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Exhibit (h)(1)
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DOLLAR GENERAL STRYPES TRUST
(a Delaware business trust)
PURCHASE AGREEMENT
Dated: ____________, 1998
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Table of Contents
Page
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SECTION 1. Representations and Warranties................................. 4
(a) Representations and Warranties by the Trust......................... 4
(b) Representations and Warranties by the Contracting
Stockholder......................................................... 9
(c) Officer's Certificates.............................................. 12
SECTION 2. Sale and Delivery to Underwriters; Closing..................... 13
(a) Initial Securities.................................................. 13
(b) Option Securities................................................... 13
(c) Payment............................................................. 13
(d) Denominations; Registration......................................... 14
SECTION 3. Covenants...................................................... 14
(a) Covenants of the Trust.............................................. 14
(b) Covenant of the Contracting Stockholder............................. 16
SECTION 4. Payment of Expenses............................................ 17
(a) Expenses Payable by the Contracting Stockholder..................... 17
(b) Termination of Agreement............................................ 17
(c) Allocation of Expenses.............................................. 17
SECTION 5. Conditions..................................................... 17
(a) Conditions of Underwriters' Obligations............................. 17
(b) Termination of Agreement............................................ 22
SECTION 6. Indemnification................................................ 22
(a) Indemnification of the Underwriters and the Trust by
the Contracting Stockholder......................................... 22
(b) Indemnification of the Trust and the Contracting
Stockholder......................................................... 24
(c) Actions against Parties; Notification............................... 24
(d) Settlement without Consent if Failure to Reimburse.................. 25
(e) Conditions of Indemnification by the Contracting
Stockholder......................................................... 25
SECTION 7. Contribution................................................... 25
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery....................................................... 27
SECTION 9. Termination of Agreement....................................... 27
(a) Termination; General................................................ 27
(b) Liabilities......................................................... 27
SECTION 10. Default by One or More Underwriters............................ 27
SECTION 11. Notices........................................................ 27
SECTION 12. Parties........................................................ 28
SECTION 13. GOVERNING LAW AND TIME......................................... 28
SECTION 14. Effect of Headings............................................. 28
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SECTION 15. No Personal Liability of Trustees.............................. 28
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Dollar General STRYPES Trust
(a Delaware business trust)
7,500,000 STRYPES(SM)
Exchangeable for Shares of Common Stock of Dollar General Corporation
PURCHASE AGREEMENT
____________, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇, SACHS & CO.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Dollar General STRYPES Trust (such trust and the trustees thereof acting
in their capacities as such being referred to herein as the "Trust"), a
statutory business trust created under the Business Trust Act (the "Delaware
Act") of the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12
Del. C. (Sections 3801 et seq.)), and the ▇▇▇▇▇▇ Children Trust, a trust made by
▇▇▇ ▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ as Donors under the Indenture of Trust dated January 21, 1980, as amended
(the "Indenture of Trust"), and for which ▇▇▇ ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ act as Co-Trustees (such trust and the co-trustees thereof acting in
their capacities as such being referred to herein as the "Contracting
Stockholder"), confirm their respective agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. (collectively, the "Underwriters", which term shall also
include any underwriter substituted as provided in Section 10 hereof) with
respect to (i) the issue and sale by the Trust and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of the
Trust's STRYPES4M (each, a "STRYPES") set forth in Schedule A hereto, and (ii)
the grant by the Trust to the Underwriters, acting severally and not jointly, of
the option described in Section 2(b) hereof to purchase all or any part of
1,125,000 additional STRYPES to cover over-allotments, if any. The aforesaid
7,500,000 STRYPES (the "Initial Securities") to be
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(SM) Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
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purchased by the Underwriters pursuant to this Agreement and all or any part of
the 1,125,000 STRYPES subject to the option described in Section 2(b) hereof
(the "Option Securities") are hereinafter called, collectively, the
"Securities." The Securities are to be issued pursuant to an Amended and
Restated Trust Agreement, to be dated as of May 1, 1998, among the trustees of
the Trust (the "Trustees") and ML IBK Positions, Inc., as Sponsor (the "Trust
Agreement").
The Trust, Dollar General Corporation, a Kentucky corporation ("Dollar
General"), and the Underwriters are concurrently entering into an agreement,
dated the date hereof (the "Registration Agreement"), relating to the
registration of shares of common stock, par value $.50 per share (the "Dollar
General Common Stock"), of Dollar General deliverable upon exchange of the
STRYPES. The STRYPES will be exchanged for a specified number of shares of
Dollar General Common Stock or, in certain circumstances, cash, or a combination
of cash and Dollar General Common Stock, with an equal value, upon conclusion of
the term of the Trust on ____________, 2001 (the "Exchange Date") or upon
earlier dissolution of the Trust in certain circumstances.
The Trust and the Contracting Stockholder understand that the Underwriters
propose to make a public offering of the Securities as soon as the Underwriters
deem advisable after this Agreement and the Registration Statement been executed
and delivered.
The Trust has filed with the Securities and Exchange Commission (the
"Commission") (i) a notification on Form N-8A (the "Notification") of
registration of the Trust as an investment company; and (ii) a registration
statement on Form N-2 (Nos. 333-50783 and 811-08755) for the registration of the
Securities under the Securities Act of 1933, as amended (the "1933 Act"), and
Pre-Effective Amendments No. 1 and 2 thereto, including a preliminary prospectus
relating to the offering of the Securities. Promptly after execution and
delivery of this Agreement, the Trust will either (i) prepare and file a
prospectus in accordance with the provisions of Rule 430A ("Rule 430A") of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and paragraph (h) of Rule 497 ("Rule 497(h)") of the 1933 Act
Regulations or (ii) if the Trust has elected to rely upon Rule 434 ("Rule 434")
of the 1933 Act Regulations, prepare and file a term sheet (a "Trust Term
Sheet") in accordance with the provisions of Rule 434 and Rule 497(h). The
information included in such prospectus or in such Trust Term Sheet, as the case
may be, that was omitted from such registration statement (as so amended) at the
time it became effective but that is deemed to be part of such registration
statement (as so amended) at the time it became effective (i) pursuant to
paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or (ii)
pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434 Information."
Any prospectus relating to the offering of the Securities used before such
registration statement (as so amended) became effective, and any prospectus
relating to the offering of the Securities that omitted, as applicable, the Rule
430A Information or the Rule 434 Information, that was used after such
effectiveness and prior to the execution and delivery of this Agreement, in each
case excluding any Dollar General preliminary prospectus (as defined below)
attached thereto, is herein called a "Trust preliminary prospectus." Such
registration statement (as so amended), including the exhibits thereto and the
schedules thereto, if any, at the time it became effective and including the
Rule 430A Information and the Rule 434 Information, as applicable, is herein
called the "Trust Registration Statement." Any registration statement filed by
the Trust pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred
to as the
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"Trust Rule 462(b) Registration Statement," and after such filing the term
"Trust Registration Statement" shall include the Trust Rule 462(b) Registration
Statement. The final prospectus relating to the offering of the Securities,
excluding any Dollar General Prospectus (as defined below) attached thereto, in
the form first furnished to the Underwriters for use in connection with the
offering of the Securities is referred to herein as the "Trust Prospectus." If
Rule 434 is relied on, the term "Trust Prospectus" shall refer to the Trust
preliminary prospectus dated May 12, 1998 together with the Trust Term Sheet and
all references in this Agreement to the date of the Trust Prospectus shall mean
the date of the Trust Term Sheet. For purposes of this Agreement, all references
to the Trust Registration Statement, any Trust preliminary prospectus, the Trust
Prospectus or any Trust Term Sheet or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
Dollar General has filed with the Commission a registration statement on
Form S-3 (No. 333-50451), covering the registration under the 1933 Act of the
shares of Dollar General Common Stock deliverable upon exchange of the
Securities, and Pre-Effective Amendments No. 1 and 2 thereto, including the
related preliminary prospectus or prospectuses. Each prospectus relating to the
shares of Dollar General Common Stock deliverable upon exchange of the
Securities used before such registration statement (as so amended) became
effective, in each case excluding any Trust preliminary prospectus attached
thereto, is herein called a "Dollar General preliminary prospectus." Such
registration statement, including the exhibits thereto, the schedules thereto,
if any, and the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, at the time it became effective, is herein
called the "Dollar General Registration Statement." Any registration statement
filed by Dollar General pursuant to Rule 462(b) of the 1933 Act Regulations is
herein referred to as the "Dollar General Rule 462(b) Registration Statement,"
and after such filing the term "Dollar General Registration Statement" shall
include the Dollar General Rule 462(b) Registration Statement. The final
prospectus relating to the shares of Dollar General Common Stock deliverable
upon exchange of the Securities, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, but
excluding any Trust Prospectus attached thereto, in the form first furnished to
the Underwriters for use in connection with the offering of the Securities is
herein called the "Dollar General Prospectus." For purposes of this Agreement,
all references to the Dollar General Registration Statement, any Dollar General
preliminary prospectus, the Dollar General Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to ▇▇▇▇▇.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the Dollar
General Registration Statement, any Dollar General preliminary prospectus or the
Dollar General Prospectus (or other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Dollar General
Registration Statement, any Dollar General preliminary prospectus or the Dollar
General Prospectus, as the case may be, and shall be deemed to exclude all
financial statements and schedules and other information which are included in
any Trust preliminary prospectus or the Trust Prospectus which is attached to
any Dollar General preliminary prospectus or the Dollar General Prospectus; and
all references in this Agreement to amendments or supplements to the
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Dollar General Registration Statement, any Dollar General preliminary prospectus
or the Dollar General Prospectus shall be deemed to mean and include the filing
of any document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated by reference in the Dollar General Registration
Statement, such Dollar General preliminary prospectus or the Dollar General
Prospectus, as the case may be.
Concurrently with the execution and delivery of this Agreement, the Trust,
the Contracting Stockholder and The Bank of New York ("BONY"), as collateral
agent, will enter into a forward purchase contract (the "Forward Purchase
Contract"), pursuant to which the Contracting Stockholder will agree to sell and
the Trust will agree to purchase, on the business day immediately preceding the
Exchange Date, the aggregate number of shares of Dollar General Common Stock
required by the Trust to exchange all of the Securities on the Exchange Date as
described in the Trust Prospectus, subject to the Contracting Stockholder's
right to satisfy its obligation thereunder in whole or in part through cash
payment based upon the value of the shares of Dollar General Common Stock
otherwise deliverable (the "Forward Purchase"). The Contracting Stockholder's
obligation under the Forward Purchase Contract will be secured by a pledge of
collateral pursuant to the terms of a security and pledge agreement (the
"Security and Pledge Agreement") among the Contracting Stockholder, the Trust
and BONY, as collateral agent.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Trust. The Trust represents and
warrants to each Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(i) Compliance with Registration Requirements. Each of the Trust
Registration Statement and any Trust Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending the
effectiveness of the Trust Registration Statement or any Trust Rule 462(b)
Registration Statement pursuant to Section 8(d) of the 1933 Act, or order
pursuant to Section 8(e) of the Investment Company Act of 1940, as amended
(the "1940 Act"), has been issued and no proceedings for either such
purpose have been instituted or are pending or, to the knowledge of the
Trust, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Trust Registration Statement, any Trust
Rule 462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), the Notification, the
Trust Registration Statement, the Trust Rule 462(b) Registration Statement
and any amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1940 Act and the rules and regulations of the
Commission under the 1940 Act (the "1940 Act Regulations"), and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither the Trust Prospectus nor
any
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amendments or supplements thereto, at the time the Trust Prospectus or any
such amendment or supplement was issued and at the Closing Time (and, if
any Option Securities are purchased, at the Date of Delivery), included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Trust will comply with the
requirements of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the Trust
Registration Statement (or any amendments thereto) or the Trust Prospectus
(or any amendments or supplements thereto) made in reliance upon and in
conformity with information furnished to the Trust in writing by the
Underwriters through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Trust
Registration Statement (or any amendments thereto) or Trust Prospectus (or
any amendments or supplements thereto).
Each Trust preliminary prospectus and the prospectus relating to the
offering of the Securities filed as part of the Trust Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 497 under the 1933 Act, complied when so filed in
all material respects with the 1933 Act Regulations and the 1940 Act
Regulations, and, if applicable, each Trust preliminary prospectus and the
Trust Prospectus delivered to the Underwriters for use in connection with
the offering of the Securities was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified certain
financial statements and supporting schedules included in the Trust
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statement. The statement of assets, liabilities and
capital included in the Trust Registration Statement and the Trust
Prospectus, together with the notes thereto, present fairly the financial
position of the Trust at the date indicated; said financial statement has
been prepared in conformity with generally accepted accounting principles.
(iv) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Trust Registration Statement
and the Trust Prospectus, except as otherwise stated therein or
contemplated thereby, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs,
business prospects, management, investment objectives or investment
policies of the Trust, whether or not arising in the ordinary course of
business (a "Material Adverse Effect") and (B) there have been no
transactions entered into by the Trust, other than those in the ordinary
course of business, which are material with respect to the Trust.
(v) Good Standing of the Trust; No Subsidiaries. The Trust has been
duly created and is validly existing as a business trust in good standing
under the Delaware Act with power and authority to own its properties and
to conduct its business as
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described in the Trust Prospectus and to enter into and perform its
obligations under this Agreement, the Trust Agreement and the Forward
Purchase Contract; the Trust is and will, under current law, be classified
for United States federal income tax purposes as a grantor trust and not
as an association taxable as a corporation; and the Trust has no
subsidiaries.
(vi) Registration Under the 1940 Act. The Trust is registered with
the Commission as a non-diversified, closed-end management investment
company under the 1940 Act. No order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or, to the
knowledge of the Trust, threatened by the Commission. No person is serving
or acting as an officer or trustee of the Trust, except in accordance with
the provisions of the 1940 Act.
(vii) Outstanding STRYPES. All of the outstanding STRYPES have been
duly and validly authorized and issued and are fully paid and
non-assessable undivided beneficial interests in the assets of the Trust;
and the form of certificate used to evidence the STRYPES is in due and
proper form and complies with all provisions of applicable law.
(viii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Trust. The performance of this
Agreement and the consummation of the transactions contemplated in this
Agreement and the Trust Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Trust with its obligations under this
Agreement have been duly authorized by the Trust.
(ix) Authorization and Description of the Securities. The Securities
have been duly authorized by the Trust for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered by
the Trust pursuant to this Agreement against payment of the purchase price
therefor as provided herein, will be validly issued and fully paid and
non-assessable undivided beneficial interests in the assets of the Trust;
the STRYPES conform to all statements relating thereto contained in the
Trust Prospectus and such description conforms to the rights set forth in
the instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Trust.
(x) Authorization of Fundamental Agreements. Each of the Forward
Purchase Contract, the Security and Pledge Agreement, the Administration
Agreement, to be dated ___________, 1998, between the Trust and BONY (the
"Administration Agreement"), the Custodian Agreement, dated ____________,
1998, between the Trust and BONY (the "Custodian Agreement"), the Paying
Agent Agreement, to be dated ____________, 1998, between the Trust and
BONY (the "Paying Agent Agreement") and the Fund Indemnity Agreement, to
be dated ____________, 1998, among the Trust, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
and the Contracting Stockholder (the "Fund Indemnity Agreement") (the
Forward Purchase Contract, the Security and Pledge Agreement, the
Administration Agreement,
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the Custodian Agreement, the Paying Agent Agreement and the Fund Indemnity
Agreement are collectively referred to herein as the "Fundamental
Agreements"), has been duly authorized by the Trust and, at the Closing
Time, will have been duly executed and delivered by the Trust and
(assuming the due authorization, execution and delivery by the other
parties thereto) will constitute a valid and binding agreement of the
Trust, enforceable against the Trust in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xi) Compliance with Acts. The Trust Agreement and the Fundamental
Agreements comply with all applicable provisions of the 1933 Act and the
1940 Act, and all approvals of such documents required under the 1940 Act
by the holders of the STRYPES and the Trustees have been obtained and are
in full force and effect.
(xii) Description of Trust Agreement and Fundamental Agreements. The
Trust Agreement and the Fundamental Agreements will conform in all
material respects to the respective statements relating thereto contained
in the Trust Prospectus and, to the extent forms thereof were filed as
exhibits to the Trust Registration Statement, will be in substantially the
respective forms so filed.
(xiii) Absence of Defaults and Conflicts. The execution, delivery
and performance by the Trust of this Agreement and each Fundamental
Agreement and the consummation of the transactions contemplated herein,
therein and in the Trust Registration Statement (including the issuance
and sale of the Securities and the delivery of shares of Dollar General
Common Stock pursuant thereto, the consummation of the Forward Purchase
and the use of the proceeds from the sale of the Securities as described
in the Trust Prospectus under the caption "Use of Proceeds") and
compliance by the Trust with its obligations hereunder, under the
Securities and under each Fundamental Agreement do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Trust pursuant
to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Trust
is a party or by which it may be bound, or to which any of the property or
assets of the Trust is subject (collectively, "Agreements and
Instruments") (except for such conflicts, breaches, defaults or Repayment
Events or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the Trust Agreement or the trust certificate of the
Trust filed with the State of Delaware on April 15, 1998 or any applicable
law, statute, rule or regulation of any government or government
instrumentality having jurisdiction over the Trust or any of its assets,
properties or operations (other than any state securities or "blue sky"
law, statute, rule or regulation, as to which no representation or
warranty is made), or any applicable judgment, order, writ
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or decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Trust or any of its assets or
properties (except for such violations of any law, statute, rule,
regulation, judgment, order, writ or decree that would not result in a
Material Adverse Effect). As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness of the Trust (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Trust.
(xiv) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending with respect to which the
Trust has received service of process, or, to the knowledge of the Trust,
threatened, against or affecting the Trust, which is required to be
disclosed in the Trust Registration Statement or the Trust Prospectus
(other than as disclosed therein), or which might, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect,
or which might, individually or in the aggregate, reasonably be expected
to materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
Fundamental Agreements (including the issuance and sale of the Securities
and the delivery of shares of Dollar General Common Stock pursuant thereto
and the consummation of the Forward Purchase) or the performance by the
Trust of its obligations hereunder or thereunder; the aggregate of all
pending legal or governmental proceedings (with respect to which the Trust
has received service of process) to which the Trust is a party or of which
any of its property or assets is the subject which are not described in
the Trust Registration Statement or the Trust Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xv) No Investment Restrictions, etc. There are no material
restrictions, limitations or regulations with respect to the ability of
the Trust to invest its assets as described in the Trust Prospectus, other
than as described therein.
(xvi) Exhibits. There are no contracts or documents which are of a
character required to be described in the Trust Registration Statement or
the Trust Prospectus or to be filed as exhibits thereto which have not
been so described or filed as required.
(xvii) Absence of Further Requirements. No declaration or filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the Trust to own and use its assets and to
conduct its business in the manner described in the Trust Prospectus or
for the performance by the Trust of its obligations under this Agreement,
the Trust Agreement or any Fundamental Agreement or the consummation by
the Trust of the transactions contemplated herein or therein (including
the issuance and sale of the Securities and the delivery of shares of
Dollar General Common Stock pursuant thereto and the consummation of the
Forward Purchase), except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
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(xviii) Title to Property. The Trust has good title to all
properties owned by it, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances
of any kind except such as (A) are described in the Trust Prospectus or
(B) do not, singly or in the aggregate, materially affect the value of
such property and do not interfere with the use made and proposed to be
made of such property by the Trust.
(b) Representations and Warranties by the Contracting Stockholder. The
Contracting Stockholder represents and warrants to each of the Underwriters and
the Trust as of the date hereof, as of the Closing Time referred to in Section
2(c) hereof, and as of each Date of Delivery (if any) referred to in Section
2(b) hereof, and agrees with each of the Underwriters and the Trust, as follows:
(i) Authority. The Contracting Shareholder has the full right, power
and authority to enter into and perform its obligations under this
Agreement, the Fund Expense Agreement to be dated __________, 1998 among
the Contracting Stockholder, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc. and BONY (the "Fund
Expense Agreement"), the Fund Indemnity Agreement, the Forward Purchase
Contract and the Security and Pledge Agreement, to pledge and assign the
shares of Series A Convertible Junior Preferred Stock of Dollar General
(the "Series A Preferred Stock") to be pledged and assigned by the
Contracting Shareholder pursuant to the Security and Pledge Agreement, and
to sell, transfer and deliver the shares of Dollar General Common Stock to
be sold by the Contracting Shareholder pursuant to the Forward Purchase
Contract.
(ii) Delivery of Dollar General Common Stock. ▇▇▇ ▇▇▇▇▇▇, ▇▇. and
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Co-Trustees of the Contracting Stockholder, are
the sole registered owners of the shares of Series A Preferred Stock to be
delivered, pledged and assigned by the Contracting Stockholder pursuant to
the Security and Pledge Agreement; and the Contracting Stockholder has,
and at the Closing Time (and, if any Option Securities are purchased, at
the Date of Delivery) will have, all rights, title and interest in and to
the shares of Series A Preferred Stock to be pledged and assigned by it
pursuant to the Security and Pledge Agreement, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity,
other than those created pursuant to the Security and Pledge Agreement. If
the Contracting Stockholder delivers to the Trust shares of Dollar General
Common Stock pursuant to the Forward Purchase Contract, upon delivery by
the Contracting Stockholder to the Trust of the shares of Dollar General
Common Stock to be sold by the Contracting Stockholder pursuant to the
Forward Purchase Contract (whether such delivery is made on the business
day immediately preceding the Exchange Date, upon any acceleration of the
Contracting Stockholder's obligation under the Forward Purchase Contract
or otherwise), assuming the Trust purchased for value and without notice
of any adverse claim, the Trust will have acquired all rights, title and
interest in and to such shares of Dollar General Common Stock, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity. The sale, transfer and delivery of shares of Dollar General
Common Stock by the Contracting Stockholder to the Trust as contemplated
by the Forward Purchase Contract is not, and at the time of delivery of
such shares will not be, subject to any right of first refusal or similar
rights of
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any person pursuant to any contract or instrument to which the Contracting
Stockholder is a party or by which the Contracting Stockholder is bound
(other than rights which have been waived or satisfied).
(iii) Execution and Delivery of Agreement. This Agreement has been
duly executed and delivered by the Contracting Stockholder. The execution
and delivery of this Agreement and the sale and delivery of the Dollar
General Common Stock to be sold by the Contracting Stockholder and the
consummation by the Contracting Stockholder of the transactions
contemplated herein and in the Trust Registration Statement and compliance
by the Contracting Stockholder with its obligations hereunder do not and
will not, whether with or without the giving of notice or passage of time
or both, result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Series A Preferred Stock or the Dollar General Common
Stock to be sold by the Contracting Stockholder, nor will such action
result in any violation of the provisions of the Indenture of Trust or, to
the best of the Contracting Stockholder's knowledge, any applicable
treaty, law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Contracting Stockholder or any of its
properties.
(iv) Execution and Delivery of the Fund Expense Agreement, the Fund
Indemnity Agreement, the Forward Purchase Contract and the Security and
Pledge Agreement. At the Closing Time, each of the Fund Expense Agreement,
the Fund Indemnity Agreement, the Forward Purchase Contract and the
Security and Pledge Agreement will have been duly executed and delivered
by the Contracting Stockholder and (assuming the due authorization,
execution and delivery by the other parties thereto) will constitute a
valid and binding agreement of the Contracting Stockholder, enforceable
against the Contracting Stockholder in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(v) Absence of Defaults and Conflicts. The execution, delivery and
performance by the Contracting Stockholder of this Agreement, the Fund
Expense Agreement, the Fund Indemnity Agreement, the Forward Purchase
Contract and the Security and Pledge Agreement and the consummation by the
Contracting Stockholder of the transactions contemplated herein and
therein and compliance by the Contracting Stockholder with its obligations
hereunder and thereunder do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Contracting Stockholder Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Contracting
Stockholder pursuant to, any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or any other agreement or instrument
to which the Contracting Stockholder is a party or by which the
Contracting Stockholder may be bound, or to which any of the property or
assets of the Contracting
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Stockholder is subject (except for such conflicts, breaches, defaults or
Contracting Stockholder Repayment Events or liens, charges or encumbrances
that would not, singly or in the aggregate, materially and adversely
affect the ability of the Contracting Stockholder to perform its
obligations under this Agreement, the Fund Expense Agreement, the Fund
Indemnity Agreement, the Forward Purchase Contract or the Security and
Pledge Agreement), nor will such action result in any violation of any
applicable law, statute, rule or regulation of any government or
government instrumentality having jurisdiction over the Contracting
Stockholder or any of its assets or properties (other than any state
securities or "blue sky" law, statute, rule or regulation, as to which no
representation and warranty is made), or any applicable judgment, order,
writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Contracting Stockholder
or any of its assets or properties (except in all cases for such
violations that would not, singly or in the aggregate, materially and
adversely affect the ability of the Contracting Stockholder to perform its
obligations under this Agreement, the Fund Expense Agreement, the Fund
Indemnity Agreement, the Forward Purchase Contract or the Security and
Pledge Agreement). As used herein, a "Contracting Stockholder Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Contracting
Stockholder.
(vi) Absence of Further Requirements. To the best of the Contracting
Stockholder's knowledge, no declaration or filing with, or authorization,
approval, consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency is necessary or required
for the execution, delivery or performance by the Contracting Stockholder
of this Agreement, the Fund Expense Agreement, the Fund Indemnity
Agreement, the Forward Purchase Contract or the Security and Pledge
Agreement or the consummation by the Contracting Stockholder of the
transactions contemplated herein or therein, except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws.
(vii) Trust Registration Statement and Prospectus. At the respective
times the Trust Registration Statement, any Trust Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective and
at the Closing Time (and, if any Option Securities are purchased, at the
Date of Delivery), the Notification, the Trust Registration Statement, the
Trust Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the 1940
Act and the 1940 Act Regulations, and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. Neither the Trust Prospectus nor any amendments or
supplements thereto, at the time the Trust Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery), included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in
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order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Trust Registration Statement (or any amendments
thereto) or the Trust Prospectus (or any amendments or supplements
thereto) made in reliance upon and in conformity with information
furnished to the Trust in writing by the Underwriters through ▇▇▇▇▇▇▇
▇▇▇▇▇ expressly for use in the Trust Registration Statement (or any
amendments thereto) or Trust Prospectus (or any amendments or supplements
thereto).
Each Trust preliminary prospectus and the prospectus relating to the
offering of the Securities filed as part of the Trust Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 497 under the 1933 Act, complied when so filed in
all material respects with the 1933 Act Regulations and the 1940 Act
Regulations.
(viii) Dollar General Registration Statement and Prospectus. The
Dollar General Registration Statement, any Dollar General Rule 462(b)
Registration Statement or any post-effective amendments thereto, at the
respective times the Dollar General Registration Statement, any Dollar
General Rule 462(b) Registration Statement or any post-effective
amendments thereto became effective, did not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Dollar General Prospectus or any amendment or supplement thereto, at the
time the Dollar General Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time (and,
if any Option Securities are purchased, at the Date of Delivery), did not
and will not include an untrue statement of a material fact and did not
and will not omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The representations and warranties in this
subsection shall apply only to statements in or omissions from the Dollar
General Registration Statement (or any amendment thereto) or the Dollar
General Prospectus (or any amendment or supplement thereto) made in
reliance upon and in conformity with information furnished to Dollar
General in writing by the Contracting Stockholder expressly for use in the
Dollar General Registration Statement (or any amendment thereto) or the
Dollar General Prospectus (or any amendment or supplement thereto).
(ix) Security and Pledge Agreement. The representations and
warranties of the Contracting Stockholder set forth in Section 8(a) of the
Security and Pledge Agreement are true and correct on and as of the date
hereof with the same effect as though such representations and warranties
had been set forth in full in this Agreement.
(c) Officer's Certificates. Any certificate signed by any Trustee of the
Trust delivered to the Underwriters or counsel for the Underwriters shall be
deemed a representation and warranty by the Trust to the Underwriters as to the
matters covered thereby. Any certificate signed by the Contracting Stockholder
delivered to the Underwriters or counsel to the Underwriters or to the Trust or
counsel to the Trust shall be deemed a representation and warranty by the
Contracting
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Stockholder to the Underwriters or the Trust, as the case may be, as to the
matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Trust agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price per STRYPES set forth in Schedule B, the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter, plus any
additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Trust hereby grants an option to the Underwriters, severally and
not jointly, to purchase up to an additional 1,125,000 STRYPES at the price per
STRYPES set forth in Schedule B. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial Securities upon notice by the
Underwriters to the Trust setting forth the number of Option Securities as to
which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Securities. Any such time and date
of delivery (a "Date of Delivery") shall be determined by the Underwriters, but
shall not be later than seven full business days (or, in the case of any
exercise of said option by notice given after the Closing Time (as hereinafter
defined), earlier than two full business days) after the exercise of said
option, nor in any event prior to the Closing Time. If the option is exercised
as to all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase that proportion of the total
number of Option Securities then being purchased which the number of Initial
Securities set forth in Schedule A opposite the name of such Underwriter bears
to the total number of Initial Securities, subject in each case to such
adjustments as the Underwriters in their discretion shall make to eliminate any
sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of ▇▇▇▇▇ &
Wood LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at such other
place as shall be agreed upon by the Underwriters and the Trust, at 9:00 A.M.
(Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof, or such
other time not later than ten business days after such date as shall be agreed
upon by the Underwriters and the Trust (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event that any
or all of the Option Securities are purchased by the Underwriters, payment of
the purchase price for, and delivery of certificates for, such Option Securities
shall be made at the above-mentioned offices, or at such other place as shall be
agreed upon by the Underwriters and the Trust, on each Date of Delivery as
specified in the notice from the Underwriters to the Trust.
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Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust, against delivery to
the Underwriters of certificates for the Securities to be purchased by them. It
is understood that each Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Securities which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Initial Securities
or the Option Securities, if any, to be purchased by any Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Underwriters may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Underwriters in The City of New York not later than 10:00 A.M. (Eastern time) on
the business day prior to the Closing Time or the relevant Date of Delivery, as
the case may be.
SECTION 3. Covenants.
(a) Covenants of the Trust. The Trust covenants with each Underwriter as
follows:
(i) Compliance with Securities Regulations and Commission Requests.
The Trust, subject to Section 3(a)(ii), will comply with the requirements
of Rule 430A or Rule 434, as applicable, and will notify the Underwriters
immediately, and confirm the notice in writing, (A) when any
post-effective amendment to the Trust Registration Statement shall become
effective, or any supplement to the Trust Prospectus or any amended Trust
Prospectus shall have been filed, (B) of the receipt of any comments from
the Commission, (C) of any request by the Commission for any amendment to
the Trust Registration Statement or any amendment or supplement to the
Trust Prospectus or for additional information, and (D) of the issuance by
the Commission of any stop order suspending the effectiveness of the Trust
Registration Statement or of any order preventing or suspending the use of
any Trust preliminary prospectus or any order pursuant to Section 8(e) of
the 1940 Act, or of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Trust will
promptly effect the filings necessary pursuant to Rule 497(h) and will
take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 497(h) was received
for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Trust will make every reasonable effort
to prevent the issuance of any stop order pursuant to Section 8(d) of the
1933 Act or any order pursuant to Section 8(e) of the 1940 Act and, if any
such order is issued, to obtain the lifting thereof at the earliest
possible moment.
(ii) Filing of Amendments. The Trust will give the Underwriters
notice of its intention to file or prepare any amendment to the Trust
Registration Statement (including
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any filing under Rule 462(b)), any Trust Term Sheet or any amendment,
supplement or revision to either the prospectus relating to the offering
of the Securities included in the Trust Registration Statement at the time
it became effective or to the Trust Prospectus, whether pursuant to the
1933 Act, the 1940 Act or otherwise, will furnish the Underwriters with
copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any
such document to which the Underwriters or counsel for the Underwriters
shall reasonably object.
(iii) Delivery of Trust Registration Statements. The Trust has
furnished or will deliver to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Trust Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein) and signed
copies of all consents and certificates of experts. If applicable, the
copies of the Trust Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(iv) Delivery of Trust Prospectuses. The Trust has delivered to each
Underwriter, without charge, as many copies of each Trust preliminary
prospectus as such Underwriter reasonably requested, and the Trust hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
The Trust will furnish to each Underwriter, without charge, during the
period when the Trust Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Trust Prospectus
(as amended or supplemented) as such Underwriter may reasonably request.
If applicable, the Trust Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(v) Continued Compliance with Securities Laws. The Trust will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations, and the 1940 Act and the 1940 Act Regulations so as to
permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Trust Prospectus. If at any time
when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion
of counsel for the Underwriters or for the Trust, to amend the Trust
Registration Statement or amend or supplement the Trust Prospectus in
order that the Trust Prospectus will not include any untrue statements of
a material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if
it shall be necessary, in the opinion of either such counsel, at any such
time to amend the Trust Registration Statement or amend or supplement the
Trust Prospectus in order to comply with the requirements of the 1933 Act
or the 1933 Act Regulations or the 1940 Act or the 1940 Act Regulations,
the Trust will promptly prepare and file with the Commission, subject to
Section 3(a)(ii), such amendment or supplement
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as may be necessary to correct such statement or omission or to make the
Trust Registration Statement or the Trust Prospectus comply with such
requirements, and the Trust will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
(vi) Blue Sky Qualifications. The Trust will use its best efforts,
in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Underwriters may designate
and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Trust
Registration Statement and any Trust Rule 462(b) Registration Statement;
provided, however, that the Trust shall not be obligated to file any
general consent to service of process or to qualify as a foreign trust or
association or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the
Trust will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period
of not less than one year from the effective date of the Trust
Registration Statement and any Trust Rule 462(b) Registration Statement.
(vii) Rule 158. The Trust will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(viii) Use of Proceeds. The Trust will use the net proceeds received
by it from the sale of the Securities in the manner specified in the Trust
Prospectus under "Use of Proceeds."
(ix) Listing. The Trust will use its best efforts to effect and
maintain the listing of the Securities on the New York Stock Exchange.
(x) Reporting Requirements. The Trust, during the period when the
Trust Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations and all documents required to be filed with
the Commission pursuant to the 1940 Act within the time periods required
by the 1940 Act and the 1940 Act Regulations.
(b) Covenant of the Contracting Stockholder. The Contracting Stockholder
covenants with each Underwriter and the Trust that, during a period of 90 days
from the date of the Trust Prospectus, the Contracting Stockholder will not,
without the prior written consent of the ▇▇▇▇▇▇▇ ▇▇▇▇▇, offer, sell, contract to
sell or otherwise dispose of, directly or indirectly, any shares of Dollar
General Common Stock or any securities directly or indirectly convertible into
or exercisable or exchangeable for shares of Dollar General Common Stock. The
foregoing sentence shall not apply to the execution and delivery by the
Contracting Stockholder of the
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Forward Purchase Contract or the consummation by the Contracting Stockholder of
the transactions contemplated therein.
SECTION 4. Payment of Expenses.
(a) Expenses Payable by the Contracting Stockholder. The Contracting
Stockholder will pay all expenses incident to the performance by the Trust and
the Contracting Stockholder of their respective obligations under this Agreement
and the Registration Agreement, including (i) the preparation, printing and
filing of the Notification and the Trust Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, the Forward Purchase Contract and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, (iv) the fees and
disbursements of the Trust's counsel, accountants and other advisors, (v) the
fees and disbursements of the Contracting Stockholder's counsel and other
advisors, (vi) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(a)(vi) hereof, including filing fees
and the reasonable fees and disbursements of the counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vii) the printing and delivery to the
Underwriters of copies of each Trust preliminary prospectus, any Trust Term
Sheets and of the Trust Prospectus and any amendments or supplements thereto,
(viii) the preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (ix) the fees and expenses of
any transfer agent or registrar for Securities, (x) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, securing any required review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the Securities
and (xi) the fees and expenses incurred in connection with the listing of the
Securities on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Contracting Stockholder shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
(c) Allocation of Expenses. The provisions of this Section 4 shall not
affect any agreement that the Contracting Stockholder may make for the sharing
of the costs and expenses to be borne by it pursuant to this Section 4.
SECTION 5. Conditions.
(a) Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Trust and the Contracting Stockholder
contained in Sections 1(a) and 1(b) hereof, respectively, to the accuracy of the
representations and warranties of Dollar General contained in the Registration
Agreement, to the accuracy of the statements in certificates of any Trustee of
the Trust, any officer of Dollar General or by the Contracting Stockholder
delivered pursuant to the provisions hereof, to the performance by the Trust and
the Contracting Stockholder of their
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respective covenants and other obligations hereunder, to the performance by
Dollar General of its covenants and other obligations under the Registration
Agreement, and to the following further conditions:
(i) Effectiveness of Trust Registration Statement. The Trust
Registration Statement, including any Trust Rule 462(b) Registration
Statement, has become effective and at Closing Time no stop order
suspending the effectiveness of the Trust Registration Statement pursuant
to Section 8(d) of the 1933 Act, or order pursuant to Section 8(e) of the
1940 Act, shall have been issued and no proceedings therefor shall have
been initiated or threatened by the Commission, and any request on the
part of the Commission for additional information shall have been complied
with to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing the Rule 430A Information shall have been filed with
the Commission in accordance with Rule 497(h) (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A) or, if the
Trust has elected to rely upon Rule 434, a Trust Term Sheet shall have
been filed with the Commission in accordance with Rule 497(h).
(ii) Effectiveness of Dollar General Registration Statement. The
Dollar General Registration Statement, including any Dollar General Rule
462(b) Registration Statement, has become effective and at Closing Time no
stop order suspending the effectiveness of the Dollar General Registration
Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the
part of the Commission for additional information shall have been complied
with to the reasonable satisfaction of counsel to the Underwriters.
(iii) Opinion of Counsel for the Trust. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of
Closing Time, of ▇▇▇▇▇ & ▇▇▇▇ llp, counsel for the Trust, in form and
substance reasonably satisfactory to the Underwriters, to the effect set
forth in Exhibit A hereto. In giving such opinion such counsel may rely,
as to all matters governed by the laws of jurisdictions other than the law
of the State of New York and the federal law of the United States, upon
the opinions of counsel satisfactory to the Underwriters. Such counsel may
also state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of the
Trustees and certificates of public officials.
(iv) Opinion of Special Delaware Counsel for the Trust. At Closing
Time, the Underwriters shall have received the favorable opinion, dated as
of Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware
counsel for the Trust, in form and substance reasonably satisfactory to
counsel for the Underwriters, to the effect set forth in Exhibit B hereto.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon
certificates of the Trustees and certificates of public officials.
(v) Opinion of Counsel for Dollar General. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of
Closing Time, of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Dollar General, in
form and substance reasonably
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satisfactory to counsel for the Underwriters, to the effect set forth in
Exhibit C hereto. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the
State of Tennessee, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Underwriters. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of Dollar General
and its subsidiaries and certificates of public officials.
(vi) Opinion of Counsel for the Contracting Stockholder. At Closing
Time, the Underwriters shall have received the favorable opinion, dated as
of Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, A Professional Limited
Liability Company, counsel for the Contracting Stockholder, in form and
substance reasonable satisfactory to counsel for the Underwriters, to the
effect set forth in Exhibit D hereto. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of Tennessee, the federal law of the United
States and the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to the Underwriters. Such counsel may
also state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of the
Contracting Stockholder or officers of Dollar General and its subsidiaries
and certificates of public officials.
(vii) Managing Trustee's Certificate. At Closing Time, there shall
not have been, since the date hereof or since the respective dates as of
which information is given in the Trust Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs, business prospects, management, investment objectives or
investment policies of the Trust, whether or not arising in the ordinary
course of business, and the Underwriters shall have received a certificate
of the Managing Trustee of the Trust, dated as of Closing Time, to the
effect that (1) there has been no such material adverse change, (2) the
representations and warranties in Section 1(a) hereof are true and correct
with the same force and effect as though expressly made at and as of
Closing Time, (3) the Trust has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (4) no stop order suspending the effectiveness of the
Trust Registration Statement pursuant to Section 8(d) of the 1933 Act, or
order pursuant to Section 8(e) of the 1940 Act, has been issued and no
proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(viii) Dollar General Officers' Certificate. At Closing Time, there
shall not have been, since the date hereof or since the respective dates
as of which information is given in the Dollar General Prospectus, any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of Dollar General and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Underwriters shall have received
a certificate of each of the Chairman of the Board, the President or a
Vice President of Dollar General and of the chief financial or chief
accounting officer of Dollar General, in each case dated as of
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Closing Time, to the effect that (1) there has been no such material
adverse change, (2) the representations and warranties of Dollar General
contained in Section 1(a) of the Registration Agreement are true and
correct with the same force and effect as though expressly made at and as
of Closing Time, (3) Dollar General has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to Closing Time pursuant to the Registration Agreement, and (4) no
stop order suspending the effectiveness of the Dollar General Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the best of their knowledge, are pending or are
contemplated by the Commission.
(ix) Certificate of the Contracting Stockholder. At Closing Time,
the Underwriters shall have received a certificate by the Contracting
Stockholder, dated as of Closing Time, to the effect that (1) the
representations and warranties of the Contracting Stockholder contained in
Section 1(b) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time and (2) the Contracting
Stockholder has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time.
(x) Dollar General Accountants' Comfort Letters. At the time of the
execution of this Agreement, the Underwriters shall have received from
each of Deloitte & Touche LLP and Coopers & ▇▇▇▇▇▇▇ L.L.P. a letter dated
such date, in form and substance satisfactory to counsel for the
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in
the Dollar General Registration Statement and the Dollar General
Prospectus.
(xi) Dollar General Bring-down Comfort Letters. At Closing Time, the
Underwriters shall have received from each of Deloitte & Touche LLP and
Coopers & ▇▇▇▇▇▇▇ L.L.P. a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished by them
pursuant to Section 5(a)(x) hereof, except that the "specified date"
referred to shall be a date not more than three business days prior to
Closing Time.
(xii) Approval of Listing. At Closing Time, the Securities shall
have been approved for listing on the New York Stock Exchange, subject
only to official notice of issuance.
(xiii) No Objection. At or prior to Closing Time, the NASD shall
have confirmed that it will not raise any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(xiv) Fundamental Agreements. Each Fundamental Agreement shall have
been executed and delivered by all parties thereto, and the Contracting
Stockholder shall have delivered to the Collateral Agent the number of
shares of Series A Preferred Stock required by the Security and Pledge
Agreement to be initially pledged and assigned by
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the Contracting Stockholder thereunder in accordance with the requirements
of the Security and Pledge Agreement.
(xv) Conditions to Purchase of Option Securities. In the event that
the Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations
and warranties of the Trust and the Contracting Stockholder contained
herein, the representations and warranties of Dollar General contained in
the Registration Agreement and the statements in any certificates
furnished by the Trust, Dollar General or the Contracting Stockholder
hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the Underwriters shall have received:
(A) Managing Trustee's Certificate. A certificate, dated such
Date of Delivery, of the Managing Trustee of the Trust confirming
that the certificate delivered at Closing Time pursuant to Section
5(a)(vii) hereof is true and correct as of such Date of Delivery.
(B) Officers' Certificate. A certificate, dated such Date of
Delivery, of the Chairman of the Board, the President or a Vice
President of Dollar General and of the chief financial or chief
accounting officer of Dollar General confirming that the certificate
delivered at Closing Time pursuant to Section 5(a)(viii) hereof is
true and correct as of such Date of Delivery.
(C) Certificate of the Contracting Stockholder. A certificate,
dated such Date of Delivery, by the Contracting Stockholder
confirming that the certificate delivered by it at Closing Time
pursuant to Section 5(a)(ix) hereof is true and correct as of such
Date of Delivery.
(D) Opinion of Counsel for the Trust. The favorable opinion of
▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Trust, in form and substance
satisfactory to the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion delivered
pursuant to Section 5(a)(iii) hereof.
(E) Opinion of Special Delaware Counsel for the Trust. The
favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special
Delaware counsel for the Trust, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion delivered
pursuant to Section 5(a)(iv) hereof.
(F) Opinion of Counsel for Dollar General. The favorable
opinion of ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for Dollar General, in
form and substance satisfactory to counsel for the Underwriters,
dated such
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Date of Delivery, to the same effect as the opinion delivered
pursuant to Section 5(a)(v) hereof.
(G) Opinion of Counsel for the Contracting Stockholder. The
favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, A Professional
Limited Liability Company, counsel for the Contracting Stockholder,
in form and substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, to the same effect as the opinion
delivered pursuant to Section 5(a)(vi) hereof.
(H) Dollar General Bring-down Comfort Letters. A letter from
each of Deloitte & Touche LLP and Coopers & ▇▇▇▇▇▇▇ L.L.P., in form
and substance satisfactory to counsel for the Underwriters and dated
such Date of Delivery, substantially the same in form and substance
as the letter furnished to the Underwriters pursuant to Section
5(a)(xi) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.
(xvi) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, contained herein or in the Registration Agreement; and all
proceedings taken by the Trust in connection with the issuance and sale of
the Securities as herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
(b) Termination of Agreement. If any condition specified in subsection (a)
of this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the purchase of
Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the Underwriters to purchase the relevant Option Securities, may
be terminated by the Underwriters by notice to the Trust and the Contracting
Stockholder at any time at or prior to Closing Time or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 6, 7
and 8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of the Underwriters and the Trust by the Contracting
Stockholder. Subject to Section 6(e) below, the Contracting Stockholder agrees
to indemnify and hold harmless each Underwriter, the Trust and each person, if
any, who controls any Underwriter or the Trust within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact
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contained in the Trust Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Trust preliminary
prospectus or the Trust Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Dollar General
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Dollar General preliminary prospectus or
the Dollar General Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, referred to under (i) or (ii) above;
provided that (subject to Section 6(d) below) any such settlement is
effected with the written consent of the Contracting Stockholder; and
(iv) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriters),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, referred to under (i) or (ii) above, to the extent that any such
expense is not paid under (i), (ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with (A) written information furnished to the Trust by
the Underwriters through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Trust
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any Trust
preliminary prospectus or the Trust Prospectus (or any amendment or supplement
thereto) or (B) written information furnished to Dollar General by the
Underwriters through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Dollar General
Registration Statement (or any amendment thereto) or any Dollar General
preliminary prospectus or the Dollar General Prospectus (or any amendment or
supplement thereto); provided, further, that this indemnity agreement shall not
apply to any loss, liability, claim,
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damage or expense of any Underwriter or person, if any, who controls such
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act with respect to any Dollar General preliminary prospectus to the
extent that any such loss, liability, claim, damage or expense of any
Underwriter results solely from the fact that such Underwriter sold Securities
to a person as to whom the Contracting Stockholder shall establish that there
was not sent by commercially reasonable means, at or prior to the written
confirmation of such sale, a copy of the Dollar General Prospectus in any case
where such delivery is required by the 1933 Act, if Dollar General has
previously furnished copies thereof in sufficient quantity to such Underwriter
and the loss, claim, damage or liability of such Underwriter results from an
untrue statement or omission of a material fact contained in the Dollar General
preliminary prospectus that was corrected in the Dollar General Prospectus.
(b) Indemnification of the Trust and the Contracting Stockholder. Each
Underwriter severally agrees to indemnify and hold harmless the Trust, the
Contracting Stockholder and each person, if any, who controls the Trust or the
Contracting Stockholder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a)(i) or (a)(ii)
of this Section, as incurred, but only with respect to (A) untrue statements or
omissions, or alleged untrue statements or omissions, made in the Trust
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any Trust
preliminary prospectus or the Trust Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Trust by the Underwriters through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Trust Registration Statement (or any amendment thereto) or such Trust
preliminary prospectus or the Trust Prospectus (or any amendment or supplement
thereto) or (B) untrue statements or omissions, or alleged untrue statements or
omissions, made in the Dollar General Registration Statement (or any amendment
thereto) or any Dollar General preliminary prospectus or the Dollar General
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to Dollar General by the
Underwriters through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Dollar General
Registration Statement (or any amendment thereto) or any Dollar General
preliminary prospectus or the Dollar General Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder which it may have otherwise than
on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by the
Contracting Stockholder. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate
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but similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(iii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Conditions of Indemnification by the Contracting Stockholder. The
obligations and liabilities of the Contracting Stockholder under Section 6(a)
hereof with respect to untrue statements or omissions or alleged untrue
statements or omissions made in the Dollar General Registration Statement (or
any amendment thereto), or any Dollar General preliminary prospectus or the
Dollar General Prospectus (or any amendment or supplement thereto), other than
in reliance upon and in conformity with written information furnished to Dollar
General by the Contracting Stockholder expressly for use in the Dollar General
Registration Statement (or any amendment thereto) or such Dollar General
preliminary prospectus or the Dollar General Prospectus (or any amendment or
supplement thereto), shall be subject to the following terms and conditions:
(i) the indemnified party shall have previously requested
indemnification for the loss, liability, claim, damage or expense arising
out of such untrue statements or omissions or alleged untrue statements or
omissions from Dollar General under Section 4(a) of the Registration
Agreement;
(ii) the Contracting Stockholder shall have received notice of the
indemnified party's request for indemnification from Dollar General; and
(iii) Dollar General shall have failed to pay or reimburse such
indemnified party, within 60 days from the date such request was made, in
accordance with such request.
SECTION 7. Contribution. If the indemnification provided for in Section 6
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party
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shall contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Trust and the Contracting Stockholder on the one hand and the Underwriters
on the other hand from the offering of the Securities pursuant to this Agreement
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Trust and the Contracting Stockholder on the one hand and of the Underwriters on
the other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Trust and the Contracting
Stockholder on the one hand and the Underwriters on the other hand in connection
with the offering of the Securities pursuant to this Agreement shall be deemed
to be such that the Underwriters shall be responsible for that portion of the
aggregate amount of such losses, liabilities, claims, damages and expenses
represented by the percentage that the total underwriting discount received by
the Underwriters as set forth on the cover of the Trust Prospectus, or, if Rule
434 is used, the corresponding location on the Trust Term Sheet, bears to the
aggregate initial public offering price of the Securities as set forth on such
cover and the Contracting Stockholder shall be responsible for the balance. The
relative fault of the Trust and the Contracting Stockholder on the one hand and
the Underwriters on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Trust or the Contracting Stockholder on the one hand
or by the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
The Trust, the Contracting Stockholder and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
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For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each person, if any, who controls the Trust or the Contracting Stockholder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Trust. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of the Trust, Dollar General or the Contracting Stockholder
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or
controlling persons, or by or on behalf of the Trust or the Contracting
Stockholder, and shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement,
by notice to the Trust and the Contracting Stockholder, at any time at or prior
to Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Trust Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs, business prospects, management,
investment objectives or investment policies of the Trust, whether or not
arising in the ordinary course of business, or (ii) if there has been, since the
time of execution of this Agreement, or since the respective dates as of which
information is given in the Dollar General Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of Dollar General and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, or
(iii) if there has occurred any material adverse change in the financial markets
in the United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Underwriters, impracticable to market the Securities or to enforce contracts for
the sale of the Securities, or (iv) if trading in the Securities or in the
Dollar General Common Stock has been suspended or limited by the Commission or
the New York Stock Exchange, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market has
been suspended or limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by any of said exchanges
or by such system or by order of the Commission, the NASD or any other
governmental authority, or (v) if a banking moratorium has been declared by
either federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 6, 7
and 8 shall survive such termination and remain in full force and effect.
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SECTION 10. Default by One or More Underwriters. If one of the
Underwriters shall fail at Closing Time or a Date of Delivery to purchase the
Securities which it is obligated to purchase under this Agreement (the
"Defaulted Securities"), the non-defaulting Underwriter shall have the right,
within 24 hours thereafter, to make arrangements for the non-defaulting
Underwriter, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the non-defaulting Underwriter shall not
have completed such arrangements within such 24-hour period, then this Agreement
or, with respect to any Date of Delivery which occurs after the Closing Time,
the obligation of the Underwriters to purchase and of the Trust to sell the
Option Securities to be purchased and sold on such Date of Delivery, shall
terminate without liability on the part of the non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Trust to sell the relevant Option Securities,
as the case may be, either the non-defaulting Underwriter or the Trust shall
have the right to postpone the Closing Time or the relevant Date of Delivery, as
the case may be, for a period not exceeding seven days in order to effect any
required changes in the Trust Registration Statement or Trust Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention Syndicate Operations; notices to the
Trust shall be directed to it c/o Puglisi & Associates, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; and notices
to the Contracting Stockholder shall be directed to it c/o ▇▇▇ ▇▇▇▇▇▇, ▇▇.,
Dollar General Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Underwriters, the Trust and the Contracting Stockholder and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and
said controlling persons and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
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SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 15. No Personal Liability of Trustees. By executing and delivering
this Agreement, none of the trustees of the Trust assumes, and in no event shall
incur, any personal liability hereunder, other than as expressly provided by
law. By executing and delivering this Agreement, none of the trustees of the
Contracting Stockholder assumes, and in no event shall incur, any personal
liability hereunder, other than as expressly provided by law.
29
33
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust and the Contracting Stockholder a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the Underwriters, the Trust and the Contracting
Stockholder in accordance with its terms.
Very truly yours,
DOLLAR GENERAL STRYPES TRUST
By:
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Managing Trustee
▇▇▇▇▇▇ CHILDREN TRUST
By:
---------------------------------------------
▇▇▇ ▇▇▇▇▇▇, ▇▇., as Co-Trustee
By:
---------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Co-Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇, SACHS & CO.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By__________________________________
Authorized Signatory
30
34
SCHEDULE A
Number of
Initial
Name of Underwriter Securities
-------------------------------------------------- -------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.......................
▇▇▇▇▇▇▇, Sachs & Co............................
-------------
Total............................... 7,500,000
=============
Sch A-1
35
SCHEDULE B
DOLLAR GENERAL STRYPES TRUST
STRYPES
1. The initial public offering price of the Securities shall be
$_________ per STRYPES.
2. The purchase price for the Securities to be paid by the
Underwriters shall be $__________ per STRYPES, being an amount equal to
the initial public offering price set forth above less $_________ per
STRYPES.
3. The "Equity Appreciation Cap" with respect to the Securities
shall be $_________.
----------
(SM) Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
Sch B-1
36
EXHIBIT A
FORM OF OPINION OF THE TRUST'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)(iii)
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act, and all filings required
under the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
(ii) Under the Delaware Act and the Declaration, the Trust has the
requisite power and authority to own property and conduct its business as
described in the Trust Prospectus.
(iii) Under the Delaware Act and the Declaration, the Trust has the
requisite power and authority to (a) execute and deliver, and to perform its
obligations under, the Purchase Agreement and the Fundamental Agreements, and
(b) issue and perform its obligations under the STRYPES.
(iv) Under the Delaware Act and the Declaration, the execution and
delivery by the Trust of the Purchase Agreement and the Fundamental Agreements
have been duly authorized by the requisite trust action on the part of the
Trust.
(v) Each of the Fundamental Agreements has been duly executed and
delivered by the Trust and (assuming the due authorization, execution and
delivery thereof by the other parties thereto) constitutes a valid and binding
agreement of the Trust, enforceable against the Trust in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(vi) The STRYPES, the Trust Agreement and the Fundamental Agreements
conform in all material respects as to legal matters to the descriptions thereof
contained in the Trust Prospectus.
(vii) The Trust is registered with the Commission as a non-diversified,
closed-end management investment company under the 1940 Act; and, to the best of
our knowledge, no order of suspension or revocation of such registration has
been issued or proceedings therefor initiated or threatened by the Commission.
(viii) The Trust Registration Statement has been declared effective under
the 1933 Act; the required filing of the Trust Prospectus pursuant to Rule
497(h) was made in the manner and within the time period required by Rule
497(h); and, to the best of our knowledge, no stop order suspending the
effectiveness of the Trust Registration Statement pursuant to Section 8(d) of
the
▇-▇
▇▇
▇▇▇▇ ▇▇▇, or order pursuant to Section 8(e) of the 1940 Act, has been issued and
no proceedings for either such purpose have been instituted or are pending or
threatened by the Commission.
(ix) The Trust Registration Statement, as of its effective date, and the
Trust Prospectus, as of its issue date (in each case other than the financial
statements and supporting schedules and other financial data included therein or
omitted therefrom, as to which we express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1940 Act and the rules and regulations promulgated by the
Commission thereunder.
(x) The execution, delivery and performance by the Trust of the Purchase
Agreement and each Fundamental Agreement and the consummation by the Trust of
the transactions contemplated therein and in the Trust Registration Statement
(including the issuance and sale of the STRYPES and the delivery of the shares
of Dollar General Common Stock and/or cash in exchange therefor, the
consummation of the Forward Purchase and the use of the proceeds from the sale
of the STRYPES as described in the Trust Prospectus under the caption "Use of
Proceeds") and compliance by the Trust with its obligations under the Purchase
Agreement, the STRYPES and each Fundamental Agreement do not and will not,
whether with or without the giving of notice or lapse of time or both, conflict
with or constitute a breach of, or default or Repayment Event under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust pursuant to, any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to us, to which the Trust is a party or by which it may be
bound, or to which any of the property or assets of the Trust is subject (except
for such conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action result in
any violation of the provisions of the Declaration or the Trust Certificate, or
any applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Trust or any of its assets or properties.
(xi) To the best of our knowledge, there is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending or threatened against or affecting the
Trust, which is required to be disclosed in the Trust Registration Statement
(other than as disclosed therein), or which might, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect, or
which might, individually or in the aggregate, reasonably be expected to
materially and adversely affect the properties or assets of the Trust or the
consummation by the Trust of the transactions contemplated in the Purchase
Agreement or the Fundamental Agreements (including the issuance and sale of the
STRYPES and the delivery of the shares of Dollar General Common Stock and/or
cash in exchange therefor and the consummation of the Forward Purchase) or the
performance by the Trust of its obligations thereunder.
(xii) No declaration or filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency (other than under the 1933 Act and the 1933 Act
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which we express no
opinion) is necessary or required for the Trust to own or use its assets and to
conduct its business
A-2
38
in the manner described in the Trust Prospectus or for the performance by the
Trust of its obligations under the Purchase Agreement or any Fundamental
Agreement or the consummation by the Trust of the transactions contemplated
therein (including the issuance and sale of the STRYPES and the delivery of the
shares of Dollar General Common Stock and/or cash in exchange therefor and the
consummation of the Forward Purchase).
(xiii) The Dollar General Registration Statement has been declared
effective under the 1933 Act; and, to the best of our knowledge, no stop order
suspending the effectiveness of the Dollar General Registration Statement has
been issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(xiv) The Dollar General Registration Statement, excluding the documents
incorporated by reference therein, as of its effective date, and Dollar General
Prospectus, excluding the documents incorporated by reference therein, as of its
issue date (in each case other than the financial statements and supporting
schedules and other financial data included therein or omitted therefrom, as to
which we express no opinion) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
We have participated in conferences with the Trustees and representatives
of the Trust, officers and representatives of Dollar General and the Contracting
Stockholder, representatives of the independent accountants of the Trust and
Dollar General, and the Underwriters at which the contents of the Trust
Registration Statement and Prospectus, the contents of the Dollar General
Registration Statement and Prospectus and related matters were discussed and,
although we are not passing upon or assuming responsibility for the accuracy,
completeness or fairness of the statements contained or incorporated by
reference in said Registration Statements and Prospectuses and have made no
independent check or verification thereof, on the basis of the foregoing,
nothing has come to our attention that would lead us to believe (i) that the
Trust Registration Statement (except for financial statements and schedules and
other financial data included therein or omitted therefrom, as to which we make
no statement), at the time such Trust Registration Statement became effective or
at the date of the Purchase Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the Trust
Prospectus (except for financial statements and schedules and other financial
data included therein or omitted therefrom, as to which we make no statement),
at the time the Trust Prospectus was issued or at the Closing Time, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or (ii) that the
Dollar General Registration Statement (except for financial statements and
schedules and other financial data included or incorporated by reference therein
or omitted therefrom, as to which we make no statement), at the time the Dollar
General Registration Statement became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Dollar General Prospectus (except for financial statements and schedules and
other financial data included or incorporated by reference therein or omitted
therefrom, as to which we make no statement), at the time the Dollar General
Prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the
A-3
39
statements therein, in the light of the circumstances under which they were
made, not misleading.
A-4
40
EXHIBIT B
FORM OF OPINION OF THE TRUST'S DELAWARE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)(iv)
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act, and all filings required
under the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
(ii) Under the Delaware Act and the Trust Agreement, the Trust has the
requisite trust power and authority to own property and conduct its business,
all as described in the Trust Prospectus.
(iii) The Trust Agreement constitutes a valid and binding obligation of ML
IBK Positions, Inc. and the Trustees, and is enforceable against ML IBK
Positions, Inc. and the Trustees in accordance with its terms, except as
enforcement may be limited by (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation and other similar laws relating to or
affecting the rights and remedies of creditors generally, (ii) principles of
equity (regardless of whether considered and applied in a proceeding in equity
or at law), (iii) the law of fraudulent transfer, (iv) public policy, (v)
applicable law relating to fiduciary duties, and (vi) judicial imposition of an
implied covenant of good faith and fair dealing.
(iv) Under the Delaware Act and the Trust Agreement, the Trust has the
requisite trust power and authority to (i) execute and deliver, and to perform
its obligations under, the Purchase Agreement, the Forward Purchase Contract,
the Security and Pledge Agreement and the Fundamental Agreements, and (ii) issue
and perform its obligations under the Securities.
(v) Under the Delaware Act and the Trust Agreement, the execution and
delivery by the Trust of the Purchase Agreement, the Forward Purchase Contract,
the Security and Pledge Agreement and the Fundamental Agreements have been duly
authorized by the requisite trust action on the part of the Trust.
(vi) The Securities have been duly authorized by the Trust Agreement and
are duly and validly issued and, subject to the qualifications set forth in this
paragraph (6), fully paid and nonassessable undivided beneficial interests in
the assets of the Trust and are entitled to the benefits provided by the Trust
Agreement. The holders of the Securities, as beneficial owners of the Trust,
will be entitled to the same limitation on personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. Such counsel may note that the Holders
of the Securities may be obligated to make payments as set forth in the Trust
Agreement.
(vii) Under the Delaware Act and the Trust Agreement, the issuance of the
Securities is not subject to preemptive rights.
B-1
41
(viii) The issuance and sale by the Trust of the Securities, the
execution, delivery and performance by the Trust of the Purchase Agreement, the
Forward Purchase Contract, the Security and Pledge Agreement and the Fundamental
Agreements, the consummation by the Trust of the transactions contemplated
thereby and compliance by the Trust with its obligations thereunder do not
violate (i) any of the provisions of the Trust Certificate or the Trust
Agreement or (ii) any applicable Delaware law or administrative regulation
thereunder.
(ix) Except as previously made or obtained, as the case may be, no filing
with, or authorization, approval, consent or order of, any Delaware court or
governmental authority or agency is required to be made or obtained by the Trust
solely in connection with the execution or delivery by the Trust of the Purchase
Agreement, the Forward Purchase Contract, the Security and Pledge Agreement or
the Fundamental Agreements, or the consummation by the Trust of the transactions
contemplated thereby (including the issuance and sale of the Securities).
B-2
42
EXHIBIT C
FORM OF OPINION OF DOLLAR GENERAL'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)(v)
(i) Dollar General has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Kentucky.
(ii) Dollar General has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Dollar
General Prospectus and to enter into and perform its obligations under the
Registration Agreement.
(iii) Dollar General is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to be qualified
or to be in good standing would not result in a Material Adverse Effect.
(iv) The shares of issued and outstanding capital stock of the Company,
including the shares of Series A Preferred Stock owned by the Contracting
Stockholder, have been duly authorized and validly issued and are fully paid and
non-assessable and no holder of the Dollar General Common Stock is or will be
subject to personal liability by reason of being such a holder; and none of the
outstanding shares of capital stock of the Company, including the shares of
Series A Preferred Stock owned by the Contracting Stockholder, was issued in
violation of any preemptive or other similar rights of any securityholder of
Dollar General.
(v) Each Subsidiary has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Dollar General
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as otherwise
disclosed in the Dollar General Registration Statement, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to the best of our
knowledge, is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any Subsidiary was
issued in violation of the preemptive or similar rights of any securityholder of
such Subsidiary.
(vi) The Registration Agreement has been duly authorized, executed and
delivered by Dollar General.
C-1
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(vii) The Dollar General Registration Statement, including any Dollar
General Rule 462(b) Registration Statement, has been declared effective under
the 1933 Act; any required filing of the Dollar General Prospectus pursuant to
Rule 424(b) has been made in the manner and within the time period required by
Rule 424(b); and, to the best of our knowledge, no stop order suspending the
effectiveness of the Dollar General Registration Statement or any Dollar General
Rule 462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
(viii) The Dollar General Registration Statement, including any Dollar
General Rule 462(b) Registration Statement, the Rule 430A Information and the
Rule 434 Information, as applicable, the Dollar General Prospectus, excluding
the documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and Dollar General Prospectus,
excluding the documents incorporated by reference therein, as of their
respective effective or issue dates (other than the financial statements and
supporting schedules and other financial data included therein or omitted
therefrom, as to which we express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(ix) The documents incorporated by reference in the Dollar General
Prospectus (other than the financial statements and supporting schedules and
other financial data included therein or omitted therefrom, as to which we
express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material respects
with the requirements of the 1933 Act or the 1934 Act, as applicable, and the
rules and regulations thereunder.
(x) The form of certificate used to evidence the Dollar General Common
Stock complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the charter and by-laws of the
Dollar General and the requirements of the New York Stock Exchange.
(xi) To the best of our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which Dollar General or
any subsidiary is a party, or to which the property of Dollar General or any
subsidiary is subject, before or brought by any court or governmental agency or
body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Registration Agreement or the performance by
Dollar General of its obligations thereunder.
(xii) The information under "Description of Capital Stock" in Dollar
General's Registration Statement on Form 8-A filed with the Commission on April
27, 1970, and in the Dollar General Registration Statement under Item 15, to the
extent that it describes matters of law, summaries of legal matters, the
Company's Certificate of Incorporation or Bylaws, or legal conclusions, has been
reviewed by us and is correct in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Dollar General Prospectus that are not
described as required.
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(xiv) All descriptions in the Dollar General Registration Statement of
contracts and other documents to which Dollar General or any Subsidiary is a
party are accurate in all material respects; to the best of our knowledge, there
are no franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in the
Dollar General Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects.
(xv) To the best of our knowledge, neither Dollar General nor any
Subsidiary is in violation of its charter or by-laws or partnership agreement,
as the case may be, and no default by Dollar General or any Subsidiary exists in
the due performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is described or
referred to in the Dollar General Registration Statement or the Dollar General
Prospectus or filed or incorporated by reference as an exhibit to the Dollar
General Registration Statement.
(xvi) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign (other than under the 1933 Act and the 1933 Act
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which we express no
opinion) is necessary or required in connection with the due authorization,
execution and delivery of the Registration Agreement or for the offering,
issuance, sale or delivery of the Securities.
(xvii) The execution, delivery and performance of the Registration
Agreement and the consummation of the transactions contemplated in the
Registration Agreement and in the Dollar General Registration Statement and the
compliance by Dollar General with its obligations under the Registration
Agreement do not and will not, whether with or without the giving of notice or
lapse of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(x) of the Registration Agreement)
under or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any Subsidiary pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to us, to which the Company or
any Subsidiary is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Dollar General or any Subsidiary is
subject (except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or by-laws or
partnership agreement, as the case may be, of Dollar General or any Subsidiary,
or any applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over Dollar General or any Subsidiary
or any of their respective properties, assets or operations.
(xviii) To our knowledge, other than as described in the Dollar General
Prospectus, there are no persons with registration rights or other similar
rights to have any securities registered pursuant to the Dollar General
Registration Statement or otherwise registered by the Dollar General under the
1933 Act (other than rights which have been waived or satisfied).
C-3
45
(xix) The Company is not an "investment company" as such term is defined
in the 1940 Act.
We have participated in conferences with officers and representatives of
Dollar General and the Contracting Stockholder, representatives of the
independent accountants of Dollar General, and the Underwriters at which the
contents of the Dollar General Registration Statement and Dollar General
Prospectus and related matters were discussed and, although we are not passing
upon or assuming responsibility for the accuracy, completeness or fairness of
the statements contained or incorporated by reference in the Dollar General
Registration Statement and the Dollar General Prospectus and have made no
independent check or verification thereof, on the basis of the foregoing,
nothing has come to our attention that would lead us to believe that the Dollar
General Registration Statement (except for financial statements and schedules
and other financial data included therein or omitted therefrom, as to which we
make no statement), at the time such Dollar General Registration Statement
became effective or at the date of the Purchase Agreement, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Dollar General Prospectus (except for financial statements and
schedules and other financial data included therein or omitted therefrom, as to
which we make no statement), at the time the Dollar General Prospectus was
issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
As used in this Exhibit, the terms "Material Adverse Effect,"
"Subsidiary," and "Subsidiaries" shall have the meanings ascribed to them in the
Registration Agreement.
C-4
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EXHIBIT D
FORM OF OPINION OF COUNSEL FOR THE CONTRACTING STOCKHOLDER
TO BE DELIVERED PURSUANT TO
SECTION 5(a)(vi)
(i) The trust made pursuant to the Indenture of Trust has been duly
created and is a valid trust under the laws of the Commonwealth of Kentucky.
(ii) The Purchase Agreement has been duly executed and delivered by the
Contracting Stockholder.
(iii) Each of the Fund Expense Agreement, the Fund Indemnity Agreement,
the Forward Purchase Contract and the Security and Pledge Agreement has been
duly executed and delivered by the Contracting Stockholder and (assuming the due
authorization, execution and delivery thereof by the other parties thereto)
constitutes a valid and binding agreement of the Contracting Stockholder,
enforceable against the Contracting Stockholder in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(iv) The execution, delivery and performance by the Contracting
Stockholder of the Purchase Agreement, the Fund Expense Agreement, the Fund
Indemnity Agreement, the Forward Purchase Contract and the Security and Pledge
Agreement and the consummation by the Contracting Stockholder of the
transactions contemplated therein and compliance by the Contracting Stockholder
with their obligations thereunder do not and will not, whether with or without
the giving of notice or lapse of time or both, conflict with or constitute a
breach of, or default or Contracting Stockholder Repayment Event (as defined in
Section 1(b)(v) of the Purchase Agreement) under, or result in the creation or
imposition of any tax, lien, charge or encumbrance upon any property or assets
of the Contracting Stockholder (including the shares of Series A Preferred Stock
owned by the Contracting Stockholder) pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, license, lease or other
agreement or instrument, known to us, to which the Contracting Stockholder is a
party or by which the Contracting Stockholder may be bound, or to which any of
the property or assets of the Contracting Stockholder is subject (except for
such conflicts, breaches or defaults or liens, charges or encumbrances that
would not, singly or in the aggregate, materially and adversely affect the
ability of the Contracting Stockholder to perform its obligations under the
Purchase Agreement, the Fund Expense Agreement, the Fund Indemnity Agreement,
the Forward Purchase Contract or the Security and Pledge Agreement), nor will
such action result in any violation of the provisions of the Indenture of Trust
or any applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Contracting Stockholder or any
of its assets or properties (except for such violations that would not, singly
or
D-1
47
in the aggregate, materially and adversely affect the ability of the Contracting
Stockholder to perform its obligations under the Purchase Agreement, the Fund
Expense Agreement, the Fund Indemnity Agreement, the Forward Purchase Contract
or the Security and Pledge Agreement).
(v) No declaration or filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, other than under the 1933 Act and the 1933 Act
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states (as to which we express no
opinion), is necessary or required in connection with the due execution and
delivery by the Contracting Stockholder of the Purchase Agreement, the Fund
Expense Agreement, the Fund Indemnity Agreement, the Forward Purchase Contract
or the Security and Pledge Agreement or the performance by the Contracting
Stockholder of its obligations thereunder; and the Contracting Stockholder has
the full right, power and capacity to pledge and assign the shares of Series A
Preferred Stock to be pledged and assigned by the Contracting Stockholder
pursuant to the Security and Pledge Agreement and to sell, transfer and deliver
the shares of Dollar General Common Stock to be sold by the Contracting
Stockholder pursuant to the Forward Purchase Contract.
(vi) To the best of our knowledge, the Contracting Stockholder has all
rights in and to the shares of Series A Preferred Stock to be pledged and
assigned by the Contracting Stockholder pursuant to the Security and Pledge
Agreement, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, other than those created pursuant to the Security
and Pledge Agreement; and the shares of Series A Preferred Stock pledged by the
Contracting Stockholder as of the date hereof have been duly and validly
assigned, delivered and pledged by the Contracting Stockholder under the
Security and Pledge Agreement and such Security and Pledge Agreement, together
with such assignment, delivery and pledge, creates, as security for the
performance of the obligations of the Contracting Stockholder under the Forward
Purchase Contract, a valid first priority and perfected security interest in
such shares of Series A Preferred Stock prior to other liens. At the date
hereof, each share of Series A Preferred Stock is convertible into 4.625 shares
of Dollar General Common Stock.
(vii) If the Contracting Stockholder delivers to the Trust shares of
Dollar General Common Stock pursuant to the Forward Purchase Contract, upon
delivery by the Contracting Stockholder to the Trust of the shares of Dollar
General Common Stock pursuant to the Forward Purchase Contract (whether such
delivery is made on the business day immediately preceding the Exchange Date,
upon any acceleration of the Contracting Stockholder's obligation under the
Forward Purchase Contract or otherwise), the Trust will be the sole registered
owner of the shares of Dollar General Common Stock so delivered and, assuming
the Trust purchased for value and without notice of any adverse claim, the
Trust, assuming compliance with the Security and Pledge Agreement, will have
acquired all rights in and to such shares of Dollar General Common Stock, free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(viii) Upon the occurrence of an Event of Default specified in the
Security and Pledge Agreement, the rights of the Collateral Agent with respect
to the Collateral, as set forth in the Security and Pledge Agreement, shall
immediately become exercisable in accordance with the
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48
terms of the Security and Pledge Agreement, and such rights will not be subject
to any stay pursuant to Section 362(a) of Title 11 of the United States Code.
Because the primary purpose of our professional engagement was not to
establish or confirm factual matters or financial or accounting matters and
because of the wholly or partially non-legal character of many of the statements
contained in the Trust Registration Statement or the Trust Prospectus, we are
not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Trust Registration
Statement or the Trust Prospectuses and we make no representation that we have
independently verified the accuracy, completeness or fairness of such
statements. Without limiting the foregoing, we assume no responsibility for, and
have not independently verified, the accuracy, completeness or fairness of the
financial statements and the notes thereto and the schedules and other financial
data included in the Trust Registration Statement and we have not examined the
accounting or financial records from which such financial statements, notes,
schedules and data are derived.
However, on the basis of our participation, as counsel to the Contracting
Stockholder, with representatives of the Trust in the preparation of the Trust
Registration Statement and the Trust Prospectus, and our participation with the
Underwriters at meetings in which the contents of the Trust Registration
Statement and the Trust Prospectus and related matters were discussed and the
examination by us of such records, statutes, documents and questions of law as
we deemed necessary, but without independent verification by us of the accuracy,
completeness and fairness of the statements contained in the Trust Registration
Statement and the Trust Prospectus, nothing has come to our attention that would
lead us to believe that the Trust Registration Statement (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we make no statement), at the time such Trust
Registration Statement became effective or at the date of the Purchase
Agreement, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Trust Prospectus (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which we make no statement), at the time the Trust
Prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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