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EXHIBIT 1.1
EXECUTION COPY
DOLLAR GENERAL CORPORATION
$200,000,000
8 5/8 % NOTES DUE JUNE 15, 2010
PURCHASE AGREEMENT
June 16, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
BANC OF AMERICA SECURITIES LLC
WACHOVIA SECURITIES, INC.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue,
New York, New York 10010-3629
Ladies and Gentlemen:
1. Introductory. Dollar General Corporation, a Tennessee corporation
(the "ISSUER"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"PURCHASERS") $200,000,000 principal amount of its 8 5/8 % Notes Due June 15,
2010 (the "OFFERED SECURITIES") guaranteed (the "GUARANTEES") 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; and Dollar General Intellectual
Property, L.P., a Vermont limited partnership (each, a "GUARANTOR" and
collectively, the "GUARANTORS" and, together with the Issuer, the "COMPANIES"),
to be issued under an indenture dated as of June 15, 2000 (the "INDENTURE")
among the Companies and First Union National Bank (as "TRUSTEE").
You have advised us that you will make offers of the Offered Securities
purchased by you hereunder on the terms set forth in the Offering Document (as
defined below), as amended or supplemented, solely to (i) persons whom you
reasonably believe to be a "qualified institutional buyer" (a "QIB") as defined
in Rule 144A ("RULE 144A") under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), (ii) to a limited number of institutional "accredited
investors" as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act
and (iii) outside the United States to persons other than U.S. Persons in
offshore transactions meeting the requirements of Rule 904 of Regulation S
("REGULATION S") under the Securities Act.
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Holders (including subsequent transferees) of the Offered Securities
will have the registration rights set forth in the Registration Rights Agreement
dated the Closing Date (as hereinafter defined) (the "REGISTRATION RIGHTS
AGREEMENT") among the Companies and the Purchasers. Pursuant to the Registration
Rights Agreement, the Companies have agreed to file with the Securities and
Exchange Commission (the "COMMISSION") (i) a registration statement under the
Securities Act registering the offering of notes and guarantees (the "EXCHANGE
SECURITIES" and the "EXCHANGE SECURITY GUARANTEES", respectively) identical in
all material respects to the Offered Securities and the Guarantees (except that
the Exchange Securities and the Exchange Security Guarantees will not contain
terms with respect to transfer restrictions) to be offered in exchange for the
Offered Securities and (ii) under certain circumstances, a shelf registration
statement pursuant to Rule 415 under the Securities Act.
The Companies hereby agree with the Purchasers as follows:
2. Representations and Warranties of the Companies. The Companies,
jointly and severally, represent and warrant to, and agree with, the Purchasers
that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have
been prepared by the Companies. Such preliminary offering circular and
offering circular, as supplemented as of the date of this Agreement,
together with the documents incorporated therein by reference and any
other document approved by the Companies for use in connection with the
contemplated resale of the Offered Securities, are hereinafter
collectively referred to as the "OFFERING DOCUMENT." On the date of
this Agreement and on the Closing Date, the Offering Document does not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
The preceding sentence does not apply to statements in or omissions
from the Offering Document based upon written information furnished to
the Company by any Purchaser through Credit Suisse First Boston
Corporation ("CSFBC") specifically for use therein, it being understood
and agreed that the only such information is that described as such in
Section 7(b) hereof. Except as disclosed in the Offering Document, the
Issuer's Annual Report on Form 10-K and Quarterly Report on Form 10-Q
most recently filed with the Commission and all subsequent reports
(collectively, the "EXCHANGE ACT REPORTS") which have been filed by the
Issuer with the Commission or sent to stockholders pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") when
filed did not 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. Such documents, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange
Act and the rules and regulations of the Commission thereunder.
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(b) The Issuer has been duly incorporated and is an existing
corporation under the laws of the State of Tennessee, with corporate
power and authority to own its properties and conduct its business as
described in the Offering Document; and the Issuer is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified or be in good standing would not have a
material adverse effect on the condition (financial or other),
business, properties, results of operations or general affairs of the
Issuer and its subsidiaries taken as a whole (a "MATERIAL ADVERSE
EFFECT").
(c) Each Guarantor is listed on Schedule B hereto, together with its
jurisdiction of organization and the beneficial ownership of the Issuer
therein. Each Guarantor has been duly organized and is an existing
corporation, limited liability company or partnership, as the case may
be, in good standing under the laws of the jurisdiction of its
organization, with all power and authority to own its properties and
conduct its business as described in the Offering Document; and each
Guarantor is duly qualified to do business as a foreign corporation,
limited liability company or partnership, as the case may be, in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to be so qualified or in good standing would
not have a Material Adverse Effect; all of the issued and outstanding
capital stock of each Guarantor that is a corporation has been duly
authorized and validly issued and is fully paid and nonassessable; the
capital stock of each Guarantor that is a corporation is owned by the
Issuer, directly or through subsidiaries, free and clear of any
mortgage, pledge, lien, security interest, claim, encumbrance or defect
of any kind; and the Guarantors constitute all of the direct and
indirect subsidiaries of the Issuer.
(d) This Agreement has been duly authorized, executed and delivered
by each of the Companies and constitutes a valid and binding obligation
of each of the Companies, enforceable against each of them in
accordance with its terms, except to the extent that (A) enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to creditors' rights and remedies generally
and by general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity) and (B) rights to
indemnity and contribution may be limited by applicable laws.
(e) The Indenture has been duly authorized by each of the Companies
and, when duly executed and delivered by each of the Companies and the
Trustee, will constitute a valid and binding obligation of each of the
Companies, enforceable against each of them in accordance with its
terms, except to the extent that enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditors' rights and remedies generally and by
general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity); and the Indenture conforms
in all material respects to the description thereof contained in the
Offering Document.
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(f) The Registration Rights Agreement has been duly authorized,
executed and delivered by each of the Companies and constitutes a valid
and binding obligation of each of the Companies, enforceable against
each of them in accordance with its terms, except to the extent that
(A) enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors'
rights and remedies generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity) and (B) rights to indemnity and contribution may be limited
by applicable laws; and the Registration Rights Agreement conforms in
all material respects to the description thereof contained in the
Offering Document.
(g) The Offered Securities have been duly authorized by the Issuer,
and when executed, authenticated, issued and delivered in the manner
provided for in the Indenture and sold and paid for as provided in this
Agreement, the Offered Securities will constitute valid and binding
obligations of the Issuer entitled to the benefits of the Indenture and
enforceable against the Issuer in accordance with their terms, except
to the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to creditors' rights and remedies generally and by general principles
of equity (regardless of whether enforcement is sought in a proceeding
at law or in equity); and the Offered Securities conform in all
material respects to the description thereof contained in the Offering
Document.
(h) The Guarantees have been duly authorized by each of the
Guarantors, and when executed, authenticated, issued and delivered in
the manner provided for in the Indenture and sold and paid for as
provided in this Agreement, the Guarantees will constitute valid and
binding obligations of each of the Guarantors entitled to the benefits
of the Indenture and enforceable against each of the Guarantors in
accordance with their terms, except to the extent that enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to creditors' rights and remedies generally
and by general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity); and the Guarantees
conform in all material respects to the description thereof contained
in the Offering Document.
(i) The Exchange Securities have been duly authorized by the Issuer,
and when executed, authenticated, issued and delivered in the manner
provided for in the Indenture and the Registration Rights Agreement,
the Exchange Securities will constitute valid and binding obligations
of the Issuer entitled to the benefits of the Indenture and enforceable
against the Issuer in accordance with their terms, except to the extent
that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors'
rights and remedies generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity).
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(j) The Exchange Security Guarantees have been duly authorized by
each of the Guarantors, and when executed, authenticated, issued and
delivered in the manner provided for in the Indenture and the
Registration Rights Agreement, the Exchange Security Guarantees will
constitute valid and binding obligations of each of the Guarantors
entitled to the benefits of the Indenture and enforceable against each
of the Guarantors in accordance with their terms, except to the extent
that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors'
rights and remedies generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity).
(k) Assuming the accuracy of the representations of the Purchasers
in Section 4, except as disclosed in the Offering Document, the
execution, delivery and performance of the Indenture, the Offered
Securities, the Guarantees, the Exchange Securities, the Exchange
Security Guarantees, the Registration Rights Agreement and this
Agreement and the consummation of the transactions therein and herein
contemplated will not require the consent, approval, authorization, or
order of, or filing with, any governmental agency or body or any court
(except such as have been obtained, such as may be required under
federal securities law in connection with the Registration Rights
Agreement and such as may be required under state securities laws).
(l) The execution, delivery and performance of the Indenture, the
Registration Rights Agreement, the Offered Securities, the Guarantees,
the Exchange Securities, the Exchange Security Guarantees and this
Agreement and the consummation of the transactions therein and herein
contemplated have been duly authorized by all necessary action on the
part of each of the Companies and do not and will not violate or result
in a breach or violation of any of the terms and provisions of, and do
not and will not constitute a default (or an event which with the
giving of notice or the lapse of time or both would constitute a
default) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any material assets or properties of any of
the Companies under (A) the charter, by-laws or other organizational
documents of any of the Companies, (B) any statute, any rule,
regulation, order or decree of any governmental or regulatory agency or
body or any court, domestic or foreign, having jurisdiction over any of
the Companies or any of their properties, assets or operations, or (C)
any indenture, mortgage, loan or credit agreement, note, lease, permit,
license or other agreement or instrument to which any of the Companies
is a party or by which any of them is bound or to which any of the
properties, assets or operations of any of the Companies is subject,
except, in the case of clauses (B) and (C), for such breaches,
violations or defaults which would not have a Material Adverse Effect.
(m) The Companies have good title to all real properties owned by
them, in each case free and clear of any mortgage, pledge, lien,
security interest, claim or other encumbrance or defect; the Companies
hold all leased real property under valid, subsisting and enforceable
leases or subleases with no exceptions that would materially interfere
with the use made or to be made thereof by them; none of the Companies
is in default under any such lease or sublease; and no material claim
of any sort has been asserted by anyone adverse to the rights of the
Companies under any such lease or sublease or affecting or questioning
the right of such entity to the continued possession of
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the leased or subleased properties under any such lease or sublease,
except in each case as would not have a Material Adverse Effect
(individually or in the aggregate).
(n) The Companies possess adequate certificates, authorizations,
licenses or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them except as
would not have a Material Adverse Effect and have not received any
written notice of proceedings relating to the revocation or
modification of any such certificate, authorization, license or permit
that would have a Material Adverse Effect (individually or in the
aggregate).
(o) The Companies own or possess adequate rights to use all material
patents, trademarks, service marks, trade names, copyrights, licenses,
inventions, trade secrets and other rights, and all registrations or
applications relating thereto, described in the Offering Document as
being owned by the Companies and necessary for the conduct of their
business, except as such would not have a Material Adverse Effect
(individually or in the aggregate), and the Companies are not aware of
any pending or threatened claim to the contrary or any pending or
threatened challenge by any other person to the rights of the Companies
with respect to the foregoing which, if determined adversely to the
Companies, would have a Material Adverse Effect (individually or in the
aggregate).
(p) The Companies have filed all tax returns required to be filed
(subject to any extensions of time for the proper filing of such
returns), which returns are complete and correct in all material
respects, and none of the Companies is in default in the payment of any
taxes which were payable pursuant to said returns or any assessments
with respect thereto, other than those not yet delinquent except for
those that have been contested in good faith for which an adequate
reserve has been established, in each case except as would not have a
Material Adverse Effect (individually or in the aggregate).
(q) (A) None of the Companies is in violation of its charter,
by-laws or other organizational documents, (B) none of the Companies is
in violation of any statute, any rule, regulation, order or decree of
any governmental or regulatory agency or body or any court, domestic or
foreign, having jurisdiction over any of the Companies or any of their
properties, assets or operations, and (C) no event of default or event
that, but for the giving of notice or the lapse of time or both, would
constitute an event of default exists, or as a result of consummation
of the issuance of the Offered Securities, the Guarantees, the Exchange
Securities or the Exchange Security Guarantees will exist, under any
indenture, mortgage, loan or credit agreement, note, lease, permit,
license or other agreement or instrument to which any of the Companies
is a party or by which any of them is bound or to which any of the
properties, assets or operations of any of the Companies is subject,
except, in the case of clauses (B) and (C), for such violations and
defaults that would not have a Material Adverse Effect (individually or
in the aggregate).
(r) Except as described in the Offering Document, there are no
pending actions, suits or proceedings against or, to the knowledge of
the Companies, affecting any of the Companies or any of their
respective properties, assets or operations that would have a Material
Adverse Effect, or could materially and adversely affect the ability of
the Companies to perform their obligations under this Agreement, the
Indenture, the
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Registration Rights Agreement, the Offered Securities, the Guarantees,
the Exchange Securities, the Exchange Security Guarantees or any other
document governing the sale of the Offered Securities; and no such
actions, suits or proceedings are, to the knowledge of the Companies,
threatened or contemplated.
(s) Except as disclosed in the Offering Document, since the date of
the latest audited consolidated financial statements of the Companies
included in the Offering Document, none of the Companies has incurred
any liability or obligation, direct or contingent, or entered into any
transaction, in each case not in the ordinary course of business, that
is material to the Companies, taken as a whole, and there has not
occurred, to the Companies' knowledge, any development or event
involving a prospective Material Adverse Effect and, except as
disclosed in or contemplated by the Offering Document, since the date
of the latest audited consolidated financial statements of the
Companies included in the Offering Document, there has been no (i)
dividend or distribution of any kind declared, paid or made by the
Issuer on any class of its capital stock, (ii) issuance of securities
(other than the Offered Securities offered hereby and up to 600,000
shares of common stock issuable upon the exercise of options issued
pursuant to existing employee stock option plans) or (iii) material
increase in short-term or long-term debt of the Companies.
(t) The Companies maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of consolidated financial statements in conformity with
generally accepted accounting principles and to maintain accountability
for assets; and (iii) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(u) Deloitte & Touche LLP, who has certified certain financial
statements of the Companies, whose report is incorporated by reference
in the Offering Document and who will deliver the letters referred to
in Sections 6(a) and 6(g) hereof, are independent public accountants
under Rule 101 of the AICPA's Code of Professional Conduct, and its
interpretation and rulings.
(v) The financial statements, together with the related schedules
and notes, included or incorporated by reference in the Offering
Document present fairly, in all material respects, the financial
position of the Issuer and its consolidated subsidiaries as of the
dates shown and their results of operations and cash flows for the
periods shown, and have been prepared in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis, except as disclosed therein. The other financial and
statistical information set forth in the Offering Document present
fairly, in all material respects, the information shown therein and
have been, except as disclosed therein, compiled on a basis consistent
with that of the financial statements included or incorporated by
reference in the Offering Document.
(w) None of the Companies is, and, upon sale of the Offered
Securities and the application of the net proceeds of such sale as
described in the Offering Document, none
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of them will be, an "investment company" or an entity "controlled" by
an "investment company" within the meaning of such terms under the
Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY
ACT") and the rules and regulations of the Commission thereunder.
(x) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6
of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system.
(y) Assuming the accuracy of the representations and warranties of
the Purchasers contained in Section 4 hereof, the initial placement of
the Offered Securities by the Purchasers in the manner contemplated by
this Agreement will be exempt from the registration requirements of the
Securities Act by reason of Section 4(2) thereof and Regulation S
thereunder; and it is not necessary to qualify an indenture in respect
of the Offered Securities under the United States Trust Indenture Act
of 1939, as amended (the "TRUST INDENTURE ACT").
(z) None of the Companies nor any of their affiliates nor any person
acting on its or their behalf (i) has, within the six-month period
prior to the date hereof, offered or sold in the United States or to
any U.S. person (as such terms are defined in Regulation S under the
Securities Act) the Offered Securities or any security of the same
class or series as the Offered Securities or (ii) has offered or will
offer or sell the Offered Securities (A) in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act or (B) with respect to
any securities sold in reliance on Rule 903 of Regulation S, by means
of any directed selling efforts within the meaning of Rule 902(b) of
Regulation S. The Companies, their affiliates and any person acting on
their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. The Companies have not
entered and will not enter into any contractual arrangement with
respect to the distribution of the Offered Securities except for this
Agreement.
(aa) None of the Companies has taken or will take, directly or
indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Offered Securities to
facilitate the sale or resale of the Offered Securities.
(bb) None of the Companies has taken, and none of them will take,
any action that might cause this Agreement or the issuance or sale of
the Offered Securities to violate Regulation T (12 C.F.R. Part 220),
Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224)
of the Board of Governors of the Federal Reserve System.
(cc) There are no contractual restrictions on transfers of the
Offered Securities pursuant to any contracts or other similar
instruments to which the Issuer is a party, except as described in the
Offering Document and as required by Rule 144A, Regulation S or
Regulation D under the Securities Act.
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(dd) The Issuer is subject to Section 13 or 15(d) of the Exchange
Act.
The Companies acknowledge that the Purchasers and, for purposes of the
opinions to be delivered to the Purchasers pursuant to Section 6 hereof, counsel
to the Companies and counsel to the Purchasers, will rely upon the accuracy and
truth of the foregoing representations and hereby consents to such reliance.
Each certificate signed by any officer or representative of any of the Companies
and delivered to the Purchasers or counsel for the Purchasers shall be deemed to
be a representation and warranty by such Company to the Purchasers as to the
matters covered thereby.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Issuer agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Issuer, at a purchase price of 99.184 % of the principal amount thereof
plus accrued interest, if any, from June 21, 2000 to the Closing Date (as
hereinafter defined) the respective principal amounts of Offered Securities set
forth opposite the names of the several Purchasers in Schedule A hereto.
The Issuer will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global securities in
registered form without interest coupons (the "GLOBAL SECURITIES") which will be
deposited with the Trustee as custodian for The Depository Trust Company ("DTC")
and registered in the name of Cede & Co., as nominee for DTC. Interests in any
Global Securities will be held only in book-entry form through DTC, except in
the limited circumstances described in the Offering Document. Offered Securities
sold to institutional "accredited investors," as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act, will be delivered as definitive fully
registered certificates (the "DEFINITIVE SECURITIES") in such names and in such
denominations as CSFBC may request.
Payment for the Offered Securities shall be made by the several
Purchasers in federal (same day) funds by wire transfer to an account at a bank
acceptable to CSFBC drawn to the order of the Issuer at the offices of Milbank,
Tweed, Hadley & McCloy LLP, 1 Chase Manhattan Plaza, New York, New York 10005,
at 9:00 a.m. (New York time), on June 21, 2000, or at such other time and date
not later than seven full business days thereafter as CSFBC and the Issuer
determine, such time and date being herein referred to as the "CLOSING DATE,"
against delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities. The Global Securities and the
Definitive Securities will be made available for checking at the above offices
of Milbank, Tweed, Hadley & McCloy LLP at least 24 hours prior to the Closing
Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each
Purchaser severally represents and warrants to the Issuer that it is a QIB and
an institutional "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursuant
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to an exemption from the registration requirements of the Securities Act. Each
Purchaser severally represents and agrees that it has offered and sold the
Offered Securities, and will offer and sell the Offered Securities only in
accordance with Regulation S, Rule 144A or Regulation D under the Securities
Act. Accordingly, neither such Purchaser nor its affiliates, nor any persons
acting on its or their behalf, have engaged or will engage in any directed
selling efforts with respect to the Offered Securities, and such Purchaser, its
affiliates and all persons acting on its or their behalf have complied and will
comply with the offering restrictions requirement of Regulation S, Rule 144A and
Regulation D under the Securities Act.
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with respect
to the distribution of the Offered Securities except for any such arrangements
with the other Purchasers or affiliates of the other Purchasers or with the
prior written consent of the Issuer.
(d) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means of
any form of general solicitation or general advertising, within the meaning of
Rule 502(c) under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or otherwise
prior to settlement of such resale a notice to the effect that the resale of
such Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A. Each
Purchaser further agrees, with respect to resales made to institutional
"accredited investors" under Rule 501(a)(1), (2), (3) or (7), each such investor
shall have completed and delivered a letter substantially in the form of Annex A
to the Offering Document to the Purchaser prior to the confirmation of any
order.
(e) Each of the Purchasers severally represents and agrees that (i) it
has not offered or sold and, prior to the date six months after the date of
issuance of the Offered Securities, will not offer or sell any Offered
Securities to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has complied and will comply with
all applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Offered Securities to a person who is of a kind
described in Article 11 (3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on.
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5. Certain Agreements of the Companies. Each of the Companies agrees
with the Purchasers that:
(a) The Companies will advise CSFBC promptly of any proposal to amend
or supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC's consent, which consent will not be unreasonably
withheld. If, at any time prior to the completion of the resale of the Offered
Securities by the Purchasers, any event occurs as a result of which the Offering
Document as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, the Companies will promptly notify CSFBC of such event and
will promptly prepare at its own expense an amendment or supplement that will
correct such statement or omission. Neither CSFBC's consent to, nor the
Purchasers' delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6 of this Agreement.
(b) The Companies will furnish to CSFBC copies of any preliminary
offering circular, the Offering Document and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as
CSFBC requests, and the Issuer will furnish to CSFBC on the date hereof three
copies of the Offering Document signed by a duly authorized representative of
the Issuer. At any time when the Issuer is not subject to Section 13 or 15(d) of
the Exchange Act, the Companies will promptly furnish or cause to be furnished
to CSFBC (and, upon request, to each of the other Purchasers) and, upon request
of holders and prospective purchasers of the Offered Securities, to such holders
and purchasers, copies of the information required to be delivered to holders
and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of the
Offered Securities. The Companies, jointly and severally, will pay the expenses
of printing and distributing to the Purchasers all such documents.
(c) The Companies will use their reasonable best efforts to arrange for
the qualification of the Offered Securities and the determination of their
eligibility for investment under the blue sky laws of such jurisdictions as
CSFBC designates and will continue such qualifications in effect so long as
required for the resale of the Offered Securities by the Purchasers, provided
that the Companies will not be required to qualify as a foreign corporation or
to file a general consent to service of process or subject it to taxation in any
such state.
(d) So long as any of the Offered Securities are outstanding, the
Issuer will, upon request, furnish to CSFBC and each of the other Purchasers, as
soon as practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and, upon request, the Issuer will furnish
to CSFBC and to each of the other Purchasers, (i) as soon as available, a copy
of each report and any definitive proxy statement of the Issuer filed with the
Commission under the Exchange Act or mailed to stockholders, and (ii) for one
year from the Closing Date, such other information concerning the Issuer as
CSFBC may reasonably request.
(e) During the period of two years after the Closing Date or, if
earlier, until such time as the Offered Securities are no longer restricted
securities (as defined in Rule 144 under the
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Securities Act), the Issuer will, upon request, furnish to CSFBC, each of the
other Purchasers, and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, or, if
earlier, until such time as the Offered Securities are no longer restricted
securities (as defined in Rule 144 under the Securities Act), the Companies will
not, and will not permit any of their affiliates (as defined in Rule 144 under
the Securities Act) to, resell any of the Offered Securities that have been
reacquired by any of them.
(g) During the period of two years after the Closing Date, none of the
Companies will be or become, an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act.
(h) The Companies will, jointly and severally, pay all expenses
incidental to the performance of their obligations under this Agreement and the
Indenture including (i) the fees and expenses of the Trustee and its
professional advisors; (ii) all expenses in connection with the execution,
issue, authentication, packaging and initial delivery of the Offered Securities,
the preparation and printing of the Offering Document and amendments and
supplements thereto, and any other document relating to the issuance, offer,
sale and delivery of the Offered Securities; (iii) for any expenses (including
fees and disbursements of counsel to the Purchasers) incurred in connection with
qualification of the Offered Securities for sale under the blue sky laws of such
jurisdictions as CSFBC designates and the printing of memoranda relating
thereto; (iv) for any fees charged by investment rating agencies for the rating
of the Offered Securities; and (v) for expenses incurred in distributing
preliminary offering circulars and the Offering Document (including any
amendments and supplements thereto) to the Purchasers.
(i) In connection with the offering, until CSFBC shall have notified
the Issuer and the other Purchasers of the completion of the resale of the
Offered Securities, none of the Companies nor any of their affiliates has or
will, either alone or with one or more other persons, bid for or purchase for
any account in which it or any of its affiliates has a beneficial interest any
Offered Securities or attempt to induce any person to purchase any Offered
Securities; and none of the Companies nor any of their affiliates will make bids
or purchases for the purpose of creating actual, or apparent, active trading in,
or of raising the price of, the Offered Securities.
(j) Until the later of the Closing Date or the completion of the
initial offering of the Offered Securities by the Purchasers (but in no event
more than 30 days after the initial offering of the Offered Securities by the
Purchasers), none of the Companies will offer, sell, contract to sell, announce
its intention to sell, pledge or otherwise dispose of, directly or indirectly,
any United States dollar-denominated debt securities issued or guaranteed by any
of the Companies and having a maturity of more than one year from the date of
issue without the prior written consent of CSFBC. None of the Companies will at
any time offer, sell, contract to sell, pledge or otherwise dispose of, directly
or indirectly, any securities under circumstances where such offer, sale,
pledge, contract or disposition would cause the exemption afforded by Section
4(2) of the Securities Act or the safe harbor under Regulation S thereunder to
cease to be applicable to the offer and sale of the Offered Securities.
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(k) The Issuer will apply the net proceeds of the Offering on the sale
of the Offered Securities in the manner set forth in the Offering Document under
the caption "Use of Proceeds."
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities on the
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Companies contained herein, to the accuracy of the
statements of officers or other representatives of the Companies made pursuant
to the provisions hereof, to the performance by the Companies of their
obligations hereunder, and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this
Agreement, of Deloitte & Touche LLP, confirming that they are independent public
accountants within the meaning of the Securities Act and the applicable
published rules and regulations thereunder ("RULES AND REGULATIONS") and to the
effect that:
(i) in their opinion the financial statements and schedules examined
by them and included or incorporated by reference in the Offering
Document and in the Exchange Act Reports comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of unaudited
interim consolidated financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on the
unaudited financial statements included or incorporated by reference in
the Offering Document and in the Exchange Act Reports;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available unaudited interim consolidated
financial statements of the Issuer, inquiries of officials of the
Issuer who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited financial statements included or incorporated
by reference in the Offering Document and the Exchange Act
Reports do not comply as to form in all material respects
with the applicable accounting requirements of the
Securities Act and the related published Rules and
Regulations or any material modifications should be made to
such unaudited financial statements for them to be in
conformity with generally accepted accounting principles;
(B) the information set forth under the caption "Selected
Consolidated Financial and Operating Data" in the Offering
Document does not agree with the amounts set forth in the
unaudited consolidated financial statements for those same
periods or was not determined on a basis substantially
consistent with that of the corresponding amounts in the
audited financial statements included or incorporated by
reference in the Offering Document and the Exchange Act
Reports;
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(C) at the date of the latest available balance sheet read by
such accountants, and at a subsequent specified date not
more than three business days prior to the date of this
Agreement, there was any decrease in shareholders' equity
or change in the capital stock or any increase in
short-term debt or long-term debt of the Issuer and its
consolidated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there was
any decrease in consolidated total current assets or total
assets, as compared with amounts shown on the latest
balance sheet included or incorporated by reference in the
Offering Document; or
(D) for the period from the closing date of the latest income
statement included or incorporated by reference in the
Offering Document to the closing date of the latest
available income statement read by such accountants there
were any decreases, as compared with the corresponding
period of the previous year and with the period of
corresponding length ended the date of the latest income
statement included or incorporated by reference in the
Offering Document, in consolidated net sales, operating
profit or the total or per share amounts of net income, or
any increases or decreases, as the case may be, in other
items specified by CSFBC;
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Offering Document discloses have occurred or
may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts), numerical data and other financial
information contained in the Offering Document and the Exchange Act
Reports (in each case to the extent that such dollar amounts,
percentages, numerical data and other financial information are derived
from the general accounting records of the Issuer and its subsidiaries
subject to the internal controls of the Issuer's accounting system or
are derived directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages, numerical data and other
financial information to be in agreement with such results except as
otherwise specified in such letter.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would, in the judgment of CSFBC, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the secondary market,
or (ii) (A) any change, or any development involving a prospective change, in
the condition (financial or other), business, properties or results of
operations of the Companies which, in the judgment of a majority in interest of
the Purchasers including CSFBC, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the offering or the sale of and
payment for the Offered Securities; (B) any downgrading in the rating of any
debt securities of the Issuer by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization
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has under surveillance or review its rating of any debt securities of the Issuer
(other than an announcement with positive implications of a possible upgrading,
and no stated implications of a possible downgrading, of such rating); (C) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any exchange or
in the over-the-counter market; (D) any banking moratorium declared by U.S.
Federal or New York authorities; or (E) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Purchasers
including CSFBC, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the offering or sale of and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated the Closing
Date, of Bass, Berry & Sims PLC, counsel for the Companies, to the effect that:
(i) Each of the Companies is a validly existing corporation, limited
liability company or partnership, as the case may be, in good standing
under the laws of the jurisdiction of its organization, with all
corporate, limited liability company or partnership, as the case may
be, power and authority to own, lease and operate its properties and to
conduct its business as described in the Offering Document.
(ii) This Agreement has been duly authorized, executed and delivered
by the Companies and constitutes a valid and binding obligation of each
of the Companies.
(iii) The Indenture has been duly authorized, executed and delivered
by each of the Companies; the Offered Securities and the Guarantees
have been duly authorized and executed by each of the Companies party
thereto and delivered by each of the Companies to the Trustee for
authentication; and the Indenture, the Offered Securities and the
Guarantees (assuming the due execution, authentication and delivery by
the Trustee of the Offered Securities, and the payment therefor in
accordance with the terms of this Agreement) constitute valid and
binding obligations of each of the Companies enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to creditors' rights and remedies generally and
by general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity); and the Offered Securities
are entitled to the benefits of the Indenture.
(iv) The Registration Rights Agreement has been duly authorized,
executed and delivered by each of the Companies and constitutes a valid
and binding obligation of each of the Companies, enforceable against
each of them in accordance with its terms, except to the extent that
(A) enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors'
rights and remedies generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity) and (B) rights to indemnity and contribution may be limited
by applicable laws.
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(v) Assuming (A) the accuracy of the representations and warranties
of the Companies set forth in Section 2 hereof and of the Purchasers
set forth in Section 4 hereof and (B) the due performance by the
Companies of the covenants and agreements set forth in Section 5 hereof
and the due performance by the Purchasers of the covenants set forth in
Section 4 hereof, it is not necessary in connection with (A) the offer,
sale and delivery of the Offered Securities and the Guarantees to the
Purchasers pursuant to this Agreement or (B) the initial placement of
the Offered Securities and the Guarantees by the Purchasers in the
manner contemplated hereby to register the Offered Securities or the
Guarantees under the Securities Act or to qualify an indenture in
respect thereof under the Trust Indenture Act; provided that such
counsel need not express an opinion as to any subsequent resale of the
Offered Securities.
(vi) None of the Companies is, and, upon sale of the Offered
Securities and the application of the net proceeds of such sale as
described in the Offering Document, none of them will be, an
"investment company" or an entity "controlled" by an "investment
company" within the meaning of such terms under the Investment Company
Act and the rules and regulations of the Commission thereunder.
(vii) No consent, approval, authorization, order, registration or
qualification of, or filing with, any governmental or regulatory agency
or body or any court is required on the part of the Companies for the
execution and delivery by the Companies (or the consummation of the
transactions which are the subject) of the Indenture, the Offered
Securities, the Guarantees, the Exchange Securities, the Exchange
Security Guarantees, the Registration Rights Agreement and this
Agreement (except (A) such as may have been obtained and made, (B) such
as may be required by federal securities law pursuant to the
Registration Rights Agreement and (C) such as may be required under
state securities laws).
(viii) The execution, delivery and performance of the Indenture, the
Offered Securities, the Guarantees, the Exchange Securities, the
Exchange Security Guarantees, the Registration Rights Agreement and
this Agreement by each of the Companies and the consummation of the
transactions therein and herein contemplated have been duly authorized
by all necessary corporate or other action on the part of each such
Company and does not and will not violate or result in a breach or
violation of any of the terms and provisions of, and does not and will
not constitute a default (or an event which with the giving of notice
or the lapse of time or both would constitute a default) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any material assets or properties of each such Company, and each
such Company is not in violation of (A) the charter, by-laws or other
organizational documents of each such Company, (B) to the knowledge of
such counsel, any statute, rule, regulation, order or decree of any
governmental or regulatory agency or body or any court having
jurisdiction over each such Company or any of their properties, assets
or operations or (C) to the knowledge of such counsel, any indenture,
mortgage, loan or credit agreement, note, lease, permit, license or
other agreement or instrument to which each such Company is a party or
by which each such Company is bound or to which any of the properties,
assets or operations of each such Company is subject, except, in the
case of clauses (B) and (C),
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for such breaches or violations which would not have a Material Adverse
Effect (individually or in the aggregate).
(ix) Such counsel have considered the statements relating to legal
matters or documents included in the Offering Document under the
headings "Description of Notes" and "Federal Income Tax Considerations"
and, in such counsels' opinion, such statements fairly summarize, in
all material respects, such legal matters or documents.
(x) The courts of the State of Tennessee will enforce the choice of
law provisions contained in this Agreement, the Registration Rights
Agreement, the Indenture, the Offered Securities and the Guarantees
that expressly provide that the terms and provisions thereof will be
governed by and construed in accordance with the laws of the State of
New York.
(xi) Such counsel have no reason to believe that the Offering
Document, or any amendment or supplement thereto as of the date thereof
and as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary to make
the statements therein not misleading; it being understood that such
counsel need express no opinion as to the financial statements or other
financial or statistical data contained in the Offering Document and
the Exchange Act Reports. Such counsel may state that their belief is
based upon their participation in the preparation of the Offering
Document (and any amendments or supplements thereto) and review and
discussion of the contents thereof (including participation in the
preparation of the incorporated documents), but are without independent
check or verification except as specified.
(d) The Purchasers shall have received an opinion, dated the Closing
Date, of Larry Wilcher, Esq., General Counsel of the Company, to the effect
that:
(i) Each of the Companies is duly qualified to do business as a
foreign corporation, limited liability company, limited partnership or
general partnership, as the case may be, in good standing in all
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except to the
extent that the failure to be so qualified or in good standing would
not have a Material Adverse Effect; each of the Companies has been duly
organized and is a validly existing corporation, limited liability
company or partnership, as the case may be, in good standing under the
laws of the jurisdiction of its organization, with all corporate,
limited liability company or partnership, as the case may be, power and
authority to own, lease and operate its properties and to conduct its
business as described in the Offering Document.
(ii) All of the outstanding shares of capital stock of, or other
ownership interests in, each of the Guarantors have been duly and
validly authorized and issued and are fully paid and non-assessable,
and the shares of capital stock of, or other ownership interests in,
each Guarantor owned by the Issuer, directly or through subsidiaries,
are owned, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature.
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(iii) The execution, delivery and performance of the Indenture, the
Offered Securities, the Guarantees, the Exchange Securities, the
Exchange Security Guarantees, the Registration Rights Agreement and
this Agreement by each of the Companies and the consummation of the
transactions therein and herein contemplated have been duly authorized
by all necessary corporate or other action on the part of each such
Company and does not and will not violate or result in a breach or
violation of any of the terms and provisions of, and does not and will
not constitute a default (or an event which with the giving of notice
or the lapse of time or both would constitute a default) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any material assets or properties of each such Company, and each
such Company is not in violation of (A) the charter, by-laws or other
organizational documents of each such Company, (B) to the knowledge of
such counsel, any statute, rule, regulation, order or decree of any
governmental or regulatory agency or body or any court having
jurisdiction over each such Company or any of their properties, assets
or operations or (C) to the knowledge of such counsel, any indenture,
mortgage, loan or credit agreement, note, lease, permit, license or
other agreement or instrument to which each such Company is a party or
by which each such Company is bound or to which any of the properties,
assets or operations of each such Company is subject, except, in the
case of clauses (B) and (C), for such breaches or violations which
would not have a Material Adverse Effect (individually or in the
aggregate).
(iv) Except as described in the Offering Document, there are no
pending actions, suits or proceedings against any of the Companies or
any of their respective properties, assets or operations that would
have a Material Adverse Effect, or could materially and adversely
affect the ability of any of the Companies to perform their obligations
under this Agreement, the Indenture, the Registration Rights Agreement,
the Offered Securities, the Guarantees; the Exchange Securities or the
Exchange Security Guarantees; and no such actions, suits or proceedings
are, to the knowledge of such counsel, threatened or contemplated.
(v) Such counsel has no reason to believe that the Offering
Document, or any amendment or supplement thereto, as of the date
thereof and as of the Closing Date or any Exchange Act Report, as of
the date such report was filed, contained any untrue statement of a
material fact or omitted to state any material fact necessary to make
the statements therein not misleading; it being understood that such
counsel need express no opinion as to the financial statements or other
financial or statistical data contained in the Offering Document and
the Exchange Act Reports.
(e) The Purchasers shall have received on the Closing Date an opinion,
dated the Closing Date, of Milbank, Tweed, Hadley & McCloy LLP, counsel for the
Purchasers, with respect to the validity of the Offered Securities, the
Guarantees, the Offering Document, the exemption from registration for the offer
and sale of the Offered Securities by the Issuer and of the Guarantees by the
Guarantors to the Purchasers and such other related matters as CSFBC may
require, and the Companies shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon such matters.
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(f) The Purchasers shall have received a certificate, dated the Closing
Date, of the President or any Vice President and the principal financial or
accounting officer of the Issuer in which such officers, to their knowledge
after reasonable investigation, shall state that (A) the representations and
warranties of each of the Companies in this Agreement are true and correct, (B)
each of the Companies has complied in all material respects with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, and (C) subsequent to the dates of the most
recent financial statements included or incorporated by reference in the
Offering Document, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in the
condition (financial or other), business, properties, results of operations or
general affairs of the Companies, taken as a whole other than those set forth in
or contemplated by the Offering Document or as described in such certificate.
(g) The Purchasers shall have received a letter, dated the Closing
Date, of Deloitte & Touche LLP that meets the requirements of subsection (a) of
this Section, except that the specified date referred to in such subsection will
be a date not more than three business days prior to the Closing Date for the
purposes of this subsection.
The Companies will furnish the several Purchasers with such conformed
copies of such opinions, certificates, letters and documents as the Purchasers
reasonably request. CSFBC may in its sole discretion waive on behalf of the
Purchasers compliance with any conditions to the obligations of the Purchasers
hereunder.
7. Indemnification and Contribution. (a) The Companies will, jointly
and severally, indemnify and hold harmless each Purchaser, its partners,
directors, officers and employees and each person, if any, who controls such
Purchaser within the meaning of the Securities Act or the Exchange Act, from and
against any losses, claims, damages or liabilities, joint or several, to which
the Purchaser, or any such partner, director, officer, employee or controlling
person, may become subject, under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
including any losses, claims, damages or liabilities arising out of or based
upon the Companies' failure to perform their obligations under Section 5(a) of
this Agreement, and will reimburse, as incurred, any legal or other expenses
reasonably incurred by such Purchaser, or any such partner, director, officer,
employee or controlling person, in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Companies will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Companies by any Purchaser through CSFBC
specifically for use therein, it being understood and agreed that the only such
information furnished by the Purchasers consists of the information described as
such in subsection (b) below; provided, further, that with respect to any untrue
statement or omission or alleged untrue statement or omission from any
preliminary offering
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circular, the indemnity agreements contained in this subsection (a) shall not
inure to the benefit of any Purchaser that sold Offered Securities to the person
asserting any such losses, claims, damages or liabilities to the extent that
such sale was an initial resale by such Purchaser and any such loss, claim,
damage or liability of such Purchaser results from the fact that there were not
sent or given to such person, at or prior to the written confirmation of the
sale of such Offered Securities to such person, a copy of the final offering
circular (exclusive of any material included therein but not attached thereto)
if the Companies had previously furnished copies thereof to such Purchaser and
if the untrue statement or omission or alleged untrue statement or omission was
corrected in such final offering circular.
(b) Each Purchaser will severally and not jointly 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 to which the Companies, or any of their partners,
directors, officers, employees or controlling persons, may become subject, under
the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Offering Document, or any amendment or supplement thereto,
or any related preliminary offering circular, or arise out of or are based upon
the omission or the alleged omission to state therein 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 each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Purchaser through CSFBC
specifically for use therein, and will reimburse, as incurred, 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 such loss, claim, damage, liability or action as
such expenses are incurred; it being understood and agreed that the only such
information furnished to the Companies by any Purchaser consists of the
information in the Offering Document furnished (i) on behalf of each Purchaser,
under the caption "Plan of Distribution," paragraphs three and eight; and (ii)
on behalf of Banc of America Securities LLC and Wachovia Securities LLC, under
the caption "Plan of Distribution," paragraph ten; provided, however, that the
Purchasers shall not be liable for any losses, claims, damages, or liabilities
arising out of or based upon the Companies' failure to perform their obligations
under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such
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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 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of the indemnified
party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Companies on the
one hand and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Companies on the one hand and the Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Companies on the one hand
and the Purchasers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Issuer bear to the total discounts and commissions received by the
Purchasers from the Issuer under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Companies or the
Purchasers 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 the
provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered
Securities purchased by it were resold exceeds the amount of any damages which
such Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in proportion to
their respective purchase obligations and not joint.
(e) The obligations of the Companies under this Section shall be in
addition to any liability which the Companies may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Purchaser within the meaning of the Securities Act or the Exchange Act; and
the obligations of the Purchasers under this Section shall be in addition to any
liability which the respective Purchasers may otherwise have and shall
21
<PAGE> 22
extend, upon the same terms and conditions, to each person, if any, who controls
the Companies within the meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of the Offered Securities, CSFBC may make arrangements
satisfactory to the Issuer for the purchase of such Offered Securities by other
persons, including any of the Purchasers, but if no such arrangements are made
by the Closing Date, the non-defaulting Purchasers shall be obligated severally,
in proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of the
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total principal amount of the Offered Securities and arrangements
satisfactory to CSFBC and the Issuer for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Purchaser or
the Company, except as provided in Section 9. As used in this Agreement, the
term "Purchaser" includes any person substituted for a Purchaser under this
Section. Nothing herein will relieve a defaulting Purchaser from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Companies, or their respective representatives, officers or directors, and of
the several Purchasers set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Purchaser, the Companies
or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Companies shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 5 and the respective obligations of the
Companies, and the Purchasers pursuant to Section 7 shall remain in effect, but
shall not inure to the benefit of any defaulting Purchaser. If the purchase of
the Offered Securities by the Purchasers is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (C), (D) or (E) of Section
6(b)(ii), the Companies will reimburse the Purchasers for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers, will be mailed, delivered or telegraphed and confirmed
to the Purchasers c/o CSFBC, Eleven Madison Avenue, New York, N.Y. 10010-3629,
Attention: Investment Banking Department - Transactions Advisory Group, or, if
sent to the Companies, will be mailed, delivered or telegraphed and confirmed to
it c/o the Issuer at 100 Mission Ridge, Goodlettsville, Tennessee 37072-2170,
Attention: General Counsel.
22
<PAGE> 23
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder.
12. Representation of Purchasers. CSFBC will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by you will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Companies hereby submit to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding brought by another party to this Agreement arising out of
or relating to this Agreement or the transactions contemplated hereby.
23
<PAGE> 24
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Issuer, the Guarantors
and the several Purchasers in accordance with its terms.
Very truly yours,
DOLLAR GENERAL CORPORATION
By: /s/ Wade Smith
----------------------------------------
Name: Wade Smith
Title: Treasurer
DOLGENCORP, INC.
By: /s/ Wade Smith
----------------------------------------
Name: Wade Smith
Title: Treasurer
DOLGENCORP OF TEXAS, INC.
By: /s/ Wade Smith
----------------------------------------
Name: Wade Smith
Title: Treasurer
DG LOGISTICS, LLC
By: Dolgencorp, Inc., its Managing Member
By: /s/ Wade Smith
----------------------------------------
Name: Wade Smith
Title: Treasurer
DADE LEASE MANAGEMENT, INC.
By: /s/ Wade Smith
----------------------------------------
Name: Wade Smith
Title: Treasurer
24
<PAGE> 25
DOLLAR GENERAL PARTNERS
By: Dolgencorp, Inc., a general partner
By: /s/ Wade Smith
----------------------------------------
Name: Wade Smith
Title: Treasurer
By: Dade Lease Management, Inc., a general
partner
By: /s/ Wade Smith
----------------------------------------
Name: Wade Smith
Title: Treasurer
By: Dollar General Financial, Inc., a
general partner
By: /s/ Wade Smith
----------------------------------------
Name: Wade Smith
Title: Treasurer
DOLLAR GENERAL FINANCIAL, INC.
By: /s/ Wade Smith
----------------------------------------
Name: Wade Smith
Title: Treasurer
NATIONS TITLE COMPANY, INC.
By: /s/ Robert C. Layne
----------------------------------------
Name: Robert C. Layne
Title: Secretary
DOLLAR GENERAL INTELLECTUAL PROPERTY, L.P.
By: Dade Lease Management, Inc., its
General Partner
By: /s/ Wade Smith
----------------------------------------
Name: Wade Smith
Title: Treasurer
25
<PAGE> 26
The foregoing Purchase Agreement is
hereby confirmed accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
BANC OF AMERICA SECURITIES LLC
WACHOVIA SECURITIES, INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Joseph D. Fashano
--------------------------------------------
Name: Joseph D. Fashano
Title: Director
26
<PAGE> 27
SCHEDULE A
<TABLE>
<CAPTION>
Principal Amount
Purchaser of Offered Securities
--------- ---------------------
<S> <C>
Credit Suisse First Boston Corporation $114,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 52,000,000
Banc of America Securities LLC 30,000,000
Wachovia Securities, Inc. 4,000,000
------------
Total $200,000,000
============
</TABLE>
A-1
<PAGE> 28
SCHEDULE B
Guarantors
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------
GUARANTOR NAME JURISDICTION OF ISSUER'S BENEFICIAL
ORGANIZATION IMMEDIATE OWNERSHIP OWNERSHIP
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Dade Lease Management, Inc. ("DADE") Delaware 100% -- Issuer 100%
---------------------------------------------------------------------------------------------------------------
DG Logistics, LLC Tennessee 100% -- Dolgencorp 100%
---------------------------------------------------------------------------------------------------------------
Dolgencorp of Texas, Inc. Kentucky 100% -- Dolgencorp 100%
("DOLGENCORP TEXAS")
---------------------------------------------------------------------------------------------------------------
Dolgencorp, Inc. ("DOLGENCORP") Kentucky 100% -- Issuer 100%
---------------------------------------------------------------------------------------------------------------
Dollar General Financial, Inc. Tennessee 100% -- Issuer 100%
("DG FINANCIAL")
---------------------------------------------------------------------------------------------------------------
Dollar General Intellectual Vermont 99% -- Greater Cumberland 100%
Property, L.P. 1% -- Dade
---------------------------------------------------------------------------------------------------------------
Dollar General Partners Kentucky 77% -- Dolgencorp 100%
21% -- Dade
2% -- DG Financial
---------------------------------------------------------------------------------------------------------------
Nations Title Company, Inc. Tennessee 100% -- DG Financial 100%
---------------------------------------------------------------------------------------------------------------
</TABLE>
B-1
