EXHIBIT 10.21
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of December 18, 1998, by
and among Dollar Financial Group, Inc., a New York corporation (the "Company"),
and GS Mezzanine Partners, L.P., a Delaware limited partnership, GS Mezzanine
Partners Offshore, L.P., a Cayman Islands limited partnership, Stone Street Fund
1998, L.P., a Delaware limited partnership, Xxxxxx Xxxxxx Xxxx 0000, L.P., a
Delaware limited partnership, Ares Leveraged Investment Fund, L.P., a Delaware
limited partnership and Ares Leveraged Investment Fund II, L.P., a Delaware
limited partnership (collectively, the "Initial Purchasers"), as the purchasers
of the 10-7/8% Senior Subordinated Notes Due 2006 of the Company.
1. Certain Definitions.
For purposes of this Agreement, the following terms shall have the following
respective meanings:
(a) "Closing Date" shall mean the date on which the Securities are
initially issued.
(b) "Commission" shall mean the Securities and Exchange Commission, or any
other successor federal agency at the time administering the Exchange Act or
the Securities Act, whichever is the relevant statute for the particular
purpose.
(c) "Common Stock" shall mean, collectively, shares of Class A Common
Stock, par value $.001 per share, and shares of Class B Common Stock, par
value $.001 per share, of Holdings.
(d) "Effective Time" in the case of an Exchange Offer, shall mean the date
on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and, in the case of a Shelf Registration, shall mean the date on which the
Commission declares the Shelf Registration effective or on which the Shelf
Registration otherwise becomes effective.
(e) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(f) "Exchange Offer" shall have the meaning assigned thereto in Section 2.
(g) "Exchange Securities" shall have the meaning assigned thereto in
Section 2. Exchange Securities have terms that are identical to Registrable
Securities; provided, however, that in accordance with the provisions of
Section 9.17 of the Purchase Agreement, a different series of Exchange
Securities may be issued, which series may differ as to relative ranking,
interest rate or yield, so long as the aggregate cost of the issuance to the
Company is not increased.
(h) The term "holder" shall mean the Initial Purchasers for so long as they
own any Registrable Securities and any other person who is a holder or
beneficial owner of any Registrable Securities, for so long as such person
owns any Registrable Securities.
(i) "Holdings" shall mean DFG Holdings, Inc., a Delaware corporation and
stockholder of the Company.
(j) "Indenture" have the meaning set forth in Section 2(a).
(k) "IPO" means the initial underwritten public offering of Holdings
pursuant to which any of the Common Stock becomes registered under Section 12
of the Exchange Act.
(l) "NASD" shall have the meaning set forth in Section 3(c)(xvii).
(m) The term "person" shall mean a corporation, limited liability company,
association, partnership, organization, business, individual, trust,
government or political subdivision thereof or governmental agency.
(n) "Purchase Agreement" shall mean the Purchase Agreement, dated as of
the date hereof, between the Company and the Initial Purchasers with respect
to the purchase by the Initial Purchasers of the Securities.
(o) "Registrable Securities" shall mean the Securities; provided, however,
that such Securities shall cease to be Registrable Securities when (i) in the
circumstances contemplated by Section 2(a), such Securities have been
exchanged for Exchange Securities in an Exchange Offer as contemplated in
Section 2(a) by a person other than a broker-dealer, (ii) in the case of a
broker-dealer, following the exchange of such Securities for Exchange
Securities by such broker-dealer, the date on which such Exchange Securities
have been sold to a purchaser who receives from such broker-dealer on or prior
to the date of such sale a copy of the prospectus for use in connection with
resales by broker-dealers referred to in Section 2(a); (iii) in the
circumstances contemplated by Section 2(b), a registration statement
registering such Securities under the Securities Act has been declared or
becomes effective and such Securities have been sold or otherwise transferred
by the holder thereof pursuant to such effective registration statement; (iv)
such Securities are sold pursuant to Rule 144 under circumstances in which any
legend borne by such Securities relating to restrictions on transferability
thereof, under the Securities Act or otherwise, is removed by the Company or
such Securities are eligible to be sold pursuant to paragraph (k) of Rule 144;
or (iv) such Securities shall cease to be outstanding.
(p) "Registration Default" shall have the meaning set forth in Section
2(c).
(q) "Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
(r) "Request Date" shall have the meaning set forth in Section 2(a).
(s) "Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405 under the Securities Act, (ii) a holder
who acquires Exchange Securities outside the ordinary course of such holder's
business or (iii) a holder who has arrangements or understandings with any
person to participate in the Exchange Offer for the purpose of distributing
Exchange Securities.
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(t) "Rule 144", "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act.
(u) "Rules of Conduct" shall have the meaning set forth in Section
3(c)(xvii).
(v) "Securities" shall mean, collectively, the $20 million aggregate
principal amount of 10-7/8% Senior Subordinated Notes of the Company, due on
the earlier of the 8th anniversary of the Closing Date or December 31, 2006,
to be issued and sold to the Initial Purchasers and securities issued in
exchange therefor.
(w) "Securities Act" shall mean the Securities Act of 1933, as amended.
(x) "Shelf Registration" shall have the meaning assigned thereto in Section
2(b).
(y) "Special Interest" shall have the meaning set forth in Section 2(c).
(z) "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended.
Unless the context otherwise requires, any reference herein to a "Section" or
"clause" refers to a Section or clause, as the case may be, of this Agreement,
and the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular Section or
other subdivision. Unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any successor statute,
rule or regulation thereto) as it may be amended from time to time.
2. Registration Under the Securities Act.
(a) The Company shall at the written request of any holders of Registrable
Securities aggregating at least 51% in aggregate principal amount of the
Registrable Securities at the time outstanding, which request may be made at any
time after the earlier of (x) the first anniversary of the Closing Date and (y)
three (3) months after the occurrence of an IPO (the date such request is made,
the "Request Date"), file with the Commission a registration statement relating
to an offer to exchange (the "Exchange Offer") any and all of the Securities for
a like aggregate principal amount of debt securities of the Company which are
substantially identical to the Securities (and which are entitled to the
benefits of a trust indenture which has been qualified under the Trust Indenture
Act (the "Indenture")) except that they have been registered pursuant to an
effective registration statement under the Securities Act and will not contain
provisions for the special interest contemplated by Section 2(c) hereof or
provisions restricting transfer; provided, however, that at the request of
holders of all of the Securities, such debt securities may differ as to relative
ranking, interest rate or yield, so long as the aggregate cost of the issuance
to the Company is not increased (such new debt securities hereinafter called
"Exchange Securities"). The Company agrees to use its best efforts to cause such
registration statement to be filed not later than 45 days after such request and
to become effective under the Securities Act as soon as practicable, but no
later than 120 days after the Request Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will comply with
all applicable tender offer rules and regulations under the Exchange Act. The
Company further agrees to use its best efforts to commence and complete the
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Exchange Offer promptly after such registration statement has become effective,
hold the Exchange Offer open for at least 30 business days and exchange the
Exchange Securities for all Registrable Securities that have been tendered and
not withdrawn on or prior to the expiration of the Exchange Offer. The Exchange
Offer will be deemed to have been completed only if the Exchange Securities
received by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each such holder
without restriction under the Securities Act and without material restrictions
under the blue sky or securities laws of a substantial majority of the States of
the United States of America, it being understood that broker-dealers receiving
Exchange Securities will be subject to certain prospectus delivery requirements
with respect to resale of the Exchange Securities. The Exchange Offer shall be
deemed to have been completed upon the earlier to occur of (i) the Company
having exchanged the Exchange Securities for all outstanding Registrable
Securities pursuant to the Exchange Offer and (ii) the Company having exchanged,
pursuant to the Exchange Offer, Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn before the
expiration of the Exchange Offer, which shall be on a date that is at least 30
business days following the commencement of the Exchange Offer. The Company
agrees (i) to include in the registration statement a prospectus for use in any
resales by any holder of Securities that is a broker-dealer and (ii) to keep
such registration statement effective for a period ending on the earlier of the
180th day after the Exchange Offer has been completed or such time as such
broker-dealers no longer own any Registrable Securities. With respect to such
regis tration statement such holders shall have the benefit of the rights of
indemnification and contribution set forth in Section 6 hereof.
(b) In addition to conducting the Exchange Offer contemplated by Section 2(a)
above, upon the request in writing of any holders of Registrable Securities
aggregating at least 51% in aggregate principal amount of the Registrable
Securities at the time outstanding, which request may be made at any time after
the earlier of (x) the first anniversary of the Closing Date and (y) three (3)
months after the occurrence of an IPO, the Company shall file under the
Securities Act as soon as practicable a "shelf" registration statement (to the
extent the Company then qualifies for such filing) providing for the
registration of, and the sale on a continuous or delayed basis by the holders
of, all of the Registrable Securities, pursuant to Rule 415 under the Securities
Act and/or any similar rule that may be adopted by the Commission (the "Shelf
Registration"). The Company agrees to use its best efforts to file the
registration statement relating to the Shelf Registration not later than 45 days
after such request obligation arises and to cause the Shelf Registration to
become or be declared effective no later than 120 days after such obligation
arises, and to keep such Shelf Registration continuously effective until the
earlier of (i) two (2) years from the effective date thereof or (ii) such time
as there are no longer any Registrable Securities outstanding, subject to the
Securities Act and the rules and regulations thereunder. The Company further
agrees to supplement or make amendments to the Shelf Registration, as and when
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration or by the
Securities Act or rules and regulations thereunder for shelf registration, and
the Company agrees to furnish to the holders of the Registrable Securities
copies of any such supplement or amendment prior to its being used and/or filed
with the Commission.
(c) In the event that (i) the Company has not filed (a) the registration
statement relating to the Exchange Offer on or before the date such statement is
required to be filed pursuant to
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Section 2(a) or (b) the Shelf Registration on or before the date such statement
is required to be filed pursuant to Section 2(b) or (ii) either such
registration statement has not become effective or been declared effective by
the Commission on or before the date such statement is required to be declared
to be effective pursuant to Section 2(a) and Section 2(b), respectively, or
(iii) the Exchange Offer has not been completed within 45 business days (or such
necessary longer period, if any, pending any necessary approval or non-objection
by or, any filing with, any governmental or regulatory authority being sought in
good faith by appropriate proceedings promptly initiated and diligently
conducted) after the initial effective date of the registration statement (if
the Exchange Offer is then required to be made) or (iv) any registration
statement required by Section 2(a) or 2(b) is filed and declared effective but
shall thereafter ceases to be effective or usable for transfers of Registrable
Securities during the periods referred to in Sections 2(a) and 2(b) without
being succeeded immediately by an additional registration statement filed and
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then the Company shall pay in cash a special
incremental increase of the interest rate on the Securities ("Special Interest")
to each holder thereof in an amount of 0.50% (or 50 basis points) per annum for
the first 120 days following the occurrence of the first Registration Default
Period and in an amount of 1.0% (or 100 basis points) per annum thereafter and
for so long as any Registration Default is in effect (after which such Special
Interest shall cease to be payable). In the event that any Special Interest
becomes payable, the Company shall promptly notify the trustee designated by the
Indenture of such event, including any subsequent increase in the amount of
Special Interest, and the beginning and ending dates therefor.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a) or
Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture under
the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of a
new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the Shelf
Registration, if appli cable, the Company shall use its best efforts to effect
or cause the Shelf Registration to permit the sale of the Registrable Securities
by the holders thereof in accordance with the intended method or methods of
distribution thereof described in the Shelf Registration. In connection
therewith, the Company shall:
(i) as soon as reasonably possible, prepare and file with the Commission
a registration statement with respect to the Shelf Registration on any form
which may be utilized by the Company and which shall permit the disposition of
the Registrable Securities in accordance with the intended method or methods
thereof, as specified in writing by the holders of the Registrable Securities,
and use its best efforts to cause such registration statement to become
effective as soon as reasonably possible thereafter in accordance with Section
2(b);
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(ii) as soon as reasonably possible, prepare and file with the
Commission such amendments and supplements to such registration statement
and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such registration statement for the period
specified in Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions applicable to
the form of such registration statement, and furnish to the holders of the
Registrable Securities copies of any such supplement or amendment prior to
its being used and/or filed with the Commission;
(iii) as soon as reasonably possible, comply with the provisions of the
Securities Act with respect to the disposition of all of the Registrable
Securities covered by such registration statement in accordance with the
intended methods of disposition by the holders thereof set forth in such
registration statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement, (B) the underwriters (which term,
for purposes of this Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the Securities Act) if
any, thereof, (C) the sales or placement agent therefor, if any, (D)
counsel for such underwriters or agent, and (E) not more than one counsel
for all the holders of such Registrable Securities the opportunity to
participate in the preparation of such registration statement, each
prospectus included therein or filed with the Commission, and each
amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such registration
statement, and throughout the period specified in Section 2(b), make
available at reasonable times at the Company's principal place of business
or such other reasonable place for inspection by the parties referred to in
Section 3(c)(iv) who shall certify to the Company that they have a current
intention to sell the Registrable Securities pursuant to the Shelf
Registration such financial and other information and books and records of
the Company, and cause the officers, employees, counsel and independent
certified public accountants of the Company to respond to such inquiries,
as shall be reasonably necessary, in the reasonable judgment of the
respective counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by the Company in writing as being
confidential, until such time as (A) such information becomes a matter of
public record, other than by an impermissible disclosure by such party
(whether by virtue of its inclusion in such registration statement or
otherwise), or (B) such person shall be required, or shall deem it
advisable, so to disclose such information pursuant to the subpoena or
order of any court or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order, and only after
such person shall have given the Company prompt prior written notice
thereof), or (C) such information is required to be set forth in such
registration statement or the prospectus included therein or in an
amendment to such registration statement or an amendment or supplement to
such prospectus in order that such registration statement, prospectus,
amendment or supplement, as the case may be, does not contain an untrue
statement of a material fact or omit to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
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(vi) promptly notify the selling holders of Registrable Securities, the
sales or placement agent, if any, therefor and the managing underwriter or
underwriters, if any, thereof and confirm such advice in writing, (A) when
such registration statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such registration statement or any post-
effective amendment, when the same has become effective, (B) of any
comments by the Commission, the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effective ness of such
registration statement or the initiation or threatening of any proceedings
for that purpose, (D) if at any time the representations and warranties of
the Company contemplated by Section 3(c)(xv) or Section 5 cease to be true
and correct in all material respects, (E) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) at any time when a
prospectus is required to be delivered under the Securities Act, that such
registration statement, prospectus, prospectus amendment or supplement or
post-effective amendment, or any document incorporated by reference in any
of the foregoing, contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances
then existing;
(vi) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any post-
effective amendment thereto at the earliest practicable date;
(vi) if requested by any managing underwriter or underwriters, any
placement or sales agent or any holder of Registrable Securities, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of the
Commission and as such managing underwriter or underwriters, such agent or
such holder specifies should be included therein relating to the terms of
the sale of such Registrable Securities, including, without limitation,
information with respect to the principal amount of Registrable Securities
being sold by such holder or agent or to any underwriters, the name and
description of such holder, agent or underwriter, the offering price of
such Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
offering of the Registrable Securities to be sold by such holder or agent
or to such underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(ix) furnish to each holder of Registrable Securities, each placement or
sales agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(c)(iv) an executed copy of such
registration statement, each such amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by reference
therein) and such number of copies of such registration statement
(excluding exhibits thereto and documents incorporated by reference therein
unless specifically and reasonably so requested
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by such holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including each preliminary
prospectus and any summary prospectus), in conformity with the requirements of
the Securities Act, and such other documents, as such holder, agent, if any,
and underwriter, if any, may reasonably request in order to facilitate the
offering and disposition of the Registrable Securities owned by such holder,
offered or sold by such agent or underwritten by such underwriter and to
permit such holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby consents to the use
of such prospectus (including such preliminary and summary prospectus) and any
amendment or supplement thereto by each such holder and by any such agent and
underwriter, if any, in each case in the form most recently provided to such
party by the Company, in connection with the offering and sale of the
Registrable Securities covered by the prospectus (including such preliminary
and summary prospectus) or any supplement or amendment thereto;
(x) use its best efforts to (A) register or qualify the Registrable
Securities to be included in such registration statement under such
securities laws or blue sky laws of such jurisdictions as any holder of
such Registrable Securities and each placement or sales agent, if any,
therefor and underwriter, if any, thereof shall reasonably request, (B)
keep such registrations or qualifications in effect and comply with such
laws so as to permit the continuance of offers, sales and dealings therein
in such jurisdictions during the period the Shelf Registration is required
to remain effective under Section 2(b) above and for so long as may be
necessary to enable any such holder, agent or underwriter, if any, to
complete its distribution of Securities pursuant to such registration
statement and (C) take any and all other actions as may be reasonably
necessary or advisable to enable each such holder, agent, if any, and
underwriter, if any, to consummate the disposition in such jurisdictions of
such Registrable Securities; provided, however, that the Company shall not
be required for any such purpose to (1) qualify as a foreign corporation in
any jurisdiction wherein it would not otherwise be required to qualify but
for the requirements of this Section 3(c)(x), (2) consent to general
service of process or taxation in any such jurisdiction or (3) make any
changes to its articles of incorporation or by-laws or any agreement
between it and its stockholders;
(xi) use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state, provincial or
local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling holder or
holders to offer, or to consummate the disposition of, their Registrable
Securities; provided, however, that the Company shall not be required for
any such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but for
the requirements of this Section 3(c)(xi), (2) consent to general service
of process or taxation in any such jurisdiction or (3) make any changes to
its articles of incorporation or by-laws or any agreement between it and
its stockholders;
(xii) cooperate with the holders of the Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
which certificates shall not bear any restrictive legends;
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(xiii) provide a CUSIP number for all Registrable Securities, not later
than the effective date of the Shelf Registration;
(xiv) enter into one or more reasonable forms of underwriting
agreements, engagement letters, agency agreements, "best efforts"
underwriting agreements or similar agreements, as appropriate, including
(without limitation) customary provisions relating to indemnification and
contribution, and take such other actions in connection therewith as any
holders of Registrable Securities aggregating at least 51% in aggregate
principal amount of the Registrable Securities to be included in such Shelf
Registration shall reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities; provided, however, that the
Company shall not be required to enter into any such agreement more than
twice with respect to all of the Registrable Securities and may delay
entering into such agreement until the consummation of any underwritten
public offering which the Company shall have then engaged;
(xv) whether or not an agreement of the type referred to in Section
(3)(c)(xiv) hereof is entered into and whether or not any portion of the
offering contemplated by such registration statement is an underwritten
offering or is made through a placement or sales agent or any other entity,
(A) make such representations and warranties to the holders of such
Registrable Securities and the placement or sales agent, if any, therefor
and the underwriters, if any, thereof in form, substance and scope as are
customarily reasonably made in connection with an offering of debt
securities pursuant to any appropriate agreement and/or to a registration
statement filed on the form applicable to the Shelf Registration; (B)
obtain an opinion or opinions of counsel to the Company in customary form
and covering such other matters of the type customarily covered by such an
opinion, as the managing underwriters, if any, and as any holders of at
least 51% in aggregate principal amount of the Registrable Securities to be
included in such Shelf Registration may reasonably request, addressed to
such holder or holders and the placement or sales agent, if any, therefor
and the underwriters, if any, thereof and dated the effective date of such
registration statement (and if such registration statement contemplates an
underwritten offering of a part or all of the Registrable Securities, dated
the date of the closing under the underwriting agreement relating thereto)
(it being agreed that such opinion shall be in substantially the same form
as is required pursuant to Section 3.04 of the Purchase Agreement, with
such differences as is appropriate to reflect a registered transaction and
the particular form on which such Shelf Registration is filed); (C) obtain
a "cold comfort" letter or letters from the independent certified public
accountants of the Company addressed to the selling holders of Registrable
Securities and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof, dated (i) the effective date of such
registration statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such registration statement or
post-effective amendment to such registration statement which includes
unaudited or audited financial statements as of a date or for a period
subsequent to that of the latest such statements included in such
prospectus (and, if such registration statement contemplates an
underwritten offering pursuant to any prospectus supplement to the
prospectus included in such registration statement or post-effective
amendment to such registration statement which includes unaudited or
audited financial statements as of a date or for a period subsequent to
that of the latest such statements included in such prospectus, dated the
date of the closing under the underwriting agreement relating thereto),
such letter or letters to be in customary form and covering such matters of
the type customarily covered by letters of such type; (D) deliver such
documents and
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certificates, including officers' certificates, as may be reasonably requested
by any holders of at least 51% in aggregate principal amount of the
Registrable Securities to be included in such Shelf Registration and the
placement or sales agent, if any, therefor and the managing underwriters, if
any, thereof to evidence the accuracy of the representations and warranties
made pursuant to clause (A) above or those contained in Section 5(a) hereof
and the compliance with or satisfaction of any agreements or conditions
contained in the underwriting agreement or other agreement entered into by the
Company; and (E) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of any
proposal by the Company to amend or waive any provision of this Agreement
pursuant to Section 9(h) hereof and of any amendment or waiver effected
pursuant thereto, each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case may be;
(xvii) in the event that any broker-dealer registered under the Exchange
Act shall underwrite any Registrable Securities or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Conduct (the "Rules of
Conduct") of the National Association of Securities Dealers, Inc. ("NASD"))
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Rules of Conduct, including, without limitation, by
(A) if such Rules of Conduct shall so require, engaging a "qualified
independent underwriter" (as defined in such Rules of Conduct) to
participate in the preparation of the registration statement relating to
such Registrable Securities, to exercise usual standards of due diligence
in respect thereto and, if any portion of the offering contemplated by such
registration statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Registrable
Securities, (B) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 6
hereof, and (C) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the requirements of
the Rules of Conduct; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders not later
than eighteen months after the effective date of such registration
statement, an earning statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158 thereunder) .
(d) In the event that the Company would be required, pursuant to Section
3(c)(vi)(F) above, to notify the selling holders of Registrable Securities, the
placement or sales agent, if any, therefor and the managing underwriters, if
any, thereof, the Company shall without delay prepare and furnish to each such
holder, to each placement or sales agent, if any, and to each underwriter, if
any, a reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to Initial Purchasers of Registrable Securities,
such prospectus shall 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 in light of the circumstances then existing.
Each holder of Registrable Securities agrees that upon receipt of any notice
from the Company pursuant
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to Section 3(c)(vi)(F) hereof, such holder shall forthwith discontinue the
disposition of Registrable Securities pursuant to the registration statement
applicable to such Registrable Securities until such holder shall have received
copies of such amended or supplemented prospectus, and if so directed by the
Company, such holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such holder's possession of
the prospectus covering such Registrable Securities at the time of receipt of
such notice.
(e) The Company may require each holder of Registrable Securities as to which
any registration is being effected to furnish to the Company such information
regarding such holder and such holder's intended method of distribution of such
Registrable Securities as the Company may from time to time reasonably request
in writing, but only to the extent that such information is required in order to
comply with the Securities Act. Each such holder agrees to notify the Company as
promptly as practicable of any inaccuracy or change in information previously
furnished by such holder to the Company or of the occurrence of any event in
either case as a result of which any prospectus relating to such registration
contains or would contain an untrue statement of a material fact regarding such
holder or such holder's intended method of distribution of such Registrable
Securities or omits to state any material fact regarding such holder or such
holder's intended method of distribution of such Registrable Securities required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish to the
Company any additional information required to correct and update any previously
furnished information or required so that such prospectus shall not contain,
with respect to such holder or the distribution of such Registrable Securities,
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
in light of the circumstances then existing.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid all expenses
incident to the Company's performance of or compliance with this Agreement,
including, without limitation, (a) all Commission and any NASD registration and
filing fees and expenses, (b) all fees and expenses in connection with the
qualification of the Securities or Exchange Securities for offering and sale
under the State securities and blue sky laws referred to in Section 3(c)(x)
hereof, including reasonable fees and disbursements of counsel for the placement
or sales agent or underwriters in connection with such qualifications, (c) all
expenses relating to the preparation, printing, distribution and reproduction of
each registration statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the certificates representing the Securities and
Exchange Securities and all other documents relating hereto, (d) messenger and
delivery expenses, (e) fees and expenses of the Trustee under the Indenture and
of any escrow agent or custodian, (f) internal expenses (including, without
limitation, all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (g) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance), (h) reasonable fees, disbursements and
expenses of any "qualified independent underwriter" engaged pursuant to Section
3(c)(xvii) hereof, (i) reasonable fees, disbursements and expenses of one
counsel for the holders of Registrable Securities retained in connection with a
Shelf Registration, as selected by the holders of at least a
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majority in aggregate principal amount of the Registrable Securities being
registered, and fees, expenses and disbursements of any other persons, including
special experts, retained by the Company in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are incurred, assumed or paid by any holder of Registrable Securities
or any placement or sales agent therefor or underwriter thereof, the Company
shall reimburse such person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency fees and commissions and underwriting discounts
and commissions attributable to the sale of such Registered Securities and the
fees and disbursements of any counsel or other advisors or experts retained by
such holders (severally or jointly), other than the counsel and experts
specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, the Initial
Purchasers and each of the holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable Securities and each
prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(c)(ix) hereof and any further
amendments or supplements to any such registration statement or prospectus,
when it becomes effective or is filed with the Commission, as the case may be,
and, in the case of an underwritten offering of Registrable Securities, at the
time of the closing under the underwriting agreement relating thereto, will
conform in all material respects to the requirements of the Securities Act and
the Trust Indenture Act and any such registration statement and any amendment
thereto 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 and any such prospectus or any amendment or
supplement thereto 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 in light of the circumstances then
existing; and at all times subsequent to the Effective Time when a prospectus
would be required to be delivered under the Securities Act, other than from
(i) such time as a notice has been given to holders of Registrable Securities
pursuant to Section 3(c)(vi)(F) hereof until (ii) such time as the Company
furnishes an amended or supplemented prospectus pursuant to Section 3(d)
hereof, each such registration statement, and each prospectus (including any
summary prospectus) contained therein or furnished pursuant to Section
3(c)(ix) hereof, as then amended or supplemented, will conform in all material
respects to the requirements of the Securities Act and the Trust Indenture Act
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 in the light of the circumstances then
existing; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by a holder of
Registrable Securities, or any sales or placement agent, if any, or
underwriter, if any, expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the
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case may be, will conform or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
none of such documents will contain or contained an untrue statement of a
material fact or will omit or omitted to state a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances then existing not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to the Company by a holder of Registrable Securities, or any sales or
placement agent, if any, or underwriter, if any, expressly for use therein.
(c) The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
subsidiary of the Company is a party or by which the Company or any subsidiary
of the Company is bound or to which any of the property or assets of the
Company or any subsidiary of the Company is subject nor will such action
result in any violation of the provisions of the articles of incorporation or
by-laws of the Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or
any subsidiary of the Company or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement, except the
registration under the Securities Act of the Registrable Securities,
qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under State securities or blue sky laws in connection with the
offering and distribution of the Registrable Securities.
(d) This Agreement has been duly authorized, executed and delivered by the
Company.
6. Indemnification.
(a) Indemnification by the Company. Upon the registration of the Registrable
Securities pursuant to Section 2 hereof, and in consideration of the agreements
of the Initial Purchasers contained herein, and as an inducement to the Initial
Purchasers to purchase the Securities, the Company shall, and it hereby agrees
to, indemnify and hold harmless each of the holders of Registrable Securities to
be included in such registration, and each person who participates as a
placement or sales agent or as an underwriter in any offering or sale of such
Registrable Securities against any losses, claims, damages or liabilities, joint
or several, to which such holder, agent or underwriter may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
registration statement under which such Registrable Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Company shall, and hereby it agrees to, reimburse such
holder, such agent and such underwriter for any legal or other expenses
reasonably incurred by them in
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connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
to any such person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto (i) in reliance upon and in conformity with
written information furnished to the Company by holders of Registrable
Securities, or any sales or placement agent, if any, or underwriter, if any,
expressly for use therein or (ii) if and to the extent that such untrue
statement or omission or alleged untrue statement or omission is eliminated or
remedied by the Company through furnishing such holder of Registrable Securities
a supplemented or amended prospectus pursuant to Section 3(d) hereof prior to
the use by such holder of Registrable Securities of a prospectus that has not
been so supplemented or amended and from which the need to indemnify arises;
(b) Indemnification by the Holders and any Agents and Underwriters. The
Company may require, as a condition to including any Registrable Securities in
any registration statement filed pursuant to Section 2 hereof and to entering
into any underwriting agreement with respect thereto, that the Company shall
have received an undertaking reasonably satisfactory to it from the holder of
such Registrable Securities and from each underwriter named in any such
underwriting agreement, severally and not jointly, to indemnify and hold
harmless the Company and all other holders of Registrable Securities, against
any losses, claims, damages or liabilities to which the Company or such other
holders of Registrable Securities may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such holder, agent or underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
holder or underwriter expressly for use therein, provided, however, that no such
holder shall be required to undertake liability to any person under this Section
6(b) for any amounts in excess of the dollar amount of the net proceeds to be
received by such holder from the sale of such holder's Registrable Securities
pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indem nification provisions
of or contemplated by this Section 6, notify such indemnifying party in writing
of the commencement of such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not,
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except with the consent of the indemnified party (which consent shall not be
unreasonably withheld), be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
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. No
indemnifying party shall be liable for the cost of any settlement effected by an
indemnified party without the written consent of such indemnifying party, which
consent shall not be unreasonably withheld.
(d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contributions pursuant to this
Section 6(d) were determined by pro rata allocation (even if the holders or any
agents or underwriters or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any reasonable legal or other fees or expenses reasonably incurred by
such indemnified party in connec tion with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6(d), no holder
shall be required to contribute any amount in excess of the amount by which the
dollar amount of the net proceeds received by such holder from the sale of any
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) exceeds the amount of any damages which such holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no underwriter shall be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable 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 such untrue or
alleged untrue statement or omission or
-15-
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each officer, director and partner of each holder,
agent and underwriter and each person, if any, who controls any holder, agent or
underwriter within the meaning of the Securities Act; and the obliga tions of
the holders and any underwriters contemplated by this Section 6 shall be in
addition to any liability which the respective holder or underwriter may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company including any person who, with his consent,
is named in any registration statement as about to become a director of the
Company and to each person, if any, who controls the Company within the meaning
of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities covered by
the Shelf Registra tion are to be sold pursuant to an underwritten offering, the
managing underwriter or underwriters thereof shall be designated by the holders
of at least a majority in aggregate principal amount of the Registrable
Securities to be included in such offering, provided that such designated
managing underwriter or underwriters is or are reasonably acceptable to the
Company.
(b) Participation by Holders. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (1) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and (iii) provides
such information as reasonably requested by the Company, any sales or placement
agent, if any, or underwriter, if any, in connection with the underwritten
offering.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that to the
extent it shall be required to do so under the Exchange Act, it shall timely
file the reports required to be filed by it under the Exchange Act or the
Securities Act (including, but not limited to, the reports under Section 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144) and
the rules and regulations adopted by the Commission thereunder, and shall take
such further action as any holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the Securities Act within
the limitations of the exemption provided by Rule 144 or any similar rule or
regulation hereafter adopted by the Commission; provided, however, that the
holders of Registrable Securities will not sell the Registrable Securities
pursuant to any such statutory registration exemption prior to the first
-16-
anniversary of the Closing Date. Upon the request of any holder of Registrable
Securities in connection with that holder's sale pursuant to Rule 144, the
Company shall deliver to such holder a written statement as to whether it has
complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants, covenants
and agrees that it has not granted, and shall not grant, registration rights
with respect to Registrable Securities or any other securities which would be
inconsistent with the terms contained in this Agreement.
(b) Specific Performance. The parties hereto acknowledge that there would be
no adequate remedy at law if any party fails to perform any of its obligations
hereunder and that each party may be irreparably harmed by any such failure, and
accordingly agree that each party, in addition to any other remedy to which it
may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under this Agreement in
accordance with the terms and conditions of this Agreement, in any court of the
United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000, Attention:
President, with a copy to Xxxxxxx X. Annick, c/o Xxxxxxx Xxxxx & Partners, L.P.,
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 and if
to a holder, to the address of such holder set forth in the security register or
other records of the Company, or to such other address as any party may have
furnished to the others in writing in accordance herewith, except that notices
of change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Agreement shall
be binding upon, shall inure to the benefit of and shall be enforceable by the
respective successors and assigns of the parties hereto. In the event that any
transferee of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a party hereto for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities such transferee shall be entitled
to receive the benefits of and be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the
-17-
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND CON STRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and paragraphs
of this Agreement are inserted for convenience only, do not constitute a part of
this Agreement and shall not affect in any way the meaning or interpretation of
this Agreement.
(h) Entire Agreement; Amendments. This Agreement and the other writings
referred to herein (including the Indenture and the form of Securities) or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter. This Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a written instrument
duly executed by the Company and the holders of at least a majority in aggregate
principal amount of the Registrable Securities at the time outstanding. Each
holder of any Registrable Securities at the time or thereafter outstanding shall
be bound by any amendment or waiver effected pursuant to this Section 9(h),
whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of the
Company at the address thereof set forth in Section 9(c) above and at the office
of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
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Agreed to and accepted as of the date referred to above.
DOLLAR FINANCIAL GROUP, INC.
By:/s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
GS MEZZANINE PARTNERS, L.P.
By: GS Mezzanine Advisors, L.P.,
its general partner
By: GS Mezzanine Advisors, Inc.,
its general partner
By:/s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney-in-fact
GS MEZZANINE PARTNERS OFFSHORE, L.P.
By: GS Mezzanine Advisors (Cayman), L.P.,
its general partner
By: GS Mezzanine Advisors, Inc.,
its general partner
By:/s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney-in-fact
STONE STREET FUND 1998, L.P.
By: Stone Street Advantage Corp.
General Partner
By:/s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney-in-fact
-00-
XXXXXX XXXXXX XXXX 0000, L.P.
By: Stone Street Advantage Corp.
Managing General Partner
By:/s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney-in-fact
ARES LEVERAGED INVESTMENT FUND, L.P.
By: ARES Management, L.P.
By: ARES Operating Member, LLC,
its General Partner
By:/s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: ARES Management II, L.P.
By: ARES Operating Member II, LLC,
its General Partner
By:/s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
-20-
