Companies (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Companies will bear their internal expenses (including, without limitation,
all salaries and expenses of their officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Companies.
(b) In connection with any Registration Statement required by this
Agreement, the Companies will reimburse the Initial Purchasers and the Holders
of Transfer Restricted Securities who are tendering Initial Securities in the
Registered Exchange Offer and/or selling or reselling Securities pursuant to the
"Plan of Distribution" contained in the Exchange Offer Registration Statement or
the Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Milbank, Tweed, Xxxxxx
& XxXxxx LLP unless another firm shall be chosen by the Holders of a majority in
principal amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
5. Indemnification. (a) The Companies will, jointly and severally,
indemnify and hold harmless each Holder of the Securities and any Participating
Broker-Dealer and their respective partners, directors, officers, employees and,
in the case of transactions pursuant to Section 3(o) hereof, underwriters and
each person, if any, who controls such Holder or such Participating
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Broker-Dealer within the meaning of the Securities Act or the Exchange Act (each
Holder, any Participating Broker-Dealer and such controlling persons are
referred to collectively as the "INDEMNIFIED PARTIES") from and against any
losses, claims, damages or liabilities, joint or several, or any actions in
respect thereof (including, but not limited to, any losses, claims, damages,
liabilities or actions relating to purchases and sales of the Securities) to
which each Indemnified Party may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or prospectus
or in any amendment or supplement thereto or in any preliminary prospectus
relating to a Shelf Registration, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse, as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action in respect thereof;
provided, however, that (i) the Companies shall not be liable in any such case
to the extent that such loss, claim, damage or liability or action arises out of
or is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to a
Shelf Registration in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Companies by or on behalf of such
Indemnified Party or affiliate thereof specifically for inclusion therein; and
(ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus relating to a Shelf
Registration, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Holder or Participating Broker-Dealer from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a final prospectus relating to such
Securities was required to be delivered by such Holder or Participating
Broker-Dealer under the Securities Act in connection with such purchase and any
such loss, claim, damage or liability of such Holder or Participating
Broker-Dealer results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Securities
to such person, a copy of the final prospectus (exclusive of any material
included therein but not attached thereto) if the Companies had previously
furnished copies thereof to such Holder or Participating Broker-Dealer and if
the untrue statement or omission or alleged untrue statement or omission was
corrected in such final prospectus; provided further, however, that this
indemnity agreement will be in addition to any liability which the Companies may
otherwise have to such Indemnified Party. The Companies shall also indemnify
underwriters, their partners, directors, officers and employees and each person
who controls such underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Companies, each of their respective partners,
directors, officers and employees and each person, if any, who controls the
Companies within the meaning of the Securities Act or the Exchange Act from and
against any losses, claims, damages or liabilities or any actions in respect
thereof, to which the Companies, or their partners, directors, officers,
employees or
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controlling persons, may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or prospectus
or in any amendment or supplement thereto or in any preliminary prospectus
relating to a Shelf Registration, or arise out of or are based upon the omission
or alleged omission to state therein a material fact necessary to make the
statements therein not misleading, but in each case only to the extent that the
untrue statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Companies by or on behalf of such Holder
specifically for inclusion therein; and, subject to the limitation set forth
immediately preceding this clause, shall reimburse, as incurred, the Companies
for any legal or other expenses reasonably incurred by the Companies, or their
partners, directors, officers, employees or controlling persons, in connection
with investigating or defending any loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Companies or their partners,
directors, officers, employees or controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 5
of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, and 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) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the
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indemnifying party or parties on the one hand and the indemnified party on the
other from the exchange of the Securities, pursuant to the transactions
contemplated by the applicable Registration Statement or prospectus, or (ii) if
the allocation provided by the foregoing 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 indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Companies on the one hand or such Holder or such other indemnified party, as the
case may be, on the other, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
any other provision of this Section 5(d), the Holders of the Securities shall
not be required to contribute any amount in excess of the amount by which the
net proceeds received by such Holders from the sale of the Securities pursuant
to a Registration Statement exceeds the amount of damages which such Holders
have otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Companies within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Companies.
(e) The agreements contained in this Section 5 shall survive the sale
of the Securities pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "ADDITIONAL INTEREST") with respect to the Initial Securities and
the Private Exchange Securities shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through (iv) below being
herein called a "REGISTRATION DEFAULT"):
(i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing
Deadline;
(ii) any Registration Statement required by this Agreement is not
declared effective by the Commission on or prior to the
applicable Effectiveness Deadline;
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(iii) the Registered Exchange Offer has not been consummated on or
prior to the Consummation Deadline; or
(iv) any Registration Statement required by this Agreement has been
declared effective by the Commission but (A) such Registration
Statement thereafter ceases to be effective or (B) such
Registration Statement or the related prospectus ceases to be
usable in connection with resales of Transfer Restricted
Securities during the periods specified herein because either
(1) any event occurs as a result of which the related
prospectus forming part of such Registration Statement would
include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading, or (2) it shall be necessary to
amend such Registration Statement or supplement the related
prospectus, to comply with the Securities Act or the Exchange
Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Companies or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue on the Initial Securities and the
Private Exchange Securities over and above the interest set forth in the title
of the Securities from and including the date on which any such Registration
Default shall occur to but excluding the date on which all such Registration
Defaults have been cured, at a rate of 0.50% per annum (regardless of the number
of Registration Defaults).
(b) A Registration Default referred to in Section 6(a)(iv) hereof shall
be deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus during any Suspension Period if
(i) such Registration Default has occurred solely as a result of (x) the filing
of a post-effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with respect to the Companies
where such post-effective amendment is not yet effective and needs to be
declared effective to permit Holders to use the related prospectus or (y) other
material events, with respect to the Companies that would need to be described
in such Shelf Registration Statement or the related prospectus and (ii) in the
case of clause (y), the Companies are proceeding promptly and in good faith to
amend or supplement such Shelf Registration Statement and related prospectus to
describe such events; provided, however, that in any case if such Registration
Default occurs for a continuous period in excess of 30 days, Additional Interest
shall be payable in accordance with the above paragraph from the day such
Registration Default occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 6(a)
will be payable in cash on the regular interest payment dates with respect to
the Securities. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount of
the Initial Securities or Private Exchange Notes, as the case may be, multiplied
by a fraction, the numerator of which is the number of days such Additional
Interest
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rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months), and the denominator of which is 360.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until (i) the
date on which such Security has been exchanged by a person other than a
broker-dealer for a freely transferable Exchange Security in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered
Exchange Offer of an Initial Security for an Exchange Security, the date on
which such Exchange Security is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Security has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or (iv) the date
on which such Security is distributed to the public pursuant to Rule 144 under
the Securities Act or is saleable pursuant to Rule 144(k) under the Securities
Act.
7. Rules 144 and 144A. The Companies shall use their reasonable best
efforts to file the reports required to be filed by them under the Securities
Act and the Exchange Act in a timely manner and, if at any time the Companies
are not required to file such reports, they will, upon the request of any Holder
of Transfer Restricted Securities, make publicly available other information so
long as necessary to permit sales of their Securities pursuant to Rules 144 and
144A. The Companies covenant that they will take such further action as any
Holder of Transfer Restricted Securities may reasonably request, all to the
extent required from time to time to enable such Holder to sell Transfer
Restricted Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Companies will provide a copy of this
Agreement to prospective purchasers of Initial Securities identified to the
Companies by the Initial Purchasers upon request. Upon the request of any Holder
of Initial Securities, the Companies shall deliver to such Holder a written
statement as to whether they have complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Companies to register any of their securities pursuant to the
Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
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9. Miscellaneous.
(a) No Inconsistent Agreements. The Companies will not on or after the
date of this Agreement enter into any agreement with respect to their securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Companies' securities under any
agreement in effect on the date hereof.
(b) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Companies and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Companies;
(2) if to the Initial Purchasers:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, III
(3) if to the Companies, at their address as follows:
c/o Dollar General Corporation
000 Xxxxxxx Xxxxx
Xxxxxxxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: General Counsel
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with a copy to:
Bass, Xxxxx & Xxxx PLC
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx III
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(d) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Companies, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(e) Successors and Assigns. This Agreement shall be binding upon the
Companies and their successors and assigns.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(i) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(j) Securities Held by the Companies. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Companies or their affiliates (other
than subsequent Holders of Securities if such subsequent Holders are deemed to
be affiliates solely by reason of their holdings of such Securities) shall not
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Companies a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the several Initial Purchasers and the Companies in accordance
with its terms.
Very truly yours,
DOLLAR GENERAL CORPORATION
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Treasurer
DOLGENCORP, INC.
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Treasurer
DOLGENCORP OF TEXAS, INC.
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Treasurer
DG LOGISTICS, LLC
By: Dolgencorp, Inc., its Managing Member
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Treasurer
DADE LEASE MANAGEMENT, INC.
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Treasurer
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DOLLAR GENERAL PARTNERS
By: Dolgencorp, Inc., a general partner
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Treasurer
By: Dade Lease Management, Inc., a general
partner
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Treasurer
By: Dollar General Financial, Inc., a
general partner
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Treasurer
DOLLAR GENERAL FINANCIAL, INC.
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Treasurer
NATIONS TITLE COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
DOLLAR GENERAL INTELLECTUAL PROPERTY, L.P.
By: Dade Lease Management, Inc., its
General Partner
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Treasurer
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The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
BANC OF AMERICA SECURITIES LLC
WACHOVIA SECURITIES, INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Director
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ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
in exchange for Initial Securities, where such Initial Securities were acquired
by such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
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ANNEX B
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Companies
have agreed that, for a period of 180 days after the Expiration Date, they will
make this prospectus, as amended or supplemented, available to any broker-dealer
for use in connection with any such resale. In addition, until , 2000, all
dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.(1)
The Companies will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Companies will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Companies have agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
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(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
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ANNEX C
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
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Address:
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If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
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ANNEX D
Counterpart To Registration Rights Agreement
The undersigned hereby absolutely, unconditionally and irrevocably agrees
(as a "GUARANTOR") to use its best efforts to include its Guarantee in any
Registration Statement required to be filed by the Issuer and the Guarantors
pursuant to the Registration Rights Agreement, dated as of ______________, 2000
(the "REGISTRATION RIGHTS AGREEMENT") by and among Dollar General Corporation, a
Tennessee corporation, the guarantors named therein and Credit Suisse First
Boston Corporation; to use its best efforts to cause such Registration Statement
to become effective as specified in the Registration Rights Agreement; and to
otherwise be bound by the terms and provisions of the Registration Rights
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart as of
_________, _____.
[NAME]
By:
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Name:
Title:
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